Cite as: 517 U. S. 348 (1996)
Opinion of the Court
By comparison to the defendant's interest, the injury to the State of the opposite error—a conclusion that the defendant is incompetent when he is in fact malingering—is modest. To be sure, such an error imposes an expense on the state treasury and frustrates the State's interest in the prompt disposition of criminal charges. But the error is subject to correction in a subsequent proceeding and the State may detain the incompetent defendant for "the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [competence] in the foreseeable future." Jackson v. Indiana, 406 U. S. 715, 738 (1972).21
The Oklahoma Court of Criminal Appeals correctly observed that the "inexactness and uncertainty" that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering. 889 P. 2d, at 303. We presume, however, that it is unusual for even the most artful malingerer to feign incompetence successfully for a period of time while under professional care.22 In this regard it is worth reiterating that only four jurisdictions currently consider it necessary to impose on the criminal defendant the burden of proving incompetence by clear and convincing evidence. Moreover, there is no reason to believe that the art of dissimilation is new. Eighteenth and nineteenth century courts, for example, warned jurors charged with making competency determinations that " 'there may be great fraud in this matter,' " King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep., at 136, n. (a) (quoting
21 Under Jackson, if the defendant regains competence or is found to be malingering, the State may proceed to trial.
22 Sir John Hawles, Solicitor General to King William III (who reigned from 1689-1702), noted that "there is a great difference between pretences and realities, and sana and non sana memoria hath been often tryed in capital matters, and the prisoners have reaped so little benefit by their pretences, it being always discovered, that we rarely hear of it." Hawles, Remarks on the Trial of Mr. Charles Bateman (1685), 11 How. St. Tr. 474, 478 (1816).
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