with whom
Justice Brennan joins and Justice Stevens joins as to Part I, dissenting.I dissented from this Court’s holding in Lockhart v. McCree, 476 U. S. 162 (1986), that “death-qualifying” a jury in a capital case before the guilt phase of the trial was constitutionally permissible. Today’s extension of that holding to permit death qualification in a joint trial, where not all of the defendants face capital charges, compels me to dissent again. No interest of the Commonwealth of Kentucky justified the invasion of petitioner’s Sixth Amendment rights when potential jurors were excluded on the basis of their answers to questions about an issue that was totally unrelated to the exclusively noncapital charges on which he was tried. If the Commonwealth chose to proceed with a joint trial, it was nonetheless required to observe petitioner’s constitutional right to an impartial and representative jury.
I also dissent on the second issue in this case: whether admission of the information contained in the mental status report regarding petitioner’s qualifications for involuntary hospitalization and treatment pending trial violated his Fifth and Sixth Amendment rights. This information was irrelevant to the issue on which it was admitted and, more importantly, was obtained for therapeutic purposes that can only be undermined by the. Court’s decision today. Petitioner legitimately expected that he would not, by requesting this limited mental examination, be generating evidence admissible against him at trial on issues unrelated to the charged offenses. His request for the examination was therefore uninformed and constituted no waiver of his Fifth and Sixth Amendment rights.
I
As it did in McCree, supra, at 173, the Court today assumes that the accumulated scholarly studies demonstrate that death qualification produces juries abnormally prone to convict. Ante, at 415, n. 16. This assumption is well founded. *427The evidence is “overwhelming” that death-qualified juries are “substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment are permitted to serve.” 476 U. S., at 184 (Marshall, J., dissenting).
This Court nevertheless held in McCree that the interest of the State of Arkansas in having a single jury decide both guilt or innocence and the appropriate sentence was sufficient to reject a proposal made in Witherspoon v. Illinois, 391 U. S. 510, 520, n. 18 (1968), that separate juries decide these issues. The justifications for using a single jury were to avoid repetitive proceedings and to ensure that the capital defendant benefited at sentencing from any “residual doubt” regarding his guilt. See 476 U. S., at 181. However, Arkansas’ asserted interest in efficient trial management was overvalued, and the “residual doubt” justification for the single jury untenable, unless the capital defendant’s option to waive this purported benefit is recognized. Id., at 205 (Marshall, J., dissenting). Today the Court again invokes the efficiency and “residual doubt” theories to justify use of a single jury in a capital trial. But it extends this reasoning to apply to a defendant who is tried jointly on exclusively noncapital charges.
As I observed in McCree, there are relatively few capital trials among state criminal prosecutions, and even fewer capital defendants are actually subjected to sentencing proceedings. The additional costs of implementing a system of separate juries, or of providing alternate jurors who would replace those who opposed the death penalty after the guilt determination had been made, are therefore minimal by comparison. Indeed, it appears that States would save time and resources by not death-qualifying jurors before the guilt phase of every capital case. Id., at 204-205. In this case, the Commonwealth’s asserted interest in efficiency is even more attenuated than it was in McCree. The Court cites the *428“burden of presenting the same evidence to different juries,” ante, at 418, but it can only presume the magnitude of this burden. The Commonwealth has in no manner substantiated its claim that providing separate juries or alternate jurors in joint trials involving noncapital defendants would create an ■ intolerable administrative burden.1 It cites no other instance of having prosecuted a noncapital defendant alongside a capital defendant. The rarity of joint trials such as petitioner’s belies any claim that the cost of empaneling an extra jury, or of providing alternate jurors, overrides his interest in being tried before a jury that is not uncommonly conviction prone. Moreover, under these proposals, the presentation of evidence need not have taken place more than once: one jury, not death qualified, could sit to decide guilt for both defendants and a sentence for the noncapital defendant, while simultaneously a death-qualified jury, or a number of death-qualified alternates, could hear the same evidence in preparation for a possible sentencing proceeding for the capital defendant.2
*429Nor is the assertion that petitioner might have benefited from a joint trial before a death-qualified jury defensible. The application of this variant of the “residual doubt” theory is, at best, speculative. I can find no record support for the Court’s suggestion that, by not moving to sever his case from that of the capital defendant, “petitioner made the tactical decision that he would fare better if he were tried by the same jury,” ante, at 418, whether the issue were his responsibility relative to the noncapital defendant in the commission of the noncapital offenses, his culpability relative to that defendant for sentencing purposes, or the possibility of lingering doubts as to his guilt on the noncapital charges resulting in a more favorable sentence recommendation. More importantly, the Court’s suggestion that the joint trial before a death-qualified jury was in petitioner’s best interest is untenable, in light of its refusal to allow petitioner the option of waiving this perceived benefit. See McCree, supra, at 205 (Marshall, J., dissenting).3
The joint-trial aspect of this case permits the Court to venture an additional justification for a single jury not applicable in McCree: “promoting the reliability and consistency” of the judicial process. Ante, at 418. But petitioner’s proposals for separate juries or alternate jurors in no way endanger these *430interests. Regarding guilt or innocence as between capital and noncapital defendants tried jointly, a single nondeathqualified jury would make reliable and consistent findings, findings that are not tainted by the proven conviction-prone character of a death-qualified jury. That same jury’s recommended sentence for the noncapital defendant would, by its very nature, be fully informed. A separate death-qualified jury, or the original jury now death qualified with alternates replacing jurors who oppose the death penalty, would hear additional evidence and assess the appropriate sentence for the capital defendant. These jurors, having all observed the guilt phase of the trial as well, would be fully apprised of the acts underlying the offenses for which convictions were returned. There simply remains the matter of consistency as between the defendants regarding their respective sentences. The sentencing alternatives for the convicted capital defendant are life and death. These options equal or exceed in severity the possible sentences the noncapital defendant may receive. There is no danger that the noncapital defendant would be punished more severely than the capital defendant. Petitioner’s suggested alternatives would, therefore, not produce unreliable or inconsistent assessments of guilt or of culpability for sentencing purposes.
Petitioner sought simply to have his guilt or innocence and possible sentences on exclusively noncapital charges determined by jurors as impartial as those that sit in all other noncapital cases. Death qualification unfairly tilts the scales of justice in favor of the prosecution, and was particularly unfair in this case because the qualification criteria were entirely unrelated to the issues to be decided with respect to this defendant. It is conceded, see Tr. Oral Arg. 34, and the Court’s analysis today implicitly accepts, that the Sixth Amendment would have prohibited death qualification had petitioner been tried alone. Having chosen to proceed with a joint trial, it is incumbent on the Commonwealth to justify the resulting deprivation of petitioner’s constitutional right *431to have an impartial and representative jury decide his fate. No interest of the Commonwealth justifies death qualification before the guilt phase in a trial against a capital defendant, and a fortiori no interest justifies death qualification of a jury that is to decide issues affecting a noncapital defendant in a joint capital trial. Today’s decision, like others before it, is the product of this Court’s “unseemly eagerness to recognize the strength of the State’s interest in efficient law enforcement and to make expedient sacrifices of the constitutional rights of the criminal defendant to such interests.” Wainwright v. Witt, 469 U. S. 412, 462-463 (1985) (Brennan, J., dissenting).
II
In his defense, petitioner relied on psychological reports prepared while he was in the custody of the Commonwealth’s juvenile justice system before the commission of the crimes in this case. See ante, at 408-409, and n. 9. These reports tended to establish that he had suffered from emotional disturbance and had been in need of treatment. A lack of treatment would have supported a finding that petitioner had later acted, at the time of the crimes charged, “under the influence of extreme emotional disturbance.” Ky. Rev. Stat. § 507.020(1)(a) (1985). Such a finding would have precluded petitioner’s conviction of murder. To rebut this evidence of emotional disturbance, the Commonwealth introduced over objection the contents of a mental status report prepared at the request of both petitioner and the Commonwealth after petitioner had been arrested, and addressing issues wholly unrelated to his mental state at the time of the alleged offense.
In accordance with the parties’ request, the examiner assessed whether petitioner met the criteria for involuntary hospitalization and treatment pending trial. The focus of the examiner during his “one hour” interview with petitioner was on the “here and now,” and not on petitioner’s mental condition when the killing occurred, seven months earlier. App. *43272; see ante, at 412, n. 12. As such, the information in the report was irrelevant to the issue on which it was admitted. Yet the limited focus of the report is significant: it demonstrates the fundamental distinction between an examination for the purpose of assessing a defendant’s then-present amenability to involuntary hospitalization and treatment pending trial, and an examination for the purpose of assessing the defendant’s prior mental condition at the time of the alleged offense. The Court acknowledges this temporal difference, ante, at 423-424, n. 20, but misses its importance.4
The Kentucky statute governing involuntary hospitalization and treatment at the time of petitioner’s examination was designed to assist the mentally ill person who currently “presents an immediate danger or an immediate threat of danger to self or others as a result of mental illness,” who “can reasonably benefit from treatment,” and for whom “hospitalization is the least restrictive alternative mode of treatment presently available.” Ky. Rev. Stat. § 202A.070(5) (1977). Clearly, the examination was not intended to generate evidence of a defendant’s criminal responsibility, including his mental status at the time of an alleged offense. The examination takes its meaning instead from humanitarian and therapeutic concerns unrelated to the prosecution of criminal defendants, concerns that may be fully served only by the unimpeded establishment of relations of trust and cooperation among the physician, the Commonwealth, and the potential patient. These concerns apply with full force to the mentally ill criminal defendant, and in this context re*433quire the trust and cooperation of the defendant’s attorney as well. If the purposes of the involuntary hospitalization and treatment provision are to be attained, and examinations are to be accurate and treatments effective, the defendant must feel free to request an examination without lingering fears that the content of his discussions with the examiner, or the examiner’s impressions of his current mental status, will be used against him at trial.5
It is no doubt possible, though I believe unlikely, that the Commonwealth intended to offer petitioner the possibility of “involuntary” hospitalization and treatment pending trial only on the condition that he waive objections to the admission of inculpatory statements given or impressions made during his examination. However, because such a decision is totally at odds with the fulfillment of the statute’s underlying purposes, it cannot be assumed that either petitioner or his attorney knew of this condition when joining a request for the examination. To the contrary, the fair assumption is that petitioner implicitly limited his consent to the examination with due regard for the purposes it was designed to serve. Our decision in Estelle v. Smith, 451 U. S. 454 (1981), contrary to the Court’s reading of it today, ante, at 425, did not put petitioner and counsel on notice that statements made *434during this examination could be used by the Commonwealth to rebut petitioner’s temporally and functionally unrelated evidence of emotional disturbance. Estelle v. Smith did not hold that the contents of any psychological report may be admitted as rebuttal evidence on an issue of the defendant’s mental status. Petitioner’s request for the examination was materially uninformed, as was his consultation with counsel. He was therefore denied his rights under the the Fifth and Sixth Amendments, which demand more sensitive consideration of the limited purposes of specific psychiatric examinations than the Court is willing to recognize today.6
I respectfully dissent.
Indeed, the fact that the Commonwealth requires bifurcated proceedings, with the possibility of empaneling separate juries “for good cause,” Ky. Rev. Stat. § 532.080(1) (1985), to impose enhanced sentences on persistent felony offenders is strong evidence that its claim of administrative burden in the present case is exaggerated.
To bolster its perception of the Commonwealth’s administrative burden, the Court describes an “anomalous result” that it believes would inexorably obtain if petitioner’s proposals were accepted, in cases in which a capital defendant is also charged with noncapital offenses, indicating that more than one trial would logically be required. Ante, at 419. I disagree. In the first place, no such claim by a capital defendant has been presented to this Court. If this claim were presented, however, I would, consistent with my dissent in Lockhart v. McCree, 476 U. S. 162, 203-206 (1986), hold that separate juries for the guilt and sentencing issues should be empaneled, or that alternate jurors should be provided so that death qualification could occur only after a decision had been reached on the defendant’s guilt or innocence on all alleged offenses. Separate trials would not necessarily be required. But even if they were, the Commonwealth has altogether failed to demonstrate the incidence of the separate trials that might *429occur. I cannot accept the Court’s invocation of a perceived burden, totally unmeasured, in order to justify petitioner’s trial before an uncommonly conviction-prone jury.
The record, in fact, precludes any inference that petitioner somehow benefited from the assessment of this death-qualified jury regarding his guilt and sentence. The jury flatly ignored the prosecutor’s specific explanation in closing argument that the Commonwealth was not asking for a finding of guilt under the instruction on intentional murder, the crime for which petitioner was convicted, but rather under a theory of conspiracy. Tr. 1336 (Aug. 2-13, 1982); App. 74-75. The sentence fixed by the jury for each offense — murder, robbery, rape, and sodomy — was the maximum the law allowed, and the jury took the unusual step of directing on its own initiative that the sentences be served consecutively. Tr. 1347-1348 (Aug. 2-13, 1982); App. 75.
The Court emphasizes instead the different purposes of an examination for competency to stand trial and an examination for pretrial involuntary hospitalization and treatment. Ante, at 423-424, n. 20. Yet both types of examination focus on the defendant’s present mental condition. Nor is it sufficient to observe that the reports relied upon by petitioner and the report relied upon by the Commonwealth were “similar in nature,” only produced following evaluations “performed” at different times. Ibid. The relevant distinctions are the temporal focuses and underlying purposes of the examinations themselves.
The Commonwealth is free, of course, to compel a separate examination specifically inquiring as to the mental condition of the defendant at the time of the alleged offense, once put on notice that the defendant will place this mental condition in issue. Estelle v. Smith, 451 U. S. 454, 465 (1981). Given notice, the Commonwealth bears full responsibility for being prepared at trial to rebut a mental status defense.
Though not essential to my view of the proper resolution of this case, there can be no argument that petitioner exploited protected examination procedures in order to manufacture evidence to support a mental status defense. The psychological reports upon which he relied at trial were prepared at the Commonwealth’s insistence while petitioner was under the supervision of the juvenile justice system. Moreover, the examinations were conducted before the crimes in this case were committed, thus preventing any inference that the evidence of petitioner’s emotional disturbance was a product of self-serving origin.
The right to be tried and convicted only if legally competent inheres in the Fourteenth Amendment, see Pate v. Robinson, 383 U. S. 375, 378 (1966), and thus implicates constitutional principles in addition to the Fifth and Sixth Amendment requirements of an informed request for a mental examination and informed consultation with counsel. As the Court correctly points out, though the purposes of a competency examination and an examination to assess amenability to involuntary hospitalization and treatment differ, ante, at 411, n. 11, and 423-424, n. 20, the examinations share an identical temporal focus and may be ordered against the wishes of a criminal defendant. Moreover, the integrity of the clinical endeavor envisioned by both examinations requires the creation and maintenance of relations among the prosecution, defense, examiner, and defendant that are as open and as cooperative as possible. Therefore, I also reject the Court’s suggestion that, where a defendant places his mental status at the time of the alleged offense in issue by relying on reports of psychological examinations that do not address mental competency at the time of trial, he should expect that the results of his competency examination may be used by the prosecutor in rebuttal. Ante, at 425, n. 21.