Cooper v. Oklahoma, 517 U.S. 348, 10 (1996)

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Cite as: 517 U. S. 348 (1996)

Opinion of the Court

the jury to "diligently inquire . . . whether John Frith, the now prisoner at the bar . . . be of sound mind and understanding or not . . . ." Id., at 311. Some 50 years later the jurors received a nearly identical admonition in Queen v. Goode, 7 Ad. & E. 536, 112 Eng. Rep. 572 (K. B. 1837): " 'You shall diligently inquire, and true presentment make . . . whether John Goode . . . be insane or not . . . .'" Id., at 536, n. (a), 112 Eng. Rep., at 572-573, n. (a)2.8 Similarly, in King v. Pritchard, 7 Car. & P. 303, 173 Eng. Rep. 135 (1836), the court empaneled a jury to consider "whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial . . . ." Ibid. See also King v. Dyson, 73 Car. & P. 305, n. (a), 173 Eng. Rep. 135-136, n. (a) (1831); Queen v. Southey, 4 F. & F. 864, 895, 176 Eng. Rep. 825, 838 (1865); Queen v. Berry, 1 Q. B. Rep. 447, 449 (1876). Ibid.9

These authorities, while still speaking less clearly than we

might wish, are instructive. By phrasing the inquiry in a simple disjunctive, Frith, Goode, and Pritchard suggest that traditional practice required the jury to determine whether the defendant was "more likely than not" incompetent. Nothing in the jury instructions of these cases will bear the interpretation of a clear and convincing standard. What is more, the cases contain no indication that the use of a pre-8 Courts often referred to the prisoner's insanity (or present insanity) rather than incompetence, even when the proceeding concerned the defendant's competence to stand trial. Beginning with the earliest cases, the issue at a sanity or competency hearing has been "whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge." King v. Pritchard, 7 Car. & P. 303, 304, 173 Eng. Rep. 135 (1836).

9 In 1800 England codified the common-law rule that a court could empanel a jury to determine whether a defendant charged with treason, murder, or a felony offense was competent to stand trial. Criminal Lunatics Act, 1800, 39 & 40, Geo. 3, ch. 94, 2.

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