Chapter Fifty Three

Lachie

Yesterday, Stephen filled me in on the accident and the situation. I was eager to meet Trinity, to gauge her state of mind. I was equally eager to get her in front of the Grand Jury for her own trial. This could work in our favor.

In criminal law, there's a difference between an intentional act and an accident. Serious crimes usually involve both a voluntary act and a guilty mind. The law assumes that no one should be held responsible for a crime without being at fault. But, even with this principle, the law still punishes those who can't remember their alleged crime.

There's evidence of a high occurrence of crime-related amnesia. The medical community recognizes it as a real condition. I'll explore the standards used to evaluate criminal responsibility, the medical perspective of crime-related amnesia, and how courts handle defendants with amnesia. I believe the current legal approach is flawed because amnesia is relevant to criminal responsibility.

Claims of crime-related amnesia are not rare. Offenders of violent crimes often report total or partial amnesia for their actions. In one study, 19 out of 203 men charged with violent and non-violent crimes reported having partial or no memory of the incident. In another study, 23 percent of men charged with violent crimes reported partial or total amnesia of the event.

Amnesia claims are most common in murder or manslaughter cases, but they also occur in sexual crimes, domestic violence, and fraud cases.

There are two types of genuine crime-related amnesia: dissociative and organic. Dissociative amnesia is when a person can't remember events after a traumatic experience, even without a neurological defect. One theory suggests that extreme emotional arousal can trigger a temporary dissociative state, causing the individual to forget their actions.

From what Stephen explained about retrograde amnesia, I believe we could argue dissociative amnesia for Trinity's case.

Despite its medical legitimacy, courts don't recognize amnesia as a separate defense. If amnesia is involved, defendants usually raise it under the context of competency to stand trial, or label it an insanity defense.

Amnesia raises genuine issues of competency, but courts often dismiss its effect. Also, amnesia doesn't fit neatly under the insanity defense framework, because unlike insanity, which pre-dates or is contemporaneous to the conduct in question, many types of amnesia develop after the criminal conduct.

The Constitution requires that a defendant is competent to stand trial. The Circuit Court outlined six factors to consider when evaluating whether crime-related amnesia affects an individual's competency to stand trial:

(1) The extent to which the 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

(3) The extent to which the evidence in suit could be extrinsically reconstructed

(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction

(5) The strength of the prosecution's case

(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.

We had to be pragmatic in our approach because the way courts currently interpret competency for amnesiac defendants neglects the reality: amnesia actually affects a defendant's opportunity for an adequate defense. The courts' narrow construction of 'ability to consult his lawyer' as the ability to 'communicate in a normal manner with his attorney' fails to recognize the actual symptoms of amnesia, and how they impact a defendant's defense.

While an amnesiac defendant can physically consult his attorney, he is unable to identify key witnesses who could support his innocence, or attest to his whereabouts and actions at the time of the crime. Any dissociative episode would prevent the individual from accessing the facts most relevant to his defense and challenging the prosecution's case because he is unable to identify the discrepancies between the opposing witnesses' testimony and his own recollection of the events.

Our biggest advantage is that we're not claiming crime-related amnesia, which is common among offenders of violent crimes and difficult for courts to accept. We're claiming medically induced amnesia as a result of a serious head injury. This gives us cause to argue competency to defend herself adequately on trial. And given the advantage we had of Benji's previous attempts to squash this in court, I was confident we had the relevant information to ensure her case was

The courts should consider amnesia claims relevant. Though not necessarily dispositive, such claims should be examined on a case by case basis designed to preserve the constitutional rights of defendants. When amnesia claims are found to be genuine and to interfere with the ability of the defendants to assist in their own defense, especially in the cases based on circumstantial evidence or without a clear motive for the crime, such defendants should be found Incompetent to stand trial.

I see her walking into the building with Stephen. She looks almost terrified. I feel a lump rise in my throat. I hope we can help this mother and wife through what could be the fight of her life.