Cite as: 517 U. S. 348 (1996)
Opinion of the Court
Likewise, we are aware of no decisional law from this country suggesting that any State employed Oklahoma's heightened standard until quite recently. Rather, the earliest available sources typically refer to English authorities, see, e. g., Freeman v. People, 47 Am. Dec. 216, 223-225 (N. Y. 1847), State v. Harris, 78 Am. Dec. 272, 272-275 (N. C. 1860) (adopting procedures outlined in King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), and King v. Pritchard, 7 Car. & P. 303, 173 Eng. Rep. 135 (1836)), and employ the disjunctive language used by the English courts, see, e. g., Commonwealth v. Hathaway, 13 Mass. 299 (1816); People v. Kleim, 1 N. Y. 13, 15 (1845); Harris, 78 Am. Dec., at 275; United States v. Chisolm, 149 F. 284, 290 (SD Ala. 1906).12 By the turn of the 20th century, however, American courts were explicitly applying a preponderance standard. In 1896, Ohio juries were instructed that "[t]he burden is upon the prisoner to show by a preponderance of the proof that he is insane." State v. O'Grady, 5 Ohio Dec. 654, 655 (1896).13 Some 15 years later, the Tennessee Supreme Court described the competency determination as
12 In Commonwealth v. Braley, 1 Mass. 102, 103 (1804), a case decided shortly after the Constitution was ratified, the court instructed the jury to consider "whether [the accused] neglected or refused to plead to the indictment against him for murder, of his free will and malice, or whether he did so neglect by the act of God." This instruction may be a precursor to the "sane or insane" disjunctive.
13 See also State v. Tyler, 7 Ohio N. P. 443, 444 (1898) ("What I mean by the preponderance of the evidence is that the accused must show that he is now at the time of this trial probably not sane"). Cf. People v. Ah Ying, 42 Cal. 18, 20 (1872) (jury should find defendant presently insane if "satisfied" by the evidence supporting that conclusion).
Both Tyler and State v. O'Grady are instructive concerning the proper interpretation of the authorities which articulate no standard of proof but phrase the inquiry in the disjunctive. In each case the jury was told that its task was to determine whether the accused "is or is not sane," Tyler, 7 Ohio N. P., at 443, see also O'Grady, 5 Ohio Dec., at 654, and then explicitly instructed that the defendant bore the burden of proof by a preponderance of the evidence. Tyler, 7 Ohio N. P., at 443; O'Grady, 5 Ohio Dec., at 655.
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