Competency to Stand Trial: Evaluations and Inconsistencies in Who Bears the Burden of Proof

by Madisen Zent, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

The United States courts of appeal (“Circuit Courts”) sometimes disagree on legal issues, creating a circuit split.[1] These circuit splits often attract the attention of the Supreme Court, which has the authority to resolve these splits to ensure litigants receive equal treatment across the country. However, the Court has been relatively silent regarding an ongoing circuit split concerning who has the burden of proof for a hearing on the competency to stand trial.[2]

This article explores the current circuit split regarding if the government or the defendant bears the burden of proof for competency to stand trial hearings and investigates how and why the Court should no longer take a passive stance on the issue. Part II examines the different ways in which Circuit Courts allocate the burden of proof for competency to stand trial and the Court’s passive response. Part III discusses the necessity for the Court to resolve this circuit split and why placing the burden of proof on the government is the best solution. Finally, Part IV reiterates why the Court should resolve this split.  

II. Background

From the time a criminal proceeding begins until the end of the defendant’s sentence, the defendant or the government can file a motion for a hearing to determine the mental competency of the defendant under 18 USCS § 4241.[3] In a competency hearing, the trial court must determine whether, based on a preponderance of the evidence, the defendant presently lacks the capacity to understand the nature of the criminal proceedings, to consult with counsel, and to assist in preparing his or her defense.[4] Proceeding to trial despite a defendant’s lack of competency violates that defendant’s right to a fair trial.[5] Though the statute requires a preponderance of the evidence as the burden of proof, it fails to clarify whether the prosecution or the defense carries that burden of proving incompetence.

Neither the prosecution, the court, nor the defense commonly raises the issue of competence and even when raised, defendants are seldomly found incompetent to stand trial.[6] Yet, the issue of competency is an important facet of the criminal justice system since the government violates a defendant’s right to a fair trial if it tries an incompetent defendant.[7] In Missouri v. Drope, the Court stated there was a due process violation when the government tried a defendant who lacked the competence to understand the proceedings before them and adequately assist their counsel in the proceedings.[8] The importance of competency is to “jealously guard” a defendant’s right to a fair trial.[9] While Drope should not be read to require a competency hearing in every trial, once there is reason to doubt the defendant’s competence, a competency hearing must be held.[10] Since 18 U.S.C § 4241(a) does not provide guidance on who bears the burden of proof, various Circuit Courts have expressed different holdings on this issue.[11] Despite this circuit split, the Supreme Court has yet to provide any clarity.[12]

1. The Supreme Court’s Passive Stance Regarding Competency Hearings

Despite the constitutional importance of the issue, the Court has only reluctantly and indirectly addressed the issue of allocating the burden of proof for competency hearings. In Medina v. California, the Court held that while trying a defendant who is incompetent violates their due process right to a fair trial, that does not necessarily place the burden of proving competence on the government.[13] The Court acknowledged the unsettled jurisprudence of allocating the burden of proof for competency but did not go so far as to resolve the issue.[14] Instead, the Court noted that placing the burden on the defendant did not offend the Fundamental Fairness Doctrine for due process purposes.[15] The Fundamental Fairness Doctrine prohibits any acts that would prevent a defendant from receiving a fair trial.[16] A due process violation occurs when the government fails to observe fundamental fairness because fairness is essential to our system of justice.[17] Based on a historical understanding of fairness, the Court found there was no fundamental fairness violation in placing the burden of proving incompetency on the defendant.[18]

Subsequent cases contain the same reasoning as Medina.[19] Specifically, in Cooper v. Oklahoma, the Court stated that allocating the burden is a procedural rule that will affect the outcome of only a few cases because “the evidence that a defendant is competent is just as strong as the evidence that he is incompetent.”[20] Consequently, the Court held that there is no fundamental fairness issue to place the burden of proof on either party in competency hearings, given the outcome will be the same.[21]

Therefore, in at least two cases, the Court has not explicitly decided whether the government or the defendant should bear the burden of proof under 18 U.S.C. § 4241. Instead, the Court only commented that placing the burden on either side is inconsequential. This ambivalence has led to differences among the Circuit Courts, resulting in a circuit split.

2. The Circuit Split Over Allocating the Burden of Competency to Stand Trial

The Circuit Courts are divided on how they choose to allocate the burden in competency hearings. The United States Courts of Appeal for the Fourth and Tenth Circuits (“Fourth and Tenth Circuits”) place the burden on the defendant to prove they are incompetent to stand trial, while the United States Courts of Appeal for the Third, Fifth, and Ninth Circuits (“Third, Fifth, and Ninth Circuits”) place the burden on the state to prove the defendant is competent to stand trial.[22] While the United States Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”) places the burden of proof on the party that raises the issue of competency.[23]

The Fourth and Tenth Circuits have placed the burden of proof in competency hearings on the Defendant, thus requiring the Defendant to prove by a preponderance of the evidence that they are incompetent to stand trial.[24] The Fourth and Tenth Circuits rely on the dicta from Cooper v. Oklahoma, which discussed how placing the burden of competency to stand trial on the defendant did not violate fundamental fairness because the allocation of  the burden would only be a problem in a narrow class of cases.[25] The Fourth and Tenth Circuits argue that because the evidence of incompetency to stand trial is neutral, the burden allocation will likely not be outcome-determinative.[26] Furthermore, some of the lower courts have expressed fears that if defendants do not bear the burden, they will simply use competency hearings as a way to delay prosecution.[27]

The Third, Fifth, and Ninth Circuits place the burden of proof at competency hearings on the government, requiring them to prove by a preponderance of the evidence that the defendant is competent.[28] In United States v. Hutson, the United States Court of Appeals for the Fifth Circuit found the district court erred in not placing the burden on the state to prove that Ms. Hutson was still competent to stand trial.[29] The Hutson court required the case be remanded and if a meaningful hearing could still not be conducted, Ms. Hutson was to be deemed incompetent to stand trial.[30] In United States v. Frank, the United States Court of Appeals for the Ninth Circuit found the government met its burden of proving Mr. Frank was competent to stand trial.[31] The Third, Fifth, and Ninth Circuits are concerned with issues relating to fundamental fairness when allocating the burden of who must prove competency to stand trial.[32] Fundamental fairness goes back to the concern that a person who meets the incompetency standard cannot be awarded a fair trial.[33]

The most expansive discussion of fundamental fairness was by the United States Court of Appeals for the Third Circuit (“Third Circuit”) in United States v. DiGilio.[34] In DiGilio, the Third Circuit found the district court erred in placing the burden of proving incompetency on Mr. DiGilio.[35] The Third Circuit explicitly stated that “there is no room for a rule of law placing any burden of proof on the defendant” in competency to stand trial determinations because the concept of competency to stand trial is grounded in notions of fundamental fairness.[36] The court explained that a defendant who may be incompetent will also be unable to understand the fact he lacks competency, and thus will be unable to prove his incompetency.[37] Furthermore, the court stated the allocation of the burden would be decisive in a competency hearing.[38] Therefore, the court remanded the case to the district court for them to reconduct the competency hearing with the burden of proof of competency on the government.[39] The rationale is easy to comprehend: if the defendant is unable to understand the entire proceeding that they are involved in, then it is unlikely that the defendant would be able to understand or assist in proving their incompetence and so requiring them to do so would result in an unfair hearing.[40]

The Eleventh Circuit has allocated the burden of proof for competency to stand trial by focusing on who raises the issue.[41] This view allocates the burden on a case-by-case basis depending on the circumstances present. For example, in United States v. Izquierdo, the Eleventh Circuit found the district court did not err in placing the burden of proving incompetency on Mr. Izquierdo because he did not raise the issue or request a hearing until his motion to withdraw the plea.[42] The Eleventh Circuit discussed how the language of the competency statute allows motions for competency assessments by either the government or the defendant, indicating that both parties have a role in these evaluations.[43] Under this view, the burden of proving competency or incompetency will be allocated according to whether the prosecution or the defense raised the issue.[44] Since, Mr. Izquierdo was the one asking the district court to analyze his incompetency claim, the burden of proof was on him.[45]

The rationale behind the Eleventh Circuit’s decision is that in most cases whomever raises claims in court, is the party who bears the burden of proof. For example, in criminal cases the government is the one raising the claims so, they must prove their case beyond a reasonable doubt. Opposingly, when a defendant raises an affirmative defense, they are required to meet the relevant burden of proof.

III. Discussion

The Circuit Courts continue to vary as to who bears the burden of proving competency. This circuit split has caused different standards to be applied to different criminal defendants who have issues of competency arising in their trials. As such, the Court needs to resolve the circuit split by assigning the burden of proof in competency hearings on the government.  

The Court should be concerned with preventing fundamental fairness violations based on the constitutional importance of protecting criminal defendants’ due process rights. Due process rights are the minimum protections awarded to criminal defendants while they are navigating the criminal justice system. Competency to stand trial is a fundamental right and its importance has consistently been reiterated in the case law.[46] Competence to stand trial is rudimentary and has been compared to other rights essential to a fair trial such as the right to effective counsel,  the right to confront and cross examine witnesses, and the right to testify.[47] As such, the Court needs to be concerned with how competency hearings are conducted and the consistency in results.

Consistency within criminal procedure is important for criminal defendants and those working in the criminal justice system. Consistency is foundational in ensuring fairness for different defendants across the nation. The burdens that defendants bear in criminal proceedings should not vary depending on where they stand trial. Especially, when the issue involves their constitutional right to a fair trial.

Furthermore, the criminal justice system is already confusing and difficult to navigate.[48] A lack of consistency in how a defendant is treated only perpetuates this confusion. This is especially important when it comes to competency determination, given that one prong of the standard is to determine if the defendant can understand the proceedings.[49] If the defendant already struggles to understand the proceedings and there is added confusion due to inconsistency, the trial is simply unfair. The Court needs to resolve the issue of allocating the burden for competency hearings to promote consistency in procedures and thus legitimize the criminal system. Furthermore, the issue of competency is solely about fairness, which is hindered by the inconsistency in procedures followed.

The burden of proof in competency hearing should be placed on the government to prove the person they are trying is competent. The government has the duty to protect a defendant’s fundamental rights, especially concerning the right to a fair trial.[50] Here, the fundamental right that needs to be protected is the right for the defendant to understand the proceedings before them and assist in their defense. As such, the burden should never be shifted to the defendant to prove their own incompetence. Placing the burden on the defendant to prove incompetence is not adequately protecting their fundamental right. Interpreting the standard this way disregards the necessity described in the case law to “jealously guard” the defendant’s right to a fair trial by not ensuring the defendant is competent to stand trial.[51]

Moreover, placing the burden on the party that raises the issue raises the same problems.[52] Under 18 U.S.C. § 4241(a), the prosecution, defendant, or the court can raise the issue of competency. In many cases, the defendant or defense counsel has more access to their client’s mental competency, but that should not be a mechanism by which the government can negate its duty to guard the defendant’s right to a fair trial. The government has the responsibility to prevent people who are incompetent from being denied a fair trial. Regardless of who raises the issue, the responsibility and thus the burden should not change.

For this reason, the burden should be on the government to prove competence to stand trial and not on the defendant. The defendant is not the party who has the responsibility to protect their own fundamental rights. The defendant is the one that needs protection; therefore, they should not be expected to prove their own incompetence.

IV. Conclusion

The Court has alluded that the allocation of the burden of proof in competency hearings is inconsequential, so the Court will not affirmatively decide on the issue. Yet, as discussed above, solving circuit splits concerning fundamental rights should be of the highest importance to the Court. Unfair trials should never proceed, yet the Court is refusing to protect defendants in competency hearings, in turn causing defendants’ rights to be violated by the Court’s inaction.  

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[1] Circuit Split, Legal Information Institute (July 2022), https://www.law.cornell.edu/wex/circuit_split.

[2] U.S. v. Whittington, 586 F.3d 613, 617 (8th Cir. 2009).

[3] 18 U.S.C. § 4241(a).

[4] Id.

[5] Id.

[6] See Stephen G. Noffsinger & Phillip J. Resnick, Criminal Competencies, in Principles and Practice of Forensic Psychiatry (Richard Rosner & Charles Scott, eds., 2017) (discussing that defense attorneys bring up the issue of competency to stand trial in 8%-15% and only approximately 20%-30% of those motions find the defendant incompetent). 

[7] See Pate v. Robinson, 383 U.S. 375, 385 (1966) & Drope v. Missouri, 420 U.S. 162, 171 (1975).

[8] Drope, 420 U.S. at 171-73 (1975).

[9] Id. at 173 (1975) (quoting Pate v. Robinson, 383 U.S. 375, 385 (1966)).

[10] Id. at 171-73 (1975).

[11] U.S. v. Whittington, 586 F.3d 613, 617 (8th Cir. 2009).

[12] Id.

[13] Medina v. California, 505 U.S. 437, 445 (1992).

[14] Id.

[15] Id. at 450.

[16] Lisenba v. California, 314 U.S. 219, 236 (1941).

[17] Id.

[18] Procedural Due Process, Legal Information Institute  (Jan. 2024), https://www.law.cornell.edu/wex/procedural_due_process.

[19] See Cooper v. Oklahoma, 517 U.S. 348, 355 (1996).

[20] Id. (quoting Medina v. California, 505 U.S. 437, 449 (1992)).

[21] Id.

[22] See U.S. v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005); U.S. v. Smith, 521 F.2d 374, 377 (10th Cir. 1975); U.S. v. Velasquez, 885 F.2d 1076, 1089 (3d Cir. 1989); U.S. v. Hutson, 821 F.2d 1015, 1018 (5th Cir. 1987); U.S. v. Frank, 956 F.2d 872, 875 (9th Cir. 1991).

[23] U.S. v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006).

[24] See Robinson, 404 F.3d at 856; Smith, 521 F.2d at 377.

[25] Cooper v. Oklahoma, 517 U.S. 348, 355 (1996).

[26] Id.

[27] U.S. v. DiTomasso, 2015 U.S. Dist. LEXIS 161014 at *3.

[28] See U.S. v. Velasquez, 885 F.2d 1076, 1089 (3d Cir. 1989); U.S. v. Hutson, 821 F.2d 1015, 1018 (5th Cir. 1987); U.S. v. Frank, 956 F.2d 872, 875 (9th Cir. 1991).

[29] Hutson, 821 F.2d at 1018.

[30] Id. at 1021.

[31] Frank, 956 F.2d at 875.

[32] U.S. v. DiGilio, 538 F.2d 972, 986 (3d Cir. 1976).

[33] Drope v. Missouri, 420 U.S. 162, 171-73 (1975).

[34] DiGilio, 538 F.2d at 986 (3d Cir. 1976).

[35] Id.

[36] Id. at 988.

[37] Id.   

[38] Id. at 989.

[39] Id.

[40] Id.

[41] U.S. v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006).

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] See Pate v. Robinson, 383 U.S. 375, 385 (1966); Drope v. Missouri, 420 U.S. 162, 171 (1975); Cooper v. Oklahoma, 517 U.S. 348, 355 (1996).

[47] Cooper, 517 U.S. at 354.

[48] Gideon v. Wainwright, 372 U.S. 335, 339-340 (1963).

[49] 18 U.S.C. § 4241(a).

[50] U.S. Const. amend. V.

[51] Drope, 420 U.S. at 171-73.

[52] U.S. v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006).

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Cover Photo by Rhett Gross on Flickr.