1. Amnesia and Criminal Competencies Forensic Neuropsychology Marie Schroder June 8, 2006

2. Amnesia Conceptualized by neuropsychologists Conceptualized by neuropsychologists  Profound deficit in acquisition, retention, or retrieval  Anterograde/ Retrograde  Amnesic syndrome  Anatomical substrate  MTL, Diencephalon, Basal Forebrain

3. Amnesia in the Legal System General Misconception: Amnesia is tantamount to having a bad memory General Misconception: Amnesia is tantamount to having a bad memory  amnesia is “simply the inability to remember” (Thomas v. State, 1975)  “amnesia is present to some degree in everyone” (State v. Molnar, 1980) Scientific basis may be misunderstood Scientific basis may be misunderstood  “in most cases of amnesia due to physical trauma, there is not only a loss of personal memory, but also an inability to recall acquired facts, and a loss or impairment of the power to use words” (American Law Report, 1972)

4. Types of Amnesia In the large majority of criminal cases, loss of memory either has a functional origin or concerns only a single critical event (Schacter, 1986) In the large majority of criminal cases, loss of memory either has a functional origin or concerns only a single critical event (Schacter, 1986) Organic amnesia Organic amnesia  Alcohol related  Head injury  Epilepsy Functional amnesia Functional amnesia  Dissociation  Fugue

5. Organic Amnesia Alcohol related amnesia Alcohol related amnesia  Alcoholic blackout – onset is abrupt and duration usually confined to a few hours  Long-term alcoholism resulting in chronic memory disorder

6. Organic Amnesia Epilepsy Epilepsy  Typically complex partial seizures  Automatism - behavior that is executed involuntarily without consciousness or intention

7. Organic Amnesia Head injury: sustain head injury in the course of the offense or subsequent to it Head injury: sustain head injury in the course of the offense or subsequent to it  May suffer a retrograde amnesia for the act and prior events  May suffer anterograde amnesia

8. Functional Amnesia Cannot be understood in terms of brain dysfunction Cannot be understood in terms of brain dysfunction Sudden inability to remember personal information (often restricted to incidents surrounding critical event) Sudden inability to remember personal information (often restricted to incidents surrounding critical event) Cause is thought to be one or more emotionally disturbing or traumatic events Cause is thought to be one or more emotionally disturbing or traumatic events

9. Functional Amnesia Dissociation Dissociation  Dissociation at material time  Fugue – dissociative state characterized by amnesia and physical flight from environment; often assumption of new identity  Multiple Personality Limited amnesia – pathological forgetting of a specific episode Limited amnesia – pathological forgetting of a specific episode  State dependent

10. What defendants are most likely to claim amnesia? Amnesia is a common claim in those charged with homicide or other crimes of serious violence Amnesia is a common claim in those charged with homicide or other crimes of serious violence  estimates for amnesia for homicide range from 23-65% Taylor and Kopelman (1984) studied men remanded for violent and nonviolent offences Taylor and Kopelman (1984) studied men remanded for violent and nonviolent offences  Amnesia claimed by nearly 10% of sample, all of whom committed crimes of violence  Amnesics had concomitant psychiatric disorder (e.g., depression, alcohol abuse, schizophrenia)  Strong association between amnesia and offences in which victim was someone to whom the offender had been close

11. Criminal Competencies Competency to confess Competency to confess Competency to plead Competency to plead Competency to waive right to counsel Competency to waive right to counsel Competency to stand trial* Competency to stand trial* Competency to be sentenced Competency to be sentenced Competency to waive further appeal Competency to waive further appeal Competency to be put to death Competency to be put to death

12. Competency to stand trial Dusky v. U.S. (1960) emphasizes present ability Dusky v. U.S. (1960) emphasizes present ability Amnesia should be considered in competency evaluation Amnesia should be considered in competency evaluation  Can a defendant establish a reasonable defense if he is amnestic for the offense?  General memory problems more likely to be probative for competency issues than amnesia for offense  Courts more receptive to temporary amnesia

13. Wilson v. U.S. (1968) Federal Court of Appeals concluded that amnesia did not eliminate competency to stand trial. They enumerated 6 factors determining the effects of amnesia on competency: Federal Court of Appeals concluded that amnesia did not eliminate competency to stand trial. They enumerated 6 factors determining the effects of amnesia on competency: 1. The extent to which amnesia affected the defendant’s ability to consult with and assist his lawyer* 2. The extent to which the amnesia affected the defendant’s ability to testify in his own behalf*

14. Wilson v. U.S. (1968) 3. The extent to which evidence relating to the crime itself or to any reasonably possible alibi could be reconstructed from sources other than the defendant’s memory 4. The extent to which the government assisted the defendant and his counsel in that reconstruction 5. The strength of the prosecutor’s case, i.e., whether the case was strong enough to negate all reasonable hypotheses of innocence 6. Any other facts and circumstances that would indicate whether the defendant had a fair trial

15. Case Example People v. Palmer (2000) People v. Palmer (2000)  Possession of large quantity of marijuana  Subsequent on-the-job accident resulting in multiple skull fractures  Claimed amnesia for event leading to charges; claim accepted by court appointed evaluator  Was he incompetent to stand trial because he was unable to assist in his defense, as counsel claimed?  NO: Understanding of proceedings present; Found competent to stand trial and convicted

16. Other criminal issues Actus Reus Actus Reus  Excludes automatism: Courts have generally found that individuals are not criminally responsible for acts committed during an epileptic seizure Mens Rea Mens Rea  Amnesia does not affect responsibility for actions, unless person additionally falls under insanity standard  “disease of mind” argument successful in some cases of amnesia due to long-term alcoholism Diminished Capacity Diminished Capacity  Amnesia may preclude specific state of mind for crime charged (e.g., manslaughter rather than 1 st degree murder)

17. Malingering? Amnesia can be feigned… Evaluating legitimacy Evaluating legitimacy  Defendant’s behavior  Nature of memory loss (onset, consistency)  Interview procedures  Psychophysiological  Objective tests  Symptom validity test**

18. Summary Legal system needs education about amnesia Legal system needs education about amnesia Courts have generally ruled that amnesia is not sufficient to establish incompetency to stand trial Courts have generally ruled that amnesia is not sufficient to establish incompetency to stand trial Skepticism regarding genuineness of claims of amnesia Skepticism regarding genuineness of claims of amnesia Courts beginning to ask questions of psychologists regarding the effects of amnesia and the possibility of feigning memory loss Courts beginning to ask questions of psychologists regarding the effects of amnesia and the possibility of feigning memory loss

19. References Denney, R. L. (2005). Criminal forensic neuropsychology and assessment of competency. In G. J. Larrabee (Ed.), Forensic Neuropsychology: A Scientific Approach (pp. 378-424). New York: Oxford University Press. Denney, R. L., & Wynkoop, T. F. (2000). Clinical neuropsychology in the criminal forensic setting. Journal of Head Trauma Rehabilitation, 15, 804-828. Howard, C. (1990). Amnesia. In R. Bulglass & P. Bowden (Eds.), Principles and Practice of Forensic Psychiatry (pp. 291-298). London: Churchhill Livingstone. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (Eds.). (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2 nd Ed.). New York: The Guilford Press. Miller, R. D. (2003). People v. Palmer: Amnesia and competency to proceed revisited. The Journal of Psychiatry & Law, 31, 165-185. Rubinsky, E. W., & Brandt, J. (1986). Amnesia and criminal law: A clinical overview. Behavioral Sciences & the Law, 4, 27-46. Schacter, D. L. (1986). Amnesia and crime: How much do we really know? American Psychologist, 41, 286-295. Taylor, P. J., & Kopelman, M. D. (1984). Amnesia for criminal offences. Psychological Medicine, 14, 581-588.