AMNESIA AND CRIMINAL
COMPETENCIES:
MAJOR ISSUES
Aliyah R. Snyder
Forensic Neuropsychology
June 9, 2014
Competency and NP
Competency vs. Capacity
• Ultimately, a question of “decision-making capacity”
• Capacity is an individual’s ability to make an informed decision
• “Competence refers to the degree of mental soundness necessary
to make decisions about a specific issue or to carry out a specific
act.”
• Legally-defined “competency” much different than general ideas about
the ability to make a decision
• Competency is a legal construct, not medical
• Legal Competency decisions are very serious because
they may result in loss of civil rights
• difficult to prove legal incompetence
• This may be NP’s most useful capacity in the forensic
setting
Resnick & Sorrentino, 2005; Moberg & Kniele, 2006
Legal Definitions of Competency
For most state legislation:
1. disorder or disability
2. impairment in decision making or communication
3. functional impairment
Possibly more useful definition:
“Incompetence constitutes a status of the individual that is
defined by functional deficits (due to mental illness, mental
retardation or other mental conditions) judged to be sufficiently
great that the person currently cannot meet the demands of a
decision-making situation, weighed in light of its potential
consequences.”
Grisso & Applebaum (1998) modified by Moberg & Kniele (2006)
Criminal Competencies
• Competency to Consent to a Search or Seizure - Fourth Amendment (Mapp v. Ohio, Katz
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v. United States, Florida v. Rodriguez)
Competency to Stand Trial - (Dusky v. United States)
Competency to Waive Right to Competency - (United States v. Morin)
Competency to Confess - (Brown v. Mississippi, Miranda v. Arizona. Colorado v. Connelly)
Competency to Plead Guilty - (Seiling v. Eyman, Godinez v. Moran, Godinez, Warden v.
Moran)
Competency to Waive the Right to Counsel - (Godinez v. Moran, McKaskle v. Wiggins,
Faretta v. California)
Competency to Refuse an Insanity Defense - (Whalem v. United States, Frendak v. United
States)
Competency to Testify
Legal Requirements for Testimonial Competence - Federal Rules of Evidence, Rule 601
Assessment of Witness Credibility - Federal Rules of Evidence, Rule 508
Competency to Be Sentenced and Executed - (Saddler v. United States)
Competency at the Sentencing Proceedings (Chavez v. United States)
Competency to Be Imprisoned or Executed - (Ford v. Wainwright, Penry v. Lynaugh,
Panetti v. Quarterman )
Competency to Refuse Treatment - (Perry v. Louisiana)
Melton, 1997
Assessment of Competency
• assessment of the following abilities
• decision-making
• cognitive components: attention, orientation, memory, general
intellectual functioning, problem solving, and abstract reasoning.
• mood and ability to regulate emotions?
• determination of task demands
• consideration of the consequences of a decision
• appreciation for temporal shifts in competency
Luckily, courts recognize competency as situation-specific
• driving and financial competency are two different questions
Temporal shifts in capacity - permanent or impermanent condition?
The Amnesic Defendant
• Amnesia ≠ Incompetency
• General judicial distrust of amnesia claims for time of the incident
• For good reason: 23% of male forensic inpatients charged with
serious crimes had claimed either partial or total amnesia for their
crimes (Cima Nijman, & Merckelbach, 2004)
• Trends for those who claim: committed violent crime, concomitant
psychiatric disorders, interpersonally close to the victim of the crime
(Taylor & Kopelman, 1984)
• Most common reason for claim: alcohol/drug intoxication at time of
crime
• Courts have taken several different approaches to considering
amnesia in criminal competency
Types of amnesia:
• Organic – TBI, stroke, epilepsy, dementia, alcohol or drug-related
• Functional – dissociation, fugue
Melton, Ch. 6,1997; Smith & Resnick, 2007; Denney & Wynkoop, 2000
Dusky and Amnesia
• Dusky v. United States, 362 U.S. 402 (1960), United States
Supreme Court case which affirmed a defendant's right to have
a competency evaluation prior to trial. Basic core factors for
determining competency were defined by this case.
• Applying Dusky to the amnesic defendant. Factors to consider:
• (1) whether the defendant has any ability to participate in his defense
• (2) whether the amnesia is temporary or permanent;
• (3) whether the crime and the defendant's whereabouts at the time of
the crime can be reconstructed without the defendant's testimony;
• (4) whether access to government files would aid in preparing a
defense;
• (5) the strength of the government's case. (US v. Andrews)
Cases
• Before 1968, competency was majorly limited by amnesia,
but…
• Wilson v. United States (1968)
• Charged w/ assault and robbery, skull fractured in car accident while
trying to escape (In a coma for 3 week)
• Initial hearing held to determine competency to stand trial
• Judge determined he was incompetent to stand trial due to organic amnesia
and other mental abnormality, but a little over a year later, the hospital said
there was no reason to keep him bc his memory could not be restored.
• Second hearing – competent to stand trial despite no memory of
event.
• Wilson argued that his memory impairment interfered with his 5th and
6th amendment rights (fair trial and effective counsel)
• Amnesia not sufficient to render mentally ill because still capable of
understanding court proceedings
• Judge recommended a “case-by-case” analysis for trying amnesic
defendants was adopted to determine the extent to which the
defendant had been prejudiced by memory loss
Wilson v. US Implications
• Indicia of prejudice
• Defendant’s exhibited ability to assist counsel
• Defendant’s ability to testify
• Defense’s success in reconstructing relevant events from extrinsic
sources (including prosecutorial assistance)
• Extent to which government assisted the defense with
reconstruction
• Strength of the prosecution’s case
• Is the government’s case strong enough to “negate all reasonable
hypotheses of innocence”
• “Other relevant facts and circumstances”
Harvard Law Review, 1968
Wilson v. US Implications
• Wilson v. US required the prosecution to assist the defense
with its case more so than normally permitted, especially in
pretrial discovery
• US v. Stubblefield expanded that and required prosecution to
assist with constructing possible alibis or other defenses too.
• Other sources of prejudice and fall out:
• Greater impact by delay in proceedings for amnesic patients (Ross v.
US) trying to reconstruct events
• Defense may be less inclined to prove any ability to reconstruct events
if it may negatively impact their case lest the defendant be ruled to be
competent on this basis
• Psychiatric eval and hospital reports are therefore much less
important than in other incompetency cases.
Dissociative Amnesia
• Sudden onset and hazy/patchy memory for events at the time of
the crime
• Usually occur in states of extreme emotional arousal and the
increase of these types of claims increases with the severity of the
violence
• Some argue that the distinction b/w organic and dissociative
amnesia is arbitrary
Example: Nurse assaulted and killed a patient who yelled at her for
spilling the bedpan. Nurse had hx of previous amnestic episodes
(and hx of childhood abuse)
Psychotic Amnesia
• Violence or crime occurs in the context of a psychotic episode for
which there is no memory
Legal Perspective:
• Psychosis, disordered thoughts or delusions may interfere with
rational understanding of charges and other criminal competencies
• However, not sufficient for incompetency if able to participate in some
or all of the legal process
Automatism Defense
• Applies to both dissociative and psychotic amnesia
• Judged by whether the episode was voluntary or not
• Recognized in Canada, but also employed in the US to mitigate sentences
• Ex. Jodi Arias used this defense for stabbing her ex-boyfriend. Defense did not work.
Symptom Validity Testing (SVT)
• Useful for testing amnesia for past events
• Binomial theorem – two-alternative forced-choice
procedures for a given ability (not just memory)
• If person is impaired, their performance will fall within a random
range
• Binder, Frederick, et al. used this in criminal proceedings
for a defendant claiming amnesia for a specific past
event.
• Questions were developed (forced-choice style) around the event
and his performance was significantly worse than random
• Concluded he was feigning amnesia.
• Judges have typically accepted this as a technique that meets
Daubert criteria.
Binder, 1990; Denney & Wynkoop, 2000; Frederick & Carter, 1993
United States vs. Batista
• Braulio Antonio Batista feigned mental illness to mitigate charges for selling crack
cocaine in 2002
• Initially pleaded guilty, then lawyer requested that he be evaluated for competency
to stand trial.
• Evaluated 5 times in 2 years
• Dr. Barber – not competent to stand trial
• Dr. Ryan – agreed not competent, but noted possible malingering
• “Patients suffering from severe brain damage could generally answer at least six of the fifteen
questions included on the test. Batista answered only two correctly, indicating malingering of
memory problems.”
- Government requests further testing • Dr. Simring – competent and malingering
• “attempted to feign mental illness by refusing to sit in a chair which he claimed was occupied by his
imaginary friend, by claiming that he was in his home with his mother waiting upstairs, and by
miming the retrieval of an imaginary beverage from an imaginary refrigerator,”
• Dr. Ryan (part II)
• Dr. Morgan (neuropsychologist called chosen by Batista)
• “significant, incontrovertible and overwhelming evidence regarding the presence of suboptimal effort
and malingering in the part of the examinee . . . consistent with a picture of what might be phrased
as ‘unsophisticated malingering.”
• Ultimately argued that he should not be penalized by enhanced sentencing for
this charade because he was “exploring” his defense options.
• Court not amused
Discussion Questions
• How do you feel about the ability of NP to evaluate
temporal shifts in competencies (i.e. decision-making
abilities at a previous time point, etc.)?
• What do you think about dissociative amnesia and
criminal competencies?
• Should there be consequences for failing to discover that
the defendant is feigning mental illness? (Eliason & Chamberlain,
2008)
Competency and NP: What to do
• Need more ecologically valid NP tasks
• Do not exclusively rely on NP measures to answer this
question, also include:
• Use self-reports, structured interviews and/or
• outside reports from family members
• medical records, etc.
• Behavioral observations
Basic Components of an Evaluation:
1. Interview
2. NP testing
3. Functional ability assessment
1.
4.
through observation of bx or other measures
Review of legal standards (particularly important for civil and
criminal competency)
Competency Controversies
• Criminal competency evals as courtroom strategy
• Low threshhold for requesting competency eval
• Means to obtain information not available through discovery
• Lack of established methodological and procedural
guidelines for capacity evals
• what is the best way to evaluate everyday living in an objective
manner? Few tools for this
• Variable criteria for establishing impairment
• Comparison to age-matched peers?