text:
    COOPER v. OKLAHOMA
    No. 95-5207.
    Argued January 17, 1996
    Decided April 16, 1996

      Stevens, J., delivered the opinion for a unanimous Court.

      Robert A. Ravitz argued the cause and filed briefs for petitioner.

      W. A. Drew Edmondson, Attorney General of Oklahoma, argued the cause for respondent. With him on the brief was Sandra D. Howard, Assistant Attorney General.

      Briefs of amici curiae urging reversal were filed for the American Association on Mental Retardation et al. by James W. Ellis and Barbara E. Bergman; and for the National Association of Criminal Defense Lawyers by Charles D. Weisselberg, Dennis E. Curtis, Denise Meyer, and Larry J. Fleming.

      A brief of amicus curiae urging affirmance was filed for the State of Utah et al. by Jan Graham, Attorney General of Utah, J. Kevin Murphy,
        Assistant Attorney General, and Carol Clawson, Solicitor General, John M. Bailey, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Gale A. Norton of Colorado, M. Jane Brady of Delaware, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Michael C. Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, Betty D. Montgomery of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, and James S. Gilmore III of Virginia.

   Justice Stevens

delivered the, opinion of the Court.

In Oklahoma the defendant in a criminal prosecution is presumed to be competent to stand trial unless he proves his incompetence by clear and convincing evidence. Okla. Stat., Tit. 22, § 1175.4(B) (1991). Under that standard a defendant may be put to trial even though it is more likely than not that he is incompetent. The question we address in this case is whether the application of that standard to petitioner violated his right to due process under the Fourteenth Amendment.

I

In 1989 petitioner was charged with the brutal killing of an 86-year-old man in the course of a burglary. After an Oklahoma jury found him guilty of first-degree murder and recommended punishment by death, the trial court imposed the death penalty. The Oklahoma Court of Criminal Appeals affirmed the conviction and sentence.

Petitioner’s competence was the focus of significant attention both before and during his trial. On five separate occasions á judge considered whether petitioner had the ability to understand the charges against him and to assist defense counsel. On the first occasion, a pretrial judge relied on the opinion of a clinical psychologist employed by the State to find petitioner incompetent. Based on that determination, he committed petitioner to a state mental health facility for treatment.

Upon petitioner’s release from the hospital some three months later, the trial judge heard testimony concerning petitioner’s competence from two state-employed psychologists. These experts expressed conflicting opinions regarding petitioner’s ability to participate in his defense. The judge resolved the dispute against petitioner, ordering him to proceed to trial.

At the close of a pretrial hearing held one week before the trial was scheduled to begin, the lead defense attorney raised the issue of petitioner’s competence for a third time. Counsel advised the court that petitioner was behaving oddly and refusing to communicate with him. Defense counsel opined that it would be a serious matter “if he’s not faking.” App. 6. After listening to counsel’s concerns, however, the judge declined to revisit his earlier determination that petitioner was competent to stand trial.

Petitioner’s competence was addressed a fourth time on the first day of trial, when petitioner’s bizarre behavior prompted the court to conduct a further competency hearing at which the judge observed petitioner and heard testimony from several lay witnesses, a third psychologist, and petitioner himself. The expert concluded that petitioner was presently incompetent and unable to communicate effectively with counsel, but that he could probably achieve competence within six weeks if treated aggressively. While stating that he did not dispute the psychologist’s diagnosis, the trial judge ruled against petitioner. In so holding, however, the court voiced uncertainty:

“Well, I think I’ve used the expression ... in the past that normal is like us. Anybody that’s not like us is not normal, so I don’t think normal is a proper definition that we are to use with incompetence. My shirtsleeve opinion of Mr. Cooper is that he’s not normal. Now, to say he’s not competent is something else.
“But you know, all things considered, I suppose it’s possible for a client to be in such a predicament that he can’t help his defense and still not be incompetent. I suppose that’s a possibility, too.
“I think it’s going to take smarter people than me to make a decision here. I’m going to say that I don’t believe he has carried the burden by clear and convincing evidence of his incompetency and I’m going to say we’re going to go to trial.” Id., at 42-43.

Incidents that occurred during the trial, as well as the sordid history of petitioner’s childhood that was recounted during the sentencing phase of the proceeding, were consistent with the conclusions expressed by the expert. In a final effort to protect his client’s interests, defense counsel moved for a mistrial or a renewed investigation into petitioner’s competence. After the court summarily denied these motions, petitioner was convicted and sentenced to death.

In the Court of Criminal Appeals, petitioner contended that Oklahoma’s presumption of competence, combined with its statutory requirement that a criminal defendant establish incompetence by clear and convincing evidence, Okla. Stat., Tit. 22, § 1175.4(B) (1991), placed such an onerous burden on him as to violate his right to due process of law. The appellate court rejected this argument.' After noting that it can be difficult to determine whether a defendant is malingering, given “the inexactness and uncertainty attached to [competency] proceedings,” the court held that the standard was justified because the “State has great interest in assuring its citizens a thorough and speedy judicial process,” and because a “truly incompetent criminal defendant, through his attorneys and experts, can prove incompetency with relative ease.” 889 P. 2d 293, 303 (1995). We granted certiorari to review the Court of Criminal Appeals’ conclusion that application of the clear and convincing evidence standard does not violate due process. 516 U. S. 910 (1995).

II

No one questions the existence of the fundamental right that petitioner invokes. We have repeatedly and consistently recognized that “the criminal trial of an incompetent defendant violates due process.” Medina v. California, 505 U. S. 437, 453 (1992); Drope v. Missouri, 420 U. S. 162, 171-172 (1975); Pate v. Robinson, 383 U. S. 375, 378 (1966). Nor is the significance of this right open to dispute. As Justice Kennedy recently emphasized:

“Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so. Drope v. Missouri, 420 U. S. 162, 171-172 (1975).” Riggins v. Nevada, 504 U. S. 127, 139-140 (1992) (opinion concurring in judgment).

The test for incompetence is also well settled. A defendant may not be put to trial unless he “‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.’ ” Dusky v. United States, 362 U. S. 402, 402 (1960) (per curiam).

Our recent decision in Medina v. California, 505 U. S. 437 (1992), establishes that a State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence. Id., at 449. In reaching that conclusion we held that the relevant inquiry was whether the presumption “ 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Id., at 445 (quoting Patterson v. New York, 432 U. S. 197, 202 (1977)). We contrasted the “deep roots in our common-law heritage” underlying the prohibition against trying the incompetent with the absence of any settled tradition concerning the allocation of the burden of proof in a competency proceeding. 505 U. S., at 446. Our conclusion that the presumption of competence offends no recognized principle of “fundamental fairness” rested in part on the fact that the procedural rule affects the outcome “only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent.” Id., at 449.

The question we address today is quite different from the question posed in Medina. Petitioner’s claim requires us to consider whether a State may proceed with a criminal trial after the defendant has demonstrated that he is more likely than not incompetent. Oklahoma does not contend that it may require the defendant to prove incompetence beyond a reasonable doubt. The State maintains, however, that the clear and convincing standard provides a reasonable accommodation of the opposing interests of the State and the defendant. We are persuaded, by both traditional and modern practice and the importance of the constitutional interest at stake, that the State’s argument must be rejected.

III

“Historical practice is probative of whether a procedural rule can be characterized as fundamental,” Medina, 505 U. S., at 446. In this case, unlike in Medina, there is no indication that the rule Oklahoma seeks to defend has any roots in prior practice. Indeed, it appears that a rule significantly more favorable to the defendant has had a long and consistent application.

We turn first to an examination of the relevant common-law traditions of England and this country. The prohibition against trying the incompetent defendant was well established by the time Hale and Blackstone wrote their famous commentaries. 4 W. Blackstone, Commentaries *24 (“[I]f a man in his sound memory commits a capital offence ... [a]nd if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence?”); 1 M. Hale, Pleas of the Crown *34-*35 (same). The English cases which predate our Constitution provide no guidance, however, concerning the applicable standard of proof in competency determinations. See Trial of Charles Bateman (1685), reported in 11 How. St. Tr. 464, 467 (1816), and Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 How. St. Tr. 474, 476 (1816) (noting that the court in the 1685 trial incurred “censure” for proceeding to trial with a doubt as to the defendant’s competence); Kinloch’s Case (1746), 18 How. St. Tr. 395, 411 (1813); King v. Steel, 1 Leach 452, 168 Eng. Rep. 328 (1787).

Beginning in the late 18th century, cases appear which provide an inkling of the proper standard. In King v. Frith, 22 How. St. Tr. 307 (1790), for example, the court instructed 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. Similarly, in King v. Pritchard, 7 Car. & R 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. & R 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.

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 preponderance standard represented a departure from earlier (pre-Constitution) practice.

Modern English authority confirms our interpretation of these early cases as applying a preponderance standard. Relying on “principles . . . laid down in a number of cases,” including Pritchard and King v. Dyson, 7 Car. & R 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), the court in Queen v. Podola, 43 Crim. App. 220, 3 All E. R. 418 (1959), ruled:

“If the contention that the accused is insane is put forward by the defence and contested by the prosecution, there is, in our judgment, a burden upon the defence of satisfying the jury of the accused’s insanity. In such a case, as in other criminal cases in which the onus of proof rests upon the defence, the onus is discharged if the jury are satisfied on the balance of probabilities that the accused’s insanity has been made out.” Id., at 235, 3 All E. R., at 429.

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. & R 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), and King v. Pritchard, 7 Car. & R 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). 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). Some 15 years later, the Tennessee Supreme Court described the competency determination as “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). These early authorities are bereft of language susceptible of supporting a clear and convincing evidence standard.

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. None of the remaining 46 jurisdictions imposes such a heavy burden on the defendant. Indeed, a number of States place no burden on the defendant at all, but rather require the prosecutor to prove the defendant’s competence to stand trial once a question about competency has been credibly raised. The situation is no different in federal court. Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence. 18 U. S. C. §4241.

The near-uniform application of a standard that is more protective of the defendant’s rights than Oklahoma’s clear and convincing evidence rule supports our conclusion that the heightened standard offends a principle of justice that is deeply “rooted in the traditions and conscience of our people.” Medina v. California, 505 U. S., at 445 (internal quotation marks omitted). We turn next to a consideration of whether the rule exhibits “ ‘fundamental fairness’ in operation.” Id., at 448 (quoting Dowling v. United States, 493 U. S. 342, 352 (1990)).

IV

Contemporary and historical procedures are fully consistent with our evaluation of the risks inherent in Oklahoma’s practice of requiring the defendant to prove incompetence by clear and convincing evidence. In Addington v. Texas, 441 U. S. 418, 423 (1979), we explained that:

“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring).”

The “more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.” Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 283 (1990). For that reason, we have held that due process places a heightened burden of proof on the State in civil proceedings in which the “individual interests at stake . . . are both ‘particularly important’ and ‘more substantial than mere loss of money.’” Santosky v. Kramer, 455 U. S. 745, 756 (1982) (termination of parental rights) (quoting Addington, 441 U. S., at 424).

Far from “jealously guarding],” Jacob v. New York City, 315 U. S. 752, 752-753 (1942), an incompetent criminal defendant’s fundamental right not to stand trial, Oklahoma’s practice of requiring the defendant to prove incompetence by clear and convincing evidence imposes a significant risk of an erroneous determination that the defendant is competent. In Medina we found no comparable risk because the presumption would affect only the narrow class of cases in which the evidence on either side was equally balanced. “Once a State provides a defendant access to procedures for making a competency evaluation,” we stated, there is “no basis for holding that due process further requires the State to assume the burden of vindicating the defendant’s constitutional right by persuading the trier of fact that the defendant is competent to stand trial.” 505 U. S., at 449. Unlike the presumption at issue in Medina, however, Oklahoma’s clear and convincing evidence standard affects a class of cases in which the defendant has already demonstrated that he is more likely than not incompetent.

For the defendant, the consequences of an erroneous determination of competence are dire. Because he lacks the ability to communicate effectively with counsel, he may be unable to exercise other “rights deemed essential to a fair trial.” Riggins v. Nevada, 504 U. S., at 139 (Kennedy, J., concurring in judgment). After making the “profound” choice whether to plead guilty, Godinez v. Moran, 509 U. S. 389, 398 (1993), the defendant who proceeds to trial

“will ordinarily have to decide whether to waive his ‘privilege against compulsory self-incrimination,’ Boykin v. Alabama, 395 U. S. 238, 243 (1969), by taking the witness stand; if the option is available, he may have to decide whether to waive his ‘right to trial by jury,’ ibid.; and, in consultation with counsel, he may have to decide whether to waive his ‘right to confront [his] accusers,’ ibid., by declining to cross-examine witnesses for the prosecution.” Ibid.

With the assistance of counsel, the defendant also is called upon to make myriad smaller decisions concerning the course of his defense. The importance of these rights and decisions demonstrates that an erroneous determination of competence threatens a “fundamental component of our criminal justice system” — the basic fairness of the trial itself.

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).

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. 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 1 Hale, Pleas of the Crown, at *35), and that “[i]t would be a reproach to justice if a guilty man . . . postponed his trial upon a feigned condition of mind, as to his inability to aid in his defense,” United States v. Chisolm, 149 F., at 288. Although they recognized this risk, the early authorities did not resort to a heightened burden of proof in competency proceedings. See Part III, supra.

More fundamentally, while the difficulty of ascertaining where the truth lies may make it appropriate to place the burden of proof on the proponent of an issue, it does not justify the additional onus of an especially high standard of proof. As the Chisolm Court continued,

“[I]t would be likewise a reproach to justice and our institutions, if a human being . . . were compelled to go to trial at a time when he is not sufficiently in possession of his mental faculties to enable him to make a rational and proper defense. The latter would be a more grievous error than the former; since in the one case an individual would go unwhipped of justice, while in the other the great safeguards which the law adopts in the punishment of crime and the upholding of justice would be rudely invaded by the tribunal whose sacred duty it is to uphold the law in all its integrity.” 149 F., at 288.

A heightened standard does not decrease the risk of error, but simply reallocates that risk between the parties. See Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 283. In cases in which competence is at issue, we perceive no sound basis for allocating to the criminal defendant the large share of the risk which accompanies a clear and convincing evidence standard. We assume that questions of competence will arise in a range of cases including not only those in which one side will prevail with relative ease, but also those in which it is more likely than not that the defendant is incompetent but the evidence is insufficiently strong to satisfy a clear and convincing standard. While important •state interests are unquestionably at stake, in these latter cases the defendant’s fundamental right to be tried only while competent outweighs the State’s interest in the efficient operation of its criminal justice system.

V

Oklahoma makes two additional arguments in support of its procedural rule that warrant discussion. First, Oklahoma correctly reminds us that it is normally within the power of the State to establish the procedures through which its laws are given effect, including those related to the burden of producing evidence and the burden of persuasion. See Patterson v. New York, 432 U. S., at 201-202. In Patterson we upheld New York’s requirement that in a prosecution for second-degree murder the defendant must bear the burden of proving the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter. Id., at 207-208. After observing that the rule was consistent with common-law practice, id., at 202, we held that “[t]he Due Process Clause ... does not put New York to the choice of abandoning [statutory] defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment,” id., at 207-208.

Although we found no violation in Patterson, we noted that the State’s power to regulate procedural burdens was subject to proscription under the Due Process Clause if it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” id., at 201-202 (internal quotation marks omitted). This case involves such a rule. Unlike Patterson, which concerned procedures for proving a statutory defense, we consider here whether a State’s procedures for guaranteeing a fundamental constitutional right are sufficiently protective of that right. The deep roots and fundamental character of the defendant’s right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection.

Finally, Oklahoma suggests that our decision in Addington v. Texas, 441 U. S. 418 (1979), in which we held that due process requires a clear and convincing standard of proof in an involuntary civil commitment proceeding, supports imposition of such a rule in competency proceedings. The argument is unpersuasive because commitment and competency proceedings address entirely different substantive issues. Although we have not had the opportunity to consider the outer limits of a State’s authority to civilly commit an unwilling individual, O’Connor v. Donaldson, 422 U. S. 563, 573-574 (1975), our decision in Donaldson makes clear that due process requires at a minimum a showing that the person is mentally ill and either poses a danger to himself or others or is incapable of “surviving safely in freedom,” id., at 573-576. The test for competence to stand trial, by contrast, is whether the defendant has the present ability to understand the charges against him and communicate effectively with defense counsel. Dusky v. United States, 362 U. S., at 402. Even if we were to uphold Oklahoma’s imposition of the clear and convincing evidence rule in competency proceedings, the comparable standards in the two proceedings would not guarantee parallel results.

More importantly, our decision today is in complete accord with the basis for our ruling in Addington. Both cases concern the proper protection of fundamental rights in circumstances in which the State proposes to take drastic action against an individual. The requirement that the grounds for civil commitment be shown by clear and convincing evidence .protects the individual’s fundamental interest in liberty. The prohibition against requiring the criminal defendant to demonstrate incompetence by clear and convincing evidence safeguards the fundamental right not to stand trial while incompetent. Because Oklahoma’s procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process.

VI

For the foregoing reasons, the judgment is reversed, and the case is remanded to the Oklahoma Court of Criminal Appeals for further proceedings not inconsistent with this opinion.

It is so ordered.

       During the hearing petitioner, who had refused to change out of prison overalls for the trial because the proffered clothes were “burning” him, Tr. of Pretrial Motions and Competency Hearings 3-4 (May 4-5, 1992), talked to himself and to an imaginary “spirit” who petitioner claimed gave him counsel. On the witness stand petitioner expressed fear that the lead defense attorney wanted to kill him.
      In his argument at the close of the proceeding, defense counsel reminded the court of an incident that occurred during petitioner’s testimony:
      “Every time I would get close to his space where he is seated in this little witness enclave ... he would stand up and he would get away from me as far as he could and so I would back off and I’d give him a little space. ... So, I’ve approached him from every side. . . . except I haven’t approached him from the front. So yesterday, I approach him from the front. And that’s the last thing I did. I regret doing that.
      “He stood up and he got as far back against the rail behind the witness chair as he could get. I edged closer. He got as far back and he got up on that rail. So I’ve got him up on the rail and I’m thinking, hey, what can I lose? Let me just see what he does now because he can go no further back, but as the Court knows, there’s a space of about two-and-a-half feet behind this rail and a marble wall.
      “Without looking for his safety at all and looking what’s behind him, when I moved the least bit and I didn’t move very far towards him, he fell to get away from me. He fell. He hit his head. The thud on that marble when he jackknifed backward off of that railing into that marble could be heard at the back of that courtroom....
      “We got him back up here in the witness enclave, he’s just busted his head, tears are streaming down his eyes and he does not respond in any normal fashion.” App. 37-38.

       Petitioner did not communicate with or sit near defense counsel during the trial. Through much of the proceedings he remained in prison overalls, crouching in the fetal position and talking to himself.

       Section 1175.4(B) provides, in relevant part: “The court, at the hearing on the application [for determination of competency], shall determine, by clear and convincing evidence, if the person is incompetent. The person shall be presumed to be competent for the purposes of the allocation of the burden of proof and burden of going forward with the evidence.”
      Section 1175.4 was amended in 1991, during the pretrial period of petitioner’s prosecution. The amendment did not alter the text of subsection B.

       Indeed, the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination. See Pate v. Robinson, 383 U. S. 375, 384 (1966).

       The Oklahoma statute defines competence as “the present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him and to effectively and rationally assist in his defense.” Okla. Stat., Tit. 22, §1175.1(1) (Supp. 1996).

       In her concurring opinion, Justice O’Connor expressed the view that placing the burden on the defendant in this limited group of eases was permissible because it provided the defendant with an incentive to cooperate with the information-gathering process necessary to a reliable competency determination. Medina, 505 U. S., at 455.

      Tr. of Oral Arg. 46-48.

       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).

       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.

       Indeed, although in Medina we concluded that it is permissible for a State to require the defendant to shoulder the burden of demonstrating his incompetence, we noted that some 19th-century English authorities placed the burden on the prosecutor once competence was put in issue. Medina v. California, 505 U. S., at 447. See Queen v. Davies, 3 Car. & K. 328, 329, 175 Eng. Rep. 575, 575 (1853) (judge ruled that “[the prosecutor] should begin, and call his witnesses, to show that the prisoner is sane, and capable of pleading”); Ley’s Case, 1 Lewin 239, 240, 168 Eng. Rep. 1026 (1828) (“ ‘If there be a doubt as to the prisoner’s sanity ... you cannot say that he is in a fit state to be put upon his trial’ ”). See also Halsbury, 10 Laws of England 403 (3d ed. 1955) (“Where a jury is so empanelled [to determine competency], the onus is on the prosecution to prove the sanity of the defendant”). But see Queen v. Podola, 43 Crim. App. 220, 236, 3 All E. R. 418, 430 (1959) (explicitly rejecting the suggestion that the prosecutor must prove the defendant’s competence to stand trial). Given the disagreement among English courts concerning which party bore the burden of proof, it is unlikely that in cases in which the burden was placed on the defendant that burden was as weighty as clear and convincing evidence.

       The Podola court opined that the tests laid down in Pritchard “have been followed so often that they may be said to be firmly embodied in our law.” 43 Crim. App., at 238, 3 All E. R., at 431.

       In Commonwealth v. Braley, 1 Mass. 102, 103 (1804), a ease 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.

       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. R, at 443; O’Grady, 5 Ohio Dec., at 655.

       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 appear-, anee 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 eases 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 eases, as abundantly appears from the authorities”).

       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.

       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 by Oklahoma and Connecticut may have been a response to this Court’s decision in Addington v. Texas, 441 U. S. 418 (1979). We discuss Addington infra, at 368-369.

       See Lackey v. State, 615 So. 2d 145, 151-152 (Ala. Crim. App. 1992); McCarlo v. State, 677 P. 2d 1268, 1272 (Alaska App. 1984); Cal. Penal Code Ann. § 1369(f) (West 1982); Colo. Rev. Stat. §16-8-111(2) (1986); Diaz v. State, 508 A. 2d 861, 863 (Del. 1986); Flowers v. State, 353 So. 2d 1259, 1270 (Fla. App. 1978); Johnson v. State, 209 Ga. App. 514, 516, 433 S. E. 2d 717, 719 (1993); Haw. Rev. Stat. §§704-404 and 704-411 (1993); Ill. Comp. Stat., eh. 725, §5/104-11(c) (1992); Montano v. State, 649 N. E. 2d 1053, 1057-1058 (Ind. App. 1995); State v. Rhode, 503 N. W. 2d 27, 35 (Iowa App. 1993); State v. Seminary, 165 La. 67, 72, 115 So. 370, 372 (1927); Jolley v. State, 282 Md. 353, 365, 384 A. 2d 91, 98 (1978); Commonwealth v. Prater, 420 Mass. 569, 573-574, 651 N. E. 2d 833, 837 (1995); Minn. Rule Crim. Proe. 20.01 (1995); Griffin v. State, 504 So. 2d 186, 191 (Miss. 1987); State v. Zorzy, 136 N. H. 710, 714-715, 622 A. 2d 1217, 1219 (1993); State v. Lambert, 275 N. J. Super. 125, 129, 645 A. 2d 1189, 1191 (1994); State v. Chapman, 104 N. M. 324, 327, 721 P. 2d 392, 395 (1986); People v. Santos, 43 App. Div. 2d 73, 75, 349 N. Y. S. 2d 439, 442 (1973); State v. Heger, 326 N. W. 2d 855, 858 (N. D. 1982); Ohio Rev. Code Ann. §2945.37 (1993); State v. Nance, 466 S. E. 2d 349, 351 (S. C. 1996); S. D. Codified Laws § 23A-10A-6.1 (1988); Jordan v. State, 124 Tenn. 81, 89, 135 S. W. 327, 329 (1911); Blacklock v. State, 820 S. W. 2d 882, 886 (Tex. App. 1991); Utah Code Ann. §77-15-5(10) (1995); Va. Code Ann. § 19.2-169.1(E) (1995); Wash. Rev. Code § 10.77.090 (1994); W. Va. Code §27-6A-2(b) (1992); Wis. Stat. § 971.14(4)(b) (1985 and Supp. 1995); Loomer v. State, 768 P. 2d 1042, 1045 (Wyo. 1989).
      The burden imposed in the remaining States is unclear. Nothing in the competency statutes or case law of these States suggests, however, that the defendant bears the burden of proving incompetence by clear and convincing evidence. See Ariz. Rule Crim. Proc. 11.5 (1987 and Supp. 1995); Mitchell v. State, 323 Ark. 116, 120, 913 S. W. 2d 264, 266 (1996); Idaho Code §18-212 (1987); Kan. Stat. Ann. §22-3302 (1995); Ky. Rev. Stat. Ann. §504.100 (Michie 1990); Me. Rev. Stat. Ann., Tit. 15, §101-B (Supp. 1995); Mich. Comp. Laws §330.2020 (1992); State v. Clark, 546 S. W. 2d 455, 468 (Mo. App. 1976); Mont. Code Ann. §46-14-221 (1992 and Supp. 1995); Neb. Rev. Stat. §29-1823 (1989); Nev. Rev. Stat. §178.415 (1992); N. C. Gen. Stat. § 15A-1002 (1988); Ore. Rev. Stat. §§161.360-161.370 (Supp. 1994); and Vt. Stat. Ann., Tit. 13, § 4817 (1974).

       See, e.g., Haw. Rev. Stat. §§704-404 and 704-411 (1993); Ill. Comp. Stat., ch. 725, §5/104-11(c) (1992); S. D. Codified Laws §23A-10A-6.1 (1988); Wis. Stat. § 971.14(4)(b) (Supp. 1994 and Supp. II 1995).

       See also Addington v. Texas (involuntary civil commitment); Woodby v. INS, 385 U. S. 276, 285-286 (1966) (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U. S. 118, 125 (1943) (denaturalization).
      Our opinions in Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990), and Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 (1990), are not to the contrary. In Cruzan we held that the Due Process Clause does not prohibit Missouri from requiring a third party who seeks to terminate life-sustaining treatment to demonstrate by clear and convincing evidence that the incompetent person receiving such treatment would wish that step to be taken. 497 U. S., at 280. We reasoned that the heightened standard of proof was permissible because the decision-maker was a surrogate for the incompetent individual, id., at 280-281, and because the consequences of an erroneous decision were irreversible, id., at 283. In Akron Center for Reproductive Health we upheld an Ohio statute that required an unmarried, unemancipated minor woman who sought to obtain an abortion without notifying a parent to prove by clear and convincing evidence that judicial bypass of the notification requirement was appropriate in her case. We approved the heightened standard of proof in that case largely because the proceeding at issue was ex parte. 497 U. S., at 515-516.

        United, States v. Cronic, 466 U. S. 648, 653 (1984).

       Under Jackson, if the defendant regains competence or is found to be malingering, the State may proceed to trial.

       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).

       See also People v. Lake, 2 N. Y. 215, 220, 222 (1855); State v. Harris, 78 Am. Dec. 272, 274 (N. C. 1860); State v. Tyler, 7 Ohio N. P., at 444.

       For example, a mentally retarded defendant accused of a nonviolent crime may be found incompetent to stand trial but not necessarily be subject to involuntary civil commitment.

       We note that Addington did not purport to resolve any question concerning the rights of the defendant in a criminal proceeding. To the contrary, in his opinion for the Court, Chief Justice Burger contrasted the appropriate standard in civil commitment proceedings with the rules applicable in criminal cases in which “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” 441 U. S., at 423.


source: Caselaw Access Project

author: Justice Souter

license: Public Domain

text:
    MARKMAN et al. v. WESTVIEW INSTRUMENTS, INC., et al.
    No. 95-26.
    Argued January 8, 1996
    Decided April 23, 1996

      Souter, J., delivered the opinion for a unanimous Court.

      William B. Mallin argued the cause for petitioners. With him on the briefs were Timothy P. Ryan, Timothy S. Coon, Lewis F. Gould, Jr., and Stephan P. Gribok.

      Frank H. Griffin III argued the cause for respondents. With him on the brief were Peter A. Vogt and Polly M. Shaffer.

        Jeffrey Robert White, Pamela A. Liapakis, and Joseph W. Cotchett filed a brief for the Association of Trial Lawyers of America as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Intellectual Property Law Association by Don W. Martens, Charles L. Gholz, R. Carl Moy, Roger W. Parkhurst, Joseph R. Re, Paul A. Stewart, and Harold C. Wegner; for the Federal Circuit Bar Association by David H. T. Kane and Rudolph P. Hofmann; for the Dallas-Fort Worth Intellectual Property Law Association; for Honeywell, Inc., by Richard G. Taranto and David L. Shapiro; for Intellectual Property Owners by Rex E. Lee, Carter G. Phillips, Mark E. Haddad, and Constantine L. Trela; for Matsu-shita Electric Corp. of America et al. by Morton Amster and Joel E. Lutz-ker; for United States Surgical Corp. by John G. Kester, J. Alan Galbraith, William E. McDaniels, Arthur R. Miller, Thomas R. Bremer, and John C. Andres; for John T. Roberts, pro se; and for Douglas W. Wyatt by Mr. Wyatt, pro se, Paul M. Janiche, and John R. Kirk, Jr.

      Briefs of amici curiae were filed for Airtoueh Communications, Inc., by Allan N. Littman and Robert P. Taylor; for the American Automobile Manufacturers Association by Charles W. Bradley, Stanley L. Amberg, Phillip D. Brady, and Andrew D. Koblenz; for the American Board of Trial Advocates by Robert G. Vial; for Exxon Corp. et al. by Donald B. Craven, Gerald Goldman, James P. Tuite, and James R. Lovelace; and for Litton Systems, Inc., by Laurence H. Tribe, Jonathan S. Massey, and Kenneth J. Chesebro.

   Justice Souter

delivered the opinion of the Court.

The question here is whether the interpretation of a so-called patent claim, the portion of the patent document that defines the scope of the patentee’s rights, is a matter of law reserved entirely for the court, or subject to a Seventh Amendment guarantee that a jury will determine the meaning of any disputed term of art about which expert testimony is offered. We hold that the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.

I

The Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, §8, cl. 8. Congress first exercised this authority in 1790, when it provided for the issuance of “letters patent,” Act of Apr. 10, 1790, ch. 7, § 1,1 Stat. 109, which, like their modern counterparts, granted inventors “the right to exclude others from making, using, offering for sale, selling, or importing the patented invention,” in exchange for full disclosure of an invention, H. Schwartz, Patent Law and Practice 1, 33 (2d ed. 1995). It has long been understood that a patent must describe the exact scope of an invention and its manufacture to “secure to [the patentee] all to which he is entitled, [and] to apprise the public of what is still open to them.” McClain v. Ortmayer, 141 U. S. 419, 424 (1891). Under the modern American system, these objectives are served by two distinct elements of a patent document. First, it contains a specification describing the invention “in such full, clear, concise, and exact terms as to enable any person skilled in the art ... to make and use the same.” 35 U. S. C. § 112; see also 3 E. Lipscomb, Walker on Patents § 10:1, pp. 183-184 (3d ed. 1985) (Lipscomb) (listing the requirements for a specification). Second, a patent includes one or more “claims,” which “particularly poin[t] out and distinctly clai[m] the subject matter which the applicant regards as his invention.” 35 U. S. C. § 112. “A claim covers and secures a process, a machine, a manufacture, a composition of matter, or a design, but never the function or result of either, nor the scientific explanation of their operation.” 6 Lipscomb §21:17, at 315-316. The claim “define[s] the scope of a patent grant,” 3 id., § 11:1, at 280, and functions to forbid not only exact copies of an invention, but products that go to “the heart of an invention but avoids the literal language of the claim by making a noncritical change,” Schwartz, supra, at 82. In this opinion, the word “claim” is used only in this sense peculiar to patent law.

Characteristically, patent lawsuits charge what is known as infringement, Schwartz, supra, at 75, and rest on allegations that the defendant “without authority ma[de], use[d] or [sold the] patented invention, within the United States during the term of the patent therefor_” 35 U. S. C. § 271(a). Victory in an infringement suit requires a finding that the patent claim “covers the alleged infringer’s product or process,” which in turn necessitates a determination of “what the words in the claim mean.” Schwartz, supra, at 80; see also 3 Lipscomb § 11:2, at 288-290.

Petitioner in this infringement suit, Markman, owns United States Reissue Patent No. 33,054 for his “Inventory Control and Reporting System for Drycleaning Stores.” The patent describes a system that can monitor and report the status, location, and movement of clothing in a dry-cleaning establishment. The Markman system consists of a keyboard and data processor to generate written records for each transaction, including a bar code readable by optical detectors operated by employees, who log the progress of clothing through the dry-cleaning process. Respondent Westview's product also includes a keyboard and processor, and it lists charges for the dry-cleaning services on bar-coded tickets that can be read by portable optical detectors.

Markman brought an infringement suit against Westview and Althon Enterprises, an operator of dry-cleaning establishments using Westview’s products (collectively, West-view). Westview responded that Markman’s patent is not infringed by its system because the latter functions merely to record an inventory of receivables by tracking invoices and transaction totals, rather than to record and track an inventory of articles of clothing. Part of the dispute hinged upon the meaning of the word “inventory,” a term found in Markman’s independent claim 1, which states that Mark-man’s product can “maintain an inventory total” and “detect and localize spurious additions to inventory.” The case was tried before a jury, which heard, among others, a witness produced by Markman who testified about the meaning of the claim language.

After the jury compared the patent to Westview’s device, it found an infringement of Markman’s independent claim 1 and dependent claim 10. The District Court nevertheless granted Westview’s deferred motion for judgment as a matter of law, one of its reasons being that the term “inventory” in Markman’s patent encompasses “both cash inventory and the actual physical inventory of articles of clothing.” 772 F. Supp. 1535, 1537-1538 (ED Pa. 1991). Under the trial court’s construction of the patent, the production, sale, or use of a tracking system for dry cleaners would' not infringe Markman’s patent unless the product was capable of tracking articles of clothing throughout the cleaning process and generating reports about their status and location. Since West-view’s system cannot do these things, the District Court directed a verdict on the ground that Westview’s device does not have the “means to maintain an inventory total” and thus cannot “ ‘detect and localize spurious additions to inventory as well, as spurious deletions therefrom,’” as required by claim 1. Id., at 1537.

Markman appealed, arguing it was error for the District Court to substitute its construction of the disputed claim term ‘inventory’ for the construction the jury had presumably given it. The United States Court of Appeals for the Federal Circuit affirmed, holding the interpretation of claim terms to be the exclusive province of the court and the Seventh Amendment to be consistent with that conclusion. 52 F. 3d 967 (1995). Markman sought our review on each point, and we granted certiorari. 515 U. S. 1192 (1995). We now affirm.

II

The Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . .” U. S. Const., Arndt. 7. Since Justice Story’s day, United States v. Wonson, 28 F. Cas. 745, 750 (No. 16,750) (CC Mass. 1812), we have understood that “[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted.” Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657 (1985). In keeping with our longstanding adherence to this “historical test,” Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 640-643 (1973), we ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was, see, e. g., Tull v. United States, 481 U. S. 412, 417 (1987). If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791. See infra, at 377-378.

A

As to the first issue, going to the character of the cause of action, “[t]he form of our analysis is familiar. ‘First we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity.’” Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 42 (1989) (citation omitted). Equally familiar is the descent of today’s patent infringement action from the infringement actions tried at law in the 18th century, and there is no dispute that infringement cases today must be tried to a jury, as their predecessors were more than two centuries ago. See, e.g., Bramah v. Hardcastle, 1 Carp. P. C. 168 (K. B. 1789).

B

This conclusion raises the second question, whether a particular issue occurring within a jury trial (here the construction of a patent claim) is itself necessarily a jury issue, the guarantee being essential to preserve the right to a jury’s resolution of the ultimate dispute. In some instances the answer to this second question may be easy because of clear historical evidence that the very subsidiary question was so regarded under the English practice of leaving the issue for a jury. But when, as here, the old practice provides no clear answer, see infra, at 378-380, we are forced to make a judgment about the scope of the Seventh Amendment guarantee without the benefit of any foolproof test.

The Court has repeatedly said that the answer to the second question “must depend on whether the jury must shoulder this responsibility as necessary to preserve the ‘substance of the common-law right of trial by jury.’ Tull v. United States, supra, at 426 (emphasis added) (quoting Colgrove v. Battin, 413 U. S. 149, 157 (1973)); see also Baltimore & Carolina Line, supra, at 657. ““‘Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.’”” Tull v. United States, supra, at 426 (citations omitted); see also Galloway v. United States, 319 U. S. 372, 392 (1943).

The “substance of the common-law right” is, however, a pretty blunt instrument for drawing distinctions. We have tried to sharpen it, to be sure, by reference to the distinction between substance and procedure. See Baltimore & Carolina Line, supra, at 657; see also Galloway v. United States, supra, at 390-391; Ex parte Peterson, 253 U. S. 300, 309 (1920); Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593, 596 (1897); but see Sun Oil Co. v. Wortman, 486 U. S. 717, 727 (1988). We have also spoken of the line as one between issues of fact and law. See Baltimore & Carolina Line, supra, at 657; see also Ex parte Peterson, supra, at 310; Walker v. New Mexico & Southern Pacific R. Co., supra, at 597; but see Pullman-Standard v. Swint, 456 U. S. 273, 288 (1982).

But the sounder course, when available, is to classify a mongrel practice (like construing a term of art following receipt of evidence) by using the historical method, much as we do in characterizing the suits and actions within which they arise. Where there is no exact antecedent, the best hope lies in comparing the modern practice to earlier ones whose allocation to court or jury we do know, cf. Baltimore & Carolina Line, supra, at 659, 660; Dimick v. Schiedt, 293 U. S. 474, 477, 482 (1935), seeking the best analogy we can draw between an old and the new, see Tull v. United States, supra, at 420-421 (we must search the English common law for “appropriate analogies” rather than a “precisely analogous common-law cause of action”).

C

“Prior to 1790 nothing in the nature of a claim had appeared either in British patent practice or in that of the American states,” Lutz, Evolution of the Claims of U. S. Patents, 20 J. Pat. Off Soc. 134 (1938), and we have accordingly found no direct antecedent of modern claim construction in the historical sources. Claim practice did not achieve statutory recognition until the passage of the Act of July 4, 1836, ch. 367, § 6, 5 Stat. 119, and inclusion of a claim did not become a statutory requirement until 1870, Act of July 8,1870, eh. 230, § 26,16 Stat. 201; see 1 A. Deller, Patent Claims § 4, p. 9 (2d ed. 1971). Although, as one historian has observed, as early as 1850 “judges were ... beginning to express more frequently the idea that in seeking to ascertain the invention ‘claimed’ in a patent the inquiry should be limited to interpreting the summary, or ‘claim,’ ” Lutz, supra, at 145, “[t]he idea that the claim is just as important if not more important than the description and drawings did not develop until the Act of 1870 or thereabouts.” Deller, supra, §4, at 9.

At the time relevant for Seventh Amendment analogies, in contrast, it was the specification, itself a relatively new development, H. Dutton, The Patent System and Inventive Activity During the Industrial Revolution, 1750-1852, pp. 75-76 (1984), that represented the key to the patent. Thus, patent litigation in that early period was typified by so-called novelty actions, testing whether “any essential part of [the patent had been] disclosed to the public before,” Huddart v. Grimshaw, Dav. Pat. Cas. 265, 298 (K. B. 1803), and “enablement” cases, in which juries were asked to determine whether the specification described the invention well enough to allow members of the appropriate trade to reproduce it, see, e. g., Arkwright v. Nightingale, Dav. Pat. Cas. 37, 60 (C. P. 1785).

The closest 18th-century analogue of modern claim construction seems, then, to have been the construction of specifications, and as to that function the mere smattering of patent cases that we have from this period shows no established jury practice sufficient to support an argument by analogy that today’s construction of a claim should be a guaranteed jury issue. New of the case reports even touch upon the proper interpretation of disputed terms in the specifications at issue, see, e. g., Bramah v. Hardcastle, 1 Carp. P. C. 168 (K. B. 1789); King v. Else, 1 Carp. P. C. 103, Dav. Pat. Cas. 144 (K. B. 1785); Dollond’s Case, 1 Carp. P. C. 28 (C. P. 1758); Administrators of Calthorp v. Waymans, 3 Keb. 710, 84 Eng. Rep. 966 (K. B. 1676), and none demonstrates that the definition of such a term was determined by the jury. This absence of an established practice should not surprise us, given the primitive state of jury patent practice at the end of the 18th century, when juries were still new to the field. Although by 1791 more than a century had passed since the enactment of the Statute of Monopolies, which provided that the validity of any monopoly should be determined in accordance with the common law, patent litigation had remained within the jurisdiction of the Privy Council until 1752 and hence without the option of a jury trial. E. Walterscheid, Early Evolution of the United States Patent Law: Antecedents (Part 3), 77 J. Pat. & Tm. Off. Soc. 771, 771-776 (1995). Indeed, the state of patent law in the common-law courts before 1800 led one historian to observe that “the reported cases are destitute of any decision of importance .... At the end of the eighteenth century, therefore, the Common Law Judges were left to pick up the threads of the principles of law without the aid of recent and reliable precedents.” Hulme, On the Consideration of the Patent Grant, Past and Present, 13 L. Q. Rev. 313,318 (1897). Earlier writers expressed similar discouragement at patent law’s amorphous character, and, as late as the 1830’s, English commentators were irked by enduring confusion in the field. See Dutton, supra, at 69-70.

Markman seeks to supply what the early case reports lack in so many words by relying on decisions like Turner v. Winter, 1 T. R. 602, 99 Eng. Rep. 1274 (K. B. 1787), and Arkwright v. Nightingale, Dav. Pat. Cas. 37 (C. P. 1785), to argue that the 18th-century juries must have acted as definers of patent terms just to reach the verdicts we know they rendered in patent cases turning on enablement or novelty. But the conclusion simply does not follow. There is no more reason to infer that juries supplied plenary interpretation of written instruments in patent litigation than in other cases implicating the meaning of documentary terms, and we do know that in other kinds of cases during this period judges, not juries, ordinarily construed written documents. The probability that the judges were doing the same thing in the patent litigation of the time is confirmed by the fact that as soon as the English reports did begin to describe the construction of patent documents, they show the judges construing the terms of the specifications. See Bovill v. Moore, Dav. Pat. Cas. 361, 399, 404 (C. P. 1816) (judge submits question of novelty to the jury only after explaining some of the language and “stat[ing] in what terms the specification runs”); cf. Russell v. Cowley & Dixon, Webs. Pat. Cas. 457, 467-470 (Exch. 1834) (construing the terms of the specification in reviewing a verdict); Haworth v. Hardcastle, Webs. Pat. Cas. 480, 484-485 (1834) (same). This evidence is in fact buttressed by cases from this Court; when they first reveal actual practice, the practice revealed is of the judge construing the patent. See, e. g., Winans v. New York & Erie R. Co., 21 How. 88, 100 (1859); Winans v. Denmead, 15 How. 330, 338 (1854); Hogg v. Emerson, 6 How. 437, 484 (1848); cf. Parker v. Hulme, 18 F. Cas. 1138 (No. 10,740) (CC ED Pa. 1849). These indications of our patent practice are the more impressive for being all of a piece with what we know about the analogous contemporary practice of interpreting terms within a land patent, where it fell to the judge, not the jury, to construe the words.

D

Losing, then, on the contention that juries generally had interpretive responsibilities during the 18th century, Mark-man seeks a different anchor for analogy in the more modest contention that even if judges were charged with construing most terms in the patent, the art of defining terms of art employed in a specification fell within the province of the jury. Again, however, Markman has no authority from the period in question, but relies instead on the later case of Neilson v. Harford, Webs. Pat. Cas. 828 (Exch. 1841). There, an exchange between the judge and the lawyers indicated that although the construction of a patent was ordinarily for the court, id., at 349 (Alderson, B.), judges should “leav[e] the question of words of art to the jury,” id., at 350 (Alderson, B.); see also id., at 370 (judgment of the court); Hill v. Evans, 4 De. G. F. & J. 288, 293-294, 45 Eng. Rep. 1195,1197 (Ch. 1862). Without, however, in any way disparaging the weight to which Baron Alderson’s view is entitled, the most we can say is that an English report more than 70 years after the time that concerns us indicates an exception to what probably had been occurring earlier. In place of Markman’s inference that this exceptional practice existed in 1791 there is at best only a possibility that it did, and for anything more than a possibility we have found no scholarly authority.

Ill

Since evidence of common-law practice at the time of the framing does not entail application of the Seventh Amendment’s jury guarantee to the construction of the claim document, we must look elsewhere to characterize this determination of meaning in order to allocate it as between court or jury. We accordingly consult existing precedent and consider both the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation.

A

The two elements of a simple patent case, construing the patent and determining whether infringement occurred, were characterized by the former patent practitioner, Justice Curtis. “The first is a question of law, to be determined by the court, construing the letters-patent, and the description of the invention and specification of claim annexed to them. The second is a question of fact, to be submitted to a jury.” Winans v. Denmead, supra, at 338; see Winans v. New York & Erie R. Co., supra, at 100; Hogg v. Emerson, supra, at 484; cf. Parker v. Hulme, supra, at 1140.

In arguing for a different allocation of responsibility for the first question, Markman relies primarily on two cases, Bischoff v. Wethered, 9 Wall. 812 (1870), and Tucker v. Spalding, 13 Wall. 453 (1872). These are said to show that evidence of the meaning of patent terms was offered to 19th-century juries, and thus to imply that the meaning of a documentary term was a jury issue whenever it was subject to evidentiary proof. That is not what Markman’s cases show, however.

In order to resolve the Bischoff suit implicating the construction of rival patents, we considered “whether the court below was bound to compare the two specifications, and to instruct the jury, as a matter of law, whether the inventions therein described were, or were not, identical.” 9 Wall., at 813 (statement of the case). We said it was not bound to do that, on the ground that investing the court with so disposi-tive a role would improperly eliminate the jury’s function in answering the ultimate question of infringement. On that ultimate issue, expert testimony had been admitted on “the nature of the various mechanisms or manufactures described in the different patents produced, and as to the identity or diversity between them.” Id., at 814. Although the jury’s consideration of that expert testimony in resolving the question of infringement was said to impinge upon the well-established principle “that it is the province of the court, and not the jury, to construe the meaning of documentary evidence,” id., at 815, we decided that it was not so. We said:

“[T]he specifications ... profess to describe mechanisms and complicated machinery, chemical compositions and other manufactured products, which have their existence in pais, outside of the documents themselves; and which are commonly described by terms of the art or mystery to which they respectively belong; and these descriptions and terms of art often require peculiar knowledge and education to understand them aright.... Indeed, the whole subject-matter of a patent is an embodied conception outside of the patent itself.... This outward embodiment of the terms contained in the patent is the thing invented, and is to be properly sought, like the explanation of all latent ambiguities arising from the description of external things, by evidence in pais.” Ibid.

Bischoff does not then, as Markman contends, hold that the use of expert testimony about the meaning of terms of art requires the judge to submit the question of their construction to the jury. It is instead a case in which the Court drew a line between issues of document interpretation and product identification, and held that expert testimony was properly presented to the jury on the latter, ultimate issue, whether the physical objects produced by the patent were identical. The Court did not see the decision as bearing upon the appropriate treatment of disputed terms. As the opinion emphasized, the Court’s “view of the case is not intended to, and does not, trench upon the doctrine that the construction of written instruments is the province of the court alone. It is not the construction of the instrument, but the character of the thing invented, which is sought in questions of identity and diversity of inventions.” Id., at 816 (emphasis added). Tucker, the second case proffered by Markman, is to the same effect. Its reasoning rested expressly on Bischoff, and it just as clearly noted that in addressing the ultimate issue of mixed fact and law, it was for the court to “lay down to the jury the law which should govern them.” Tucker, supra, at 455.

If the line drawn in these two opinions is a fine one, it is one that the Court has drawn repeatedly in explaining the respective roles of the jury and judge in patent cases, and one understood by commentators writing in the aftermath of the cases Markman cites. Walker, for example, read Bischoff as holding that the question of novelty is not decided by a construction of the prior patent, “but depends rather upon the outward embodiment of the terms contained in the [prior patent]; and that such outward embodiment is to be properly sought, like the explanation of latent ambiguities arising from the description of external things, by evidence in pais.” A. Walker, Patent Laws §75, p. 68 (3d ed. 1895). He also emphasized in the same treatise that matters of claim construction, even those aided by expert testimony, are questions for the court:

“Questions of construction are questions of law for the judge, not questions of fact for the jury. As it cannot be expected, however, that judges will always possess the requisite knowledge of the meaning of the terms of art or science used in letters patent, it often becomes necessary that they should avail themselves of the light furnished by experts relevant to the significance of such words and phrases. The judges are not, however, obliged to blindly follow such testimony.” Id., § 189, at 173 (footnotes omitted).

Virtually the same description of the court’s use of evidence in its interpretive role was set out in another contemporary treatise:

“The duty of interpreting letters-patent has been committed to the courts. A patent is a legal instrument, to be construed, like other legal instruments, according to its tenor. . .. Where technical terms are used, or where the qualities of substances or operations mentioned or any similar data necessary to the comprehension of the language of the patent are unknown to the judge, the testimony of witnesses may be received upon these subjects, and any other means of information be employed. But in the actual interpretation of the patent the court proceeds upon its own responsibility, as an arbiter of the law, giving to the patent its true and final character and force.” 2 W. Robinson, Law of Patents §782, pp. 481-483 (1890) (emphasis added; footnotes omitted).

In sum, neither Bischoff nor Tucker indicates that juries resolved the meaning of terms of art in construing a patent, and neither case undercuts Justice Curtis’s authority.

B

Where history and precedent provide no clear answers, functional considerations also play their part in the choice between judge and jury to define terms of art. We said in Miller v. Fenton, 474 U. S. 104, 114 (1985), that when an issue “falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” So it turns out here, for judges, not juries, are the better suited to find the acquired meaning of patent terms.

The construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis. Patent construction in particular “is a special occupation, requiring, like all others, special training and practice. The judge, from his training and discipline, is more likely to give a proper interpretation to such instruments than a jury; and he is, therefore, more likely to be right, in performing such a duty, than a jury can be expected to be.” Parker v. Hulme, 18 F. Cas., at 1140. Such was the understanding nearly a century and a half ago, and there is no reason to weigh the respective strengths of judge and jury differently in relation to the modern claim; quite the contrary, for “the claims of patents have become highly technical in many respects as the result of special doctrines relating to the proper form and scope of claims that have been developed by the courts and the Patent Office.” Woodward, Definiteness and Particularity in Patent Claims, 46 Mich. L. Rev. 755, 765 (1948).

Markman would trump these considerations with his argument that a jury should decide a question of meaning peculiar to a trade or profession simply because the question is a subject of testimony requiring credibility determinations, which are the jury’s forte. It is, of course, true that credibility judgments have to be made about the experts who testify in patent cases, and in theory there could be a case in which a simple credibility judgment would suffice to choose between experts whose testimony was equally consistent with a patent’s internal logic. But our own experience with document construction leaves us doubtful that trial courts will run into many cases like that. In the main, we expect, any credibility determinations will be subsumed within the necessarily sophisticated analysis of the whole document, required by the standard construction rule that a term can be defined only in a way that comports with the instrument as a whole. See Bates v. Coe, 98 U. S. 31, 38 (1878); 6 Lipscomb § 21:40, at 393; 2 Robinson, supra, § 734, at 484; Woodward, supra, at 765; cf. U S. Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals Co., 315 U. S. 668, 678 (1942); cf. 6 Lipscomb § 21:40, at 393. Thus, in these cases a jury’s capabilities to evaluate demeanor, cf. Miller, supra, at 114, 117, to sense the “mainsprings of human conduct,” Commissioner v. Duberstein, 363 U. S. 278, 289 (1960), or to reflect community standards, United States v. McConney, 728 F. 2d 1195, 1204 (CA9 1984) (en banc), are much less significant than a trained ability to evaluate the testimony in relation to the overall structure of the patent. The decisionmaker vested with the task of construing the patent is in the better position to ascertain whether an expert’s proposed definition fully comports with the specification and claims and so will preserve the patent’s internal coherence. We accordingly think there is sufficient reason to treat construction of terms of art like many other responsibilities that we cede to a judge in the normal course of trial, notwithstanding its evidentiary underpinnings.

C

Finally, we see the importance of uniformity in the treatment of a given patent as an independent reason to allocate all issues of construction to the court. As we noted in General Elec. Co. v. Wabash Appliance Corp., 304 U. S. 364, 369 (1938), “[t]he limits of a patent must be known for the protection of the patentee, the encouragement of the inventive genius of others and the assurance that the subject of the patent will be dedicated ultimately to the public.” Otherwise, a “zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims would discourage invention only a little less than unequivocal foreclosure of the field,” United Carbon Co. v. Binney & Smith Co., 317 U. S. 228, 236 (1942), and “[t]he public [would] be deprived of rights supposed to belong to it, without being clearly told what it is that limits these rights.” Merrill v. Yeomans, 94 U. S. 568, 573 (1877). It was just for the sake of such desirable uniformity that Congress created the Court of Appeals for the Federal Circuit as an exclusive appellate court for patent cases, H. R. Rep. No. 97-312, pp. 20-23 (1981), observing that increased uniformity would “strengthen the United States patent system in such a way as to foster technological growth and industrial innovation.” Id., at 20.

Uniformity would, however, be ill served by submitting issues of document construction to juries. Making them jury issues would not, to be sure, necessarily leave eviden-tiary questions of meaning wide open in every new court in which a patent might be litigated, for principles of issue preclusion would ordinarily foster uniformity. Cf. Blonder-Tongue Laboratories, Inc. v. University of III. Foundation, 402 U. S. 313 (1971). But whereas issue preclusion could not be asserted against new and independent infringement defendants even within a given jurisdiction, treating interpretive issues as purely legal will promote (though it will not guarantee) intrajurisdictional certainty through the application of stare decisis on those questions not yet subject to interjurisdictional uniformity under the authority of the single appeals court.

* * *

Accordingly, we hold that the interpretation of the word “inventory” in this case is an issue for the judge, not the jury, and affirm the decision of the Court of Appeals for the Federal Circuit.

It is so ordered.

       Thus, for example, a claim for a ceiling fan with three blades attached to a solid rod connected to a motor would not only cover fans that take precisely this form, but would also cover a similar fan that includes some additional feature, e. g., such a fan with a cord or switch for turning it on and off, and may cover a product deviating from the core design in some noncritical way, e. g., a three-bladed ceiling fan with blades attached to a hollow rod connected to a motor. H. Schwartz, Patent Law and Practice 81-82 (2d ed. 1995).

       Dependent claim 10 specifies that, in the invention of claim 1, the input device is an alpha-numeric keyboard in which single keys may be used to enter the attributes of the items in question.

       Our formulations of the historical test do not deal with the possibility of conflict between actual English common-law practice and American assumptions about what that practice was, or between English and American practices at the relevant time. No such complications arise in this ease.

       Before the turn of the century, “no more than twenty-two [reported] cases came before the superior courts of London.” H. Dutton, The Patent System and Inventive Activity During the Industrial Revolution, 1750-1852, p. 71 (1984).

       Markman relies heavily upon Justice Buller’s notes of Lord Mansfield’s instructions in Liardet v. Johnson (K. B. 1778), in 1 J. Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century 748 (1992). Liardet was an enablement case about the invention of stucco, in which a defendant asserted that the patent was invalid because it did not fully describe the appropriate method for producing the substance. Even setting aside concerns about the accuracy of the summary of the jury instructions provided for this case from outside the established reports, see 1 Oldham, supra, at 752, n. 11, it does not show that juries construed disputed terms in a patent. From its ambiguous references, e. g., 1 Oldham, supra, at 756 (“[Lord Mansfield] left to the jury 1st, on all objections made to exactness, certainty and propriety of the Specification, & whether any workman could make it by [the Specification]”), we cannot infer the existence of an established practice, cf. Galloway v. United States, 319 U. S. 372, 392 (1943) (expressing concern regarding the “uncertainty and the variety of conclusions which follows from an effort at purely historical accuracy”), especially when, as here, the inference is undermined by evidence that judges, rather than jurors, ordinarily construed written documents at the time. See infra, at 381-383.

       See, e. g., Boulton and Watt v. Bull, 2 H. Bl. 463, 491, 126 Eng. Rep. 651, 665 (C. R 1795) (Eyre, C. J.) (“Patent rights are no where that I can find accurately discussed in our books”); Dutton, supra n. 4, at 70-71 (quoting Abraham Weston as saying “it may with truth be said that the [Law] Books are silent on the subject [of patents] and furnish no clue to go by, in agitating the Question What is the Law of Patents?”).

       See, e. g., Devlin, Jury Trial of Complex Cases: English Practice at the Time of the Seventh Amendment, 80 Colum. L. Rev. 43, 75 (1980); Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Calif. L. Rev. 1867, 1932 (1966). For example, one historian observed that it was generally the practice of judges in the late 18th century “to keep the construction of writings out of the jury’s hands and reserve it for themselves,” a “safeguard” designed to prevent a jury from “construing] or refin[ing] it at pleasure.” 9 J. Wigmore, Evidence § 2461, p. 194 (J. Chadbourn rev. ed. 1981) (emphasis in original; internal quotation marks omitted). The absence of any established practice supporting Markman’s view is also shown by the disagreement between Justices Willis and Buller, reported in Macheath v. Haldimand, 1 T. R. 173, 180-182, 99 Eng. Rep. 1036, 1040-1041 (K. B. 1786), as to whether juries could ever construe written documents when their meaning was disputed.

       As we noted in Brown v. Huger, 21 How. 305, 318 (1859):
      “With regard to the second part of this objection, that which claims for the jury the construction of the patent, we remark that the patent itself must be taken as evidence of its meaning; that, like other written instruments, it must be interpreted as a whole . . . and the legal deductions drawn therefrom must be conformable with the scope and purpose of the entire document. This construction and these deductions we hold to be within the exclusive province of the court.”

       In explaining that judges generally construed all terms in a written document at the end of the 18th century, one historian observed that “[i]n-terpretation by local usage for example (today the plainest case of legitimate deviation from the normal standard) was still but making its way.” 9 Wigmore, Evidence § 2461, at 195; see also id,., at 195, and n. 6 (providing examples of this practice). We need not in any event consider here whether our conclusion that the Seventh Amendment does not require terms of art in patent claims to be submitted to the jury supports a similar result in other types of cases.

       Because we conclude that our precedent supports classifying the question as one for the court, we need not decide either the extent to which the Seventh Amendment can be said to have crystallized a law/fact distinction, cf. Ex parte Peterson, 253 U. S. 300, 310 (1920); Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593, 597 (1897), or whether post-1791 precedent classifying an issue as one of fact would trigger the protections of the Seventh Amendment if (unlike this case) there were no more specific reason for decision.

       See 1 A Memoir of Benjamin Robbins Curtis, L. L. D., 84 (B. Curtis ed. 1879); cf. O’Reilly v. Morse, 15 How. 62, 63 (1854) (noting his involvement in a patent case).

       We are also unpersuaded by petitioner’s heavy reliance upon the decision of Justice Story on circuit in Washburn v. Gould, 29 F. Cas. 312 (No. 17,214) (CC Mass. 1844). Although he wrote that “[t]he jury are to judge of the meaning of words of art, and technical phrases,” id., at 325, he did so in describing the decision in Neilson v. Harford, Webs. Pat. Cas. 328 (Exch. 1841), which we discuss, supra, at 383, and, whether or not he agreed with Neilson, he stated, “[b]ut I do not proceed upon this ground.” 29 F. Cas., at 325.

       See, e. g., Coupe v. Royer, 155 U. S. 565, 579-580 (1895); Silsby v. Foote, 14 How. 218, 226 (1853); Hogg v. Emerson, 6 How. 437, 484 (1848); cf. Brown v. Piper, 91 U. S. 37, 41 (1875); Winans v. New York & Erie R. Co., 21 How. 88, 100 (1859); cf. also U. S. Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals Corp., 315 U. S. 668, 678 (1942).