466
Blackmun, J., dissenting
view will likely have no outlet in, or effect on, the competency determination. Unlike the testimony of medical specialists or lay witnesses, the testimony of defense counsel is far more likely to be discounted by the factfinder as self-interested and biased. Defense counsel may also be discouraged in the first place from testifying for fear of abrogating an ethical responsibility or the attorney-client privilege. See, e. g., ABA Criminal Justice Mental Health Standards § 7-4.8(b), Commentary Introduction, p. 209, and Commentary, pp. 212-213 (1989). By way of example from the case at hand, it should come as little surprise that neither of Medina's two attorneys was among the dozens of persons testifying during the six days of competency proceedings in this case. 1 Tr. 1-5 (witness list).
Like many psychological inquiries, competency evaluations are "in the present state of the mental sciences . . . at best a hazardous guess however conscientious." Solesbee v. Balkcom, 339 U. S., at 23 (Frankfurter, J., dissenting). See also Ake v. Oklahoma, 470 U. S., at 81; Addington v. Texas, 441 U. S. 418, 430 (1979); Drope, 420 U. S., at 176. This unavoidable uncertainty expands the range of cases where the factfinder will conclude the evidence is in equipoise. The Court, however, dismisses this concern on grounds that " '[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.' " Ante, at 451 (quoting Patterson, 432 U. S., at 208). Yet surely the Due Process Clause requires some conceivable steps be taken to eliminate the risk of erroneous convictions. I search in vain for any guiding principle in the Court's analysis that determines when the risk of a wrongful conviction happens to be acceptable and when it does not.
The allocation of the burden of proof reflects a societal judgment about how the risk of error should be distributed between litigants. Cf. Santosky v. Kramer, 455 U. S. 745, 755 (1982) (standard of proof). This Court has said it well
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