Cooper v. Oklahoma, 517 U.S. 348, 13 (1996)

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Opinion of the Court

"controlled by the preponderance of the proof," Jordan v. State, 124 Tenn. 81, 89, 135 S. W. 327, 329 (1911), and the highest court of Pennsylvania held that competence is "decided by a preponderance of the evidence," Commonwealth v. Simanowicz, 242 Pa. 402, 405, 89 A. 562, 563 (1913).14

These early authorities are bereft of language susceptible of supporting a clear and convincing evidence standard.15

Contemporary practice demonstrates that the vast majority of jurisdictions remain persuaded that the heightened standard of proof imposed on the accused in Oklahoma is not necessary to vindicate the State's interest in prompt and orderly disposition of criminal cases. Only 4 of the 50 States presently require the criminal defendant to prove his incompetence by clear and convincing evidence.16 None of the re-14 See also State v. Arnold, 12 Iowa 479, 484 (1861) ("A doubt must be raised whether at the time there is such mental impairment . . . as to render it probable that the prisoner can not, as far as may devolve upon him, have a full, fair and impartial trial"); People v. McElvaine, 125 N. Y. 596, 608, 26 N. E. 929, 933 (1891) (the court "was familiar with the appearance and conduct of the prisoner during the period of that trial, and had sufficient grounds before it to judge as to the probability of his present sanity"). See also Crocker v. State, 19 N. W. 435, 436 (Wis. 1884); United States v. Chisolm, 149 F. 284, 290 (SD Ala. 1906).

Several of the early cases explicitly mention the common-law roots of the State's statutory procedure for determining competency. See People v. McElvaine, 125 N. Y., at 608, 26 N. E., at 932 ("We do not think the Code of Criminal Procedure has made any radical change in the mode of procedure or the character of the [competency] proceedings"); French v. State, 67 N. W. 706, 710 (Wis. 1896) ("The statute . . . providing for an inquisition, where there is a probability that the accused is, at the time of his trial, insane, and thereby incapacitated to act for himself, to determine whether he is so insane, is substantially a provision in affirmance of a power the court had at common law in such cases, as abundantly appears from the authorities").

15 Oklahoma all but concedes that early common law and statutory decisions employed a standard of proof lower than clear and convincing. See Brief for Respondent 21-23.

16 Conn. Gen. Stat. 54-56d(b) (1995); Okla. Stat., Tit. 22, 1175.4 (1991); 50 Pa. Cons. Stat. 7403(a) (Supp. 1995); and R. I. Gen. Laws 40.1-5.3-3 (Supp. 1995). The adoption of the clear and convincing evidence standard

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