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Amnesia and the determination of competency to stand trial.

I. Introduction

The relationship between amnesia and competence to stand trial ("CST") is often summed up in a single blunt phrase: amnesia for the time of the crime does not, by itself, preclude a finding of competence. (1) Although some scholars argue that amnesia is a legitimate basis for routinely finding criminal defendants incompetent to stand trial ("IST") when their amnesia impairs their ability to consult with counsel and assist in their defense, virtually every American court that has considered the issue has concluded that amnesia is not a per se (i.e., automatic) bar to the prosecution of an otherwise competent defendant. (2) While a number of different justifications have been articulated for this conclusion, including reasons that are both doctrinal (e.g., a defendant's memory for the period of time when the crime occurred is not a requirement for a fair trial) and practical (e.g., amnesia is extremely difficult to assess), (3) American courts have been described as "unanimous in refusing to equate amnesia with incompetency." (4)

This is a pivotal determination as a large number of defendants claim partial or total amnesia for the period surrounding their alleged crimes. As many as a third of the defendants accused of violent crimes make such claims. (5) Indeed, recent studies are relatively consistent in finding that 25-40% of defendants found guilty of homicide claim amnesia for their crime. (6) Claims of amnesia, however, are not limited to cases involving charges of homicide but are raised in a wide range of cases. (7)

Various traits are commonly correlated with claimants of amnesia, including being older, lower IQ, alcohol abuse, manipulative behavior, and depressed mood. (8) The amnesia may be associated with concurrent drug and alcohol use, an underlying medical condition, or be the equivalent of a posttraumatic stress disorder. (9) But because genuine amnesia is thought to be relatively rare, malingering, as will be discussed, probably accounts for many if not most of these claims. (10) In fact, the fear that a defendant is malingering appears to be the chief rationale for why amnesia has not been recognized as a per se bar to competency. (11) This makes a certain amount of sense because of the apparently high rate of malingered amnesia, the skepticism of society and the courts about such claims, and the high stakes associated with a determination of IST. Still, the judicial reluctance to find even admittedly amnesic defendants IST appears anomalous for a serious psychological problem that raises questions about the defendants' CST and their ability to receive a fair trial.

This article will critically examine how courts have addressed CST issues in conjunction with claims of amnesia. The article will conclude that (1) courts should consider amnesia claims relevant, though not necessarily dispositive, (2) such claims should be examined on a case-by-case basis designed to preserve the constitutional rights of defendants, and (3) when amnesia claims are found to be genuine and to interfere with the ability of defendants to assist in their own defense (especially in cases based on circumstantial evidence or without a clear motive for the crime), such defendants should be found IST.

II. Background

Amnesia is characterized by a disturbance in memory that is manifested either by an inability to recall previously learned information or past events (retrograde amnesia) or, less relevant here, an inability to learn and retain new information (anterograde amnesia). (12)

Amnesia is complex and varied, but because amnesia is relatively easily feigned and can be advantageous to the person claiming amnesia, it is likely that many amnesia claims are fabricated. (13)

The American Psychiatric Association ("APA") recognizes two different types of genuine amnesia: amnestic disorder and dissociative amnesia. The APA defines amnestic disorder (more commonly known as "organic" amnesia) as "characterized by a disturbance in memory that is either due to the direct physiological effects of a general medical condition or due to the persisting effects of a substance (i.e., a drug of abuse, a medication, or toxin exposure)." (14) This type of amnesia is said to arise from a physical defect that "may be structural (e.g., epilepsy, brain trauma), but it may also be momentary such as in the case of alcohol or drug intoxication." (15) Most instances of claimed amnesia in the criminal context appear to be organic--for example, intoxication at the time of the crime, brain trauma resulting from a car crash or gunshot wound, or an underlying medical condition, such as Korsakoff syndrome. (16)

In contrast, the APA defines the essential feature of dissociative amnesia (variously referred to in the literature as "psychogenic" or "functional" amnesia) as "an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by normal forgetfulness." (17) Dissociative amnesia is said to arise from an event that is so traumatic or stressful, or from a period of such high arousal, that the defendant loses or fails to form any memory of the event in question. (18) But because eyewitnesses of violent acts rarely claim amnesia for those events, the theory that the presence of strong emotions leads to amnesia is "very controversial." (19) In any event, dissociative amnesia is believed to be quite rare. (20)

Many criminal defendants likely malinger (or feign) amnesia for a variety of reasons, including attempts to avoid criminal responsibility or to obstruct police investigations. (21) These efforts may seek to take advantage of the apparently strong perception among the public that amnesia is a common and plausible reaction to a traumatic event, especially when alcohol or drugs are involved. (22) The number of offenders who feign amnesia is unknown, but is presumed to be at least 20% of all claimed cases, (23) and it may be much higher. (24) One scholar cited various studies of base rates of malingered amnesia, and found that between 30 and 40% of amnesia claims were feigned, and these percentages increased in cases where individuals were charged with criminal offenses. (25) In fact, malingered amnesia may be the "most common cause for perpetrators' failure to 'remember' the crime incident." (26)

III. Arguments that Amnesia Should Be an Automatic Bar to a Finding of Competency (27)

As noted, a large number of criminal defendants assert a lack of memory for the time period when the criminal incident occurred. Most forensic mental health experts and many courts consider the decision by the District of Columbia Circuit of the United States Court of Appeals in Wilson v. United States (28) to be the guiding (though not controlling (29)) and most comprehensive standard for determining the role a defendant's claim of amnesia plays in the assessment of the defendant's CST. (30) However, as will be discussed, while the Wilson approach is very valuable, it fails to adequately address the conceptual underpinnings of the competency determination--most importantly, the defendant's right to due process as guaranteed by the Sixth Amendment. Thus, before turning to Wilson, an exploration of the CST standard will be provided.

The United States Supreme Court has held that it is unconstitutional to convict a defendant who is IST. (31) The Court has defined the requisite test in a pair of rulings that barred the trial of defendants who could not understand the proceedings or adequately defend themselves. (32)

In the first case, Dusky v. United States, the Court held that to be judged competent to stand trial, a criminal defendant must have "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." (33) In the second, Drope v. Missouri, the Court held that "a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." (34) Although state lawmakers may require a higher level of competence, these holdings represent the constitutional minimum and reflect the standard in many states. (35) Thus, based on Dusky and Drope, two elements must be satisfied for all criminal defendants: they must have (1) a rational and factual understanding of the proceedings, and (2) the capacity to assist in preparing their defense.

Scholars have argued that genuine amnesia that results in a loss of memory for the period of time associated with a charged crime should inherently render defendants IST. Typically, they advance a broad reading of the "assist in preparing their defense" element (36) to support their assertion that amnesia necessarily renders criminal defendants IST because it fundamentally interferes with their ability to assist with their defense and consult with counsel. (37) The Dusky opinion itself seemed to suggest that memory ought to be an important consideration in the competency determination, both because the defendant in Dusky for whom a new CST hearing was ordered claimed to suffer from amnesia and because the Supreme Court in Dusky agreed with the Solicitor General that "it is not enough for the district judge to find that 'the defendant [is] oriented to time and place and [has] some recollection of events.'" (38) Some scholars have taken this statement to suggest that an important aspect of the competency determination is whether the defendant has the ability to remember the crime incident and describe it to his or her attorney. (39) A few judges have made similar arguments.

The Alaska Supreme Court noted that "partial amnesia would undeniably have impaired the appellant's ability to assist in his defense." (40) Although a majority of the Pennsylvania Supreme Court concluded that "amnesia is no defense at all" at trial, one dissenting judge argued that "the constitutional right to counsel would be a sham" if, due to the defendant's asserted amnesia, "defense counsel were not able to prepare a proper defense." (41)

In the early (pre- Dusky) case of United States v. Sermon, a federal district court judge asserted that "[b]roadly speaking, one cannot properly assist in his own defense unless he can advise his counsel concerning the facts of the case as known to him and unless, if necessary, he can testify on his own behalf in the cause concerning those facts." (42) The court continued that, although defendants are not expected to be able to "assist in their own defense by telling their lawyers what motions to file or how a particular witness should be examined, or cross-examined," they should be able to participate in "such phases of a defense as a defendant usually assists in, such as accounts of the facts [which are in legitimate dispute], names of witnesses, etc." (43)

The situation where amnesia most clearly implicates the ability of criminal defendants to consult with counsel and assist in their own defense is when some extenuating circumstances or a defense to the crime exists that the defendant cannot raise because of the amnesia, such as an alibi, an excuse, or a justification. (44) One court noted a hundred years ago that memory is vital to competency "because there may be circumstances lying in [the defendant's] private knowledge which would prove him innocent or [establish] his legal irresponsibility, of which he can have no advantage, because they are not known to persons who undertake his defense." (45)

The following account demonstrates the pejorative impact amnesia may have on a criminal defendant. The defendant was charged with sexual assault and capital murder, but claimed amnesia for the events in question. Only after several sessions with psychologists was he able to recall some of the details of his crime and assert that a sexual assault had not taken place, but that he had instead paid the victim for sex and murdered her after an argument in which the victim had tried to extort extra money from him. The police later verified his recollection with the discovery of corroborating evidence. As a result, the sexual assault charge was dropped, he pled guilty to second degree murder, and he did not have to face the death penalty. The recall of this information quite possibly saved his life. (46) Situations such as these, where the defendant is unable to challenge false or misleading evidence, emphasize the potential relevance of amnesia to competency. (47)

However, for amnesia to be recognized as routinely interfering with a defendant's ability to "assist with his defense" under Dusky-Drope, the standard would have to be read relatively broadly, certainly more broadly than is typically the case in this context. (48) Indeed, no American court has ever found amnesia alone to be a bar to competency. (49) The typical response to a broad reading of Dusky-Drope is that the Dusky test only requires a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" (50) and thus "[a] competency evaluation should focus on the defendant's present mental condition" and ability to participate during trial (i.e., communicate with his or her attorney, discuss trial strategy, and choose possible defenses). (51) The pervasive narrow reading of Dusky/Drope caused one scholar to lament that "[a]n examination of how amnesia and brain-injured cases are handled, in which the defendant can truly be said to fall short of the Dusky standard and yet in almost every case is indeed required to stand trial, reveals the utter absurdity of the law with respect to the competency issue." (52)

IV. The Two Primary Judicial Approaches to Amnesia Claims

The general unwillingness of the courts to read the Dusky-Drope standard to automatically render amnesic criminal defendants IST does not mean that all courts have completely ignored such claims. (53) Rather, modern courts have split between those that believe that amnesia is irrelevant and can never be an adequate ground for a finding of IST and those that think that amnesia must be considered as part of a fact-specific inquiry into a defendant's CST. (54)

A. Amnesia Irrelevant to the Competency Determination

Courts employing the first approach have ruled that amnesia can never be a bar to competency because amnesia is simply irrelevant to the competency determination. A federal district court summed up its views in the following way:
   [W]hile amnesia may be relevant as a
   symptom evidencing a present infirmity in
   the defendant's reasoning capacity, if the
   defendant has the present ability to
   understand the proceedings against him,
   to communicate with his lawyer and
   generally to conduct his defense in a
   rational manner, memory or the want
   thereof is irrelevant to the issue of
   competence. (55)


Courts that take this position have concluded that trials are imperfect venues in which all parties, including the defendant, suffer from lost or unavailable evidence, with amnesia being another form of "lost" evidence. (56) Alternatively, they may assert that memory is ephemeral for everyone--that everyone is amnesic to some degree because everyone forgets names, details, and places. (57) Courts of this view also tend to express their suspicion that the defendant is feigning amnesia. (58) Concern may be raised that the criminal justice system would be unable to function if trials were suspended or terminated because of a defendant's claimed amnesia. (59) Usually it is suggested that the defendant has alternative means of generating needed information and evidence. (60)

This judicial failure to find the trial of amnesic defendants unfair is deeply troubling to many scholars, who feel that courts do not take amnesia claims seriously enough. They argue that amnesia claims seem to be taken less seriously than other major mental abnormalities (such as depression and schizophrenia), to such an extent that many courts are dismissive or even flippant regarding amnesia claims. (61) The belief that amnesia is tantamount to simply having a bad memory is, according to some scholars, a "widespread misconception" that "runs throughout court decisions." (62) They note that amnesia is defined as a lack of memory that is too extensive to be explained by ordinary forgetfulness, such that "the statement that 'all people are amnesic to some extent' is, by definition, incorrect." (63) Genuine amnesia, as clinically defined, is different from normal forgetting in its nature and in its magnitude, such that the analogy to "normal forgetting" is misplaced. By critical analogy, most courts would presumably never assert that clinical depression--which, by itself, has been found to render defendants IST (64)--is actually akin to "being sad," and thus "everyone is depressed at some point." Clinical depression is of a different order and magnitude and, like efforts to link amnesia with "forgetting," neither should be marginalized or rationalized away. (65)

B. The Wilson Case-by-Case Approach

The second approach, on the other hand, concedes that while amnesia is not a bar to competency per se, the courts should examine whether the defendant's amnesia in light of the particular facts of the case rendered the defendant incompetent. (66) The best known American decision on the relationship between amnesia and CST is Wilson v. United States, which provides a comprehensive example of this functional, case-by-case approach. (67) The defendant in Wilson robbed a bank and, after a high-speed chase from the police, severely injured his head in a violent crash. (68) Upon waking from a lengthy coma, he claimed to have no knowledge of the period from several hours before the robbery to when he awoke three weeks later. (69) Under these circumstances, the government conceded the usually "hotly contested" claim of his permanent amnesia at trial. (70) Thus, because malingering was not a concern, Wilson became an ideal case for exploring the extent to which amnesia affects a criminal defendant's ability to receive a fair trial and its relevance to CST determinations.

In its decision, a majority of the court emphasized that the defendant must be able to perform the functions that are essential to the fairness and accuracy of a criminal trial, embraced a case-by-case determination of the effect of amnesia on the ability to receive a fair trial, and established six specific factors to be considered in making this determination. (71) The six listed factors were:

(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 on his own behalf; (3) The extent to which the evidence ... could be extrinsically reconstructed in view of the defendant's amnesia....; (4) The extent to which the Government assisted the defendant and his counsel in that reconstruction; (5) The strength of the prosecution's case. Most important here will be whether the Government's case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so; (6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial. (72)

Although, as argued below, this ruling placed undue emphasis on the question of the defendant's guilt rather than his due process rights, the court's functional approach was for the most part well-considered and many scholars have praised the Wilson decision for its practical and sensible treatment of the issue. (73) But although several courts have also employed case-by-case approaches, (74) the Wilson multi-factor approach has unfortunately not received universal acclaim--indeed, "[o]nly a few courts [have] explicitly discussed the Wilson criteria" at all. (75)

V. Amnesia and Judicial Pragmatism

From a theoretical perspective, whether amnesia should sometimes prove a bar to competency is a close question with strong arguments on both sides. But the dearth of cases that have actually found amnesia dispositive seems quite surprising in light of the high number of such claims and the academic support it has received. Perhaps the explanation is that pragmatic reasons for discounting amnesia claims tip the scales. Indeed, many courts seem preoccupied with practical fears, such as the consequences of finding amnesic defendants incompetent and the difficulty of detecting malingered amnesia.

A. The Problem of Finding Amnesic Defendants IST

Many courts have expressed reluctance to find defendants IST because of amnesia in part because of the possible consequences of finding these defendants incompetent. (76) Because the United States Supreme Court ruling in Jackson v. Indiana prohibits holding an unrestorably incompetent defendant indefinitely without trial, (77) "[i]f the amnesia is permanent, a finding of incompetency would be tantamount to a dismissal of charges" and permit the defendant to avoid prosecution. (78) This has resulted in a judicial "fear that amnesia might provide a 'ready-made' defense to all criminals." (79) The Pennsylvania Supreme Court noted:
   If in fact the condition of amnesia Is
   permanent, defendant's contention (1)
   would require Courts to hold that such
   amnesia will permanently, completely and
   absolutely Negate all criminal responsibility
   and (2) will turn over the determination of
   crime and criminal liability to psychiatrists,
   whose opinions are usually based in large
   part upon defendant's self-serving
   statements, instead of to Courts and juries,
   and (3) will greatly jeopardize the safety
   and security of law-abiding citizens and
   render the protection of Society from crime
   and criminals far more difficult than ever
   before in modern history.... Unless an
   accused is legally insane, the law is not
   and should not be so unrealistic and
   foolish as to Permanently free, without
   acquittal by a Judge or a jury, a person
   against whom a prima facie case of murder
   is made out. (80)


But this judicial fear is at least somewhat misplaced. The same concern applies to any mental disorder that would lead to a finding of IST, yet courts following the constitutional mandate recognized by the United States Supreme Court have been (at least selectively) vigilant in refusing to permit the prosecution of criminal defendants with other mental disorders that functionally impair their right to a fair trial, notwithstanding that such defendants may ultimately avoid prosecution. Granted, amnesia claims may be more prevalent and less treatable than other mental disorders; but, as will be discussed, improved techniques to detect malingered amnesia are available, and the treatment of genuine amnesia has improved. (81) Further, competency has traditionally (and sensibly) been evaluated without regard to the possible obstacle it poses to securing a guilty verdict. (82) Some courts have temporarily stayed criminal proceedings in the hopes that the amnesiac would eventually recover some memory. (83) But if it is unfair to try a defendant who is currently experiencing amnesia, there is no principled explanation for how it somehow becomes fair, after a stay without memory improvement, to try the defendant anyway. As one scholar points out, "appellate decisions ... seem to be made on the practical basis that an adjudication of a permanently amnesic defendant as incompetent precludes forever the possibility of his returning to trial." (84) The desire to obtain a guilty verdict should not trump the consistent and principled application of the standards for adjudicating CST.

B. The Problem of Malingered Amnesia

Of seemingly greater concern to many courts than the practical consequences of holding amnesiacs incompetent is the special problem of malingered amnesia. Malingering is indeed a widespread problem, and it is the first issue that forensic mental health experts and courts must address when confronted with an amnesia claim. (85) Courts are understandably cautious with claims of amnesia, due to both the high rate of such claims and the perceived

ease of malingering. (86) Indeed, courts have consistently pointed to the supposed ease and likelihood of feigning amnesia, as well as the difficulty of detecting it, as justification for finding allegedly amnesic defendants CST.87 For example, the Supreme Court of Alaska held that "[t]he potential for fraudulent allegations of memory loss is so great that we would for this reason alone be reluctant to follow [sic] amnesia as a ground for a finding of incompetency even if we were otherwise inclined to do so." (88) Potentially exacerbating this problem is the fact that some expert testimony is based on patient interviews alone, which makes it very difficult to determine whether the amnesia claims are malingered. (89)

Undoubtedly, the practical problem of discerning real from feigned amnesia is a key obstacle to recognizing amnesia's potential relevance to determinations of CST. However, if this practical consideration is the primary basis for precluding amnesia as a basis for a finding of IST, then the focus should be on generating greater understanding of the differences between genuine and feigned claims and better mechanisms to distinguish them, rather than automatically excluding all claims of amnesia from consideration. (90)

VI. Distinguishing Genuine from Malingered Amnesia Claims

Efforts are ongoing to better distinguish genuine from malingered amnesia. The following provides a brief description of a few of these efforts.

A. Detecting Malingering in Cases of Claimed Organic Amnesia

Organic amnesia that involves traumatic brain injury asserted to be preventing the defendant from recalling events immediately before or after the injury is more often conceded at trial because the related amnesia tends to follow a fairly predictable course of injury and memory recovery known as Ribot's Law. (91) Organic amnesia under these circumstances is relatively unproblematic for the courts compared to dissociative amnesia, in part because the typical course of organic amnesia makes it much harder for defendants to simulate. (92)

When physical evidence of brain trauma or events likely to have induced this trauma (such as a severe blow to the head) exists, courts tend to consider amnesia claims more plausible. The consideration of amnesia in this context is generally less controversial. (93)

For example, in Wilson v. United States, the defendant's car accident and subsequent three-week coma following his bank robbery spurred the prosecution's decision to concede his amnesia for the crime. (94) Other cases follow a similar pattern where a defendant shoots someone before turning the gun on him or herself, and yet somehow manages to survive. (95) In these cases, because one of the common resultant brain symptoms of such events is amnesia, the defendant's amnesia is rarely disputed.

B. Detecting Malingering in Cases of Claimed Dissociative Amnesia

Cases of dissociative amnesia, on the other hand, are relatively rare and harder to detect, and thus more fraught with the danger of malingering. (96) One group of scholars determined that both lay persons and expert witnesses tend to significantly overestimate the occurrence of dissociative amnesia and "view dissociative amnesia as the rule and feigned amnesia as the exception." (97) Their literature review, however, led them to conclude that "it would be wise to reverse these probability estimates." (98) Indeed, legal commentators have confidently asserted the impossibility of detecting malingered amnesia for decades. (99)

Traditional forensic interviews are generally unhelpful and unproductive because the person being interviewed can simply claim to have no memory of the events in question and because a simulator can give a compelling imitation of someone with amnesia. (100) It has been noted that forensic evaluators, unfortunately, often use interviews with the defendant as the sole source of information for their opinions on whether a claim of amnesia is genuine or malingered. (101) It has been asserted that "[i]t is only on the basis of psychological tests and tasks, that an expert will be able to identify simulators," (102) and thus "experts who at the request of the court have to evaluate a case in which crime-related amnesia is claimed can and should do more than just interview the defendant." (103)

C. Clinical Research on Amnesia Malingering Detection

In fact, researchers in several recent studies have attempted to detect the presence of malingered amnesia in clinical and forensic settings, but with varying degrees of success. [104] For example, some found that it is difficult to detect malingering with confidence in the absence of external verification. (105) Still, several techniques have proven useful in distinguishing real from feigned cases of amnesia. (106) One promising group of studies describes a series of recently developed self-report instruments that have made great strides in detecting malingering in clinical settings, and have begun to test them in forensic settings as well. Two techniques deserve specific mention. (107)

The first is an instrument known as Symptom Validity Testing (SVT), where "the defendant is asked a series of dichotomous (true-false) questions about the crime and the circumstances under which it took place." (108) When providing purely random responses, the defendant's answers should be correct about 50% of the time. Performance significantly below chance indicates that the individual is avoiding correct alternatives, which in turn indicates that they know which are the correct answers and are feigning memory impairment. (109) Several studies have been reported in which suspected or confirmed malingerers, including individuals within a forensic setting, showed a response score significantly below chance. (110) The test procedure was found to be relatively robust, to be easy to administer and relatively easy to interpret, and to function well even when the number of test items was as few as ten, although a greater number was recommended to permit the use of a "runs" test to better detect simulation. (111)

Another promising method that forensic evaluators can use to detect malingering are self-report questionnaires that capitalize on the tendency of malingerers to exaggerate their amnesia. (112) The Structured Inventory of Malingered Symptomatology (SIMS) is a questionnaire that consists of seventy-five dichotomous (true-false) items that asks defendants to answer questions about how they experience amnesia. It is based on the assumption "that malingerers will exaggerate and so will endorse bizarre, unrealistic, and atypical symptoms." (113) There are five subscales, with subscales corresponding to symptoms domains that are sensitive to malingering and include low intelligence (LI), affective disorder (AF), neurological impairment (N), psychosis (P), and amnestic disorder (AM). (114)

Like the SVT, studies with SIMS have reported excellent results, identifying in a controlled setting more than 90% of malingerers and more than 90% of "honest" control subjects. (115) Similarly promising results were found in forensic settings, with the instrument demonstrating both high sensitivity (identifying malingers correctly) and high specificity (classifying non-malingerers correctly). (116)

Other studies have analyzed the relative success of using hypnotism, sodium amytal ("truth serum"), or state-dependant recall to test for malingering, as well as to revive "lost" or inaccessible memories. (117) The underlying theory of these approaches is that techniques that reduce the anxiety associated with unavailable memories may make the memories available again. (118) Courts in general have been skeptical about these techniques and their use has been controversial. (119) It has been concluded that the validity of these techniques to establish the presence or absence of malingering has not been established. (120) However, it has been suggested that they may have value because "they frequently elicit 'fuller' disclosures because the average defendant believes that they will discover deception." (121)

VII. A Better Approach for Amnesia Claims

It is true that criminal defendants are "entitled to a fair trial, not a perfect trial," as courts are fond of saying in the amnesia context, (122) but to prevent the rights to receive the assistance of an attorney and to receive a fair trial from being empty rights, courts should closely consider the purpose of a competency determination when a claim of amnesia is raised. Because some of the practical concerns have been reduced as better techniques have been developed for detecting malingered amnesia, courts should consider how the problems posed by the amnesic criminal defendant can be better addressed.

As a first step, for the reasons outlined above, no court should automatically dismiss amnesia claims as irrelevant to the competency inquiry. Rather than categorically rejecting such claims, courts should use the case-by-case approach that scholars favor, (123) and that some courts already employ--most prominently in Wilson v. United States. (124) Particularly when the existence of amnesia is conceded or competent experts agree on its existence, courts should follow the lead of Wilson and sincerely consider on a case-by-case basis the possibility that the amnesia may render the defendant IST and unable to obtain a fair trial.

Second, when conducting this case-by-case approach, the focus should not be on the likely guilt or innocence of the accused, but rather on whether the amnesia, if established to be genuine, will result in an inability to consult with counsel and to assist in preparing his or her defense. Courts should assess the functional limitations posed by the amnesia for the exercise of these rights. (125) The six factors identified in Wilson are a good starting point for this assessment, with their examination of whether the amnesia interferes with the defendant's ability to testify and to consult with counsel; whether the evidence can be extrinsically reconstructed and the extent to which the government can and has aided in that reconstruction; the strength of the prosecution's case; and any additional facts or circumstances that indicate whether the defendant can and will receive a fair trial.

However, the concurring judge in Wilson described the "nub" of the majority's opinion as being that for brain-damaged, non-malingering amnesiacs, the judge and jury must "make a fact finding that there is no reasonable doubt of guilt." (126) But competency determinations should not and are not limited to defendants who are possibly not guilty, but afford protections to which all incompetent defendants are entitled. As the dissenting judge vigorously argued in Wilson:
   Determination of guilt is not the test of the
   validity of a criminal conviction under our
   system of law. Though such a
   determination is essential, it must be
   reached at a trial which conforms to the
   requirements of the Bill of Rights.
   Ascertainment of guilt even to a scientific
   or mathematical certainty does not alone
   suffice. (127)


Any other approach undermines the dignity and the integrity of the judicial process.

Thus, the Wilson approach should be modified to not focus on the strength of the prosecution's case, but to determine the extent to which the amnesia, when reliably established or conceded by the prosecution, impairs the defendant's right to a fair trial. Thus, courts should look at (1) whether the amnesia interferes with the ability of the accused to testify on his or her own behalf, (2) whether the amnesia interferes with the ability of the defendant to consult with counsel, and (3) the extent to which the incident and surrounding circumstances can be reconstructed through extrinsic evidence (including through mandated sharing of information held by the prosecution).

Two other issues should also be taken into account by courts presiding over these cases. First, the court should examine whether the evidence indicates that the amnesia is likely to be temporary or permanent in nature. The determination should not be made, as some courts have done, to refuse to issue a finding of IST for defendants with permanent amnesia because it may not be possible to bring such defendants to trial under Jackson. Such defendants retain their right to be CST even though ultimately they should be afforded the same right that is given to all defendants under Jackson who are found to be permanently IST, namely, that they not languish indefinitely in the custody of the state when restoration of competency is not reasonably to be expected. (128) When the loss of memory appears to be temporary, however, the state should be entitled to maintain custody of the defendant for a reasonable period of time so that reasonable efforts can be made to restore competency.

Second, the functional, case-by-case approach should examine whether any affirmative defenses or mitigation claims are likely to be relevant in the case under consideration. When a defendant reasonably could be expected to make an affirmative representation on his or her own behalf, a more proactive role by the defendant may be required and the mere ability to testify and consult with an attorney may not suffice. If an affirmative defense or mitigation claim is likely and the amnesia is established to be genuine, the court should determine whether the amnesia is likely to impose a significant impediment to the defendant's ability to pursue the affirmative defense or mitigation claim. If so, this may provide an additional basis for finding a defendant IST.

VIII. Conclusion

Courts should continue to treat amnesia claims skeptically, but should not discount them altogether. Although many--perhaps most--claims of amnesia are not genuine, improved understanding of amnesia and more reliable techniques to detect malingering mean amnesia claims pose less of a practical problem for courts and permit a more nuanced judicial response. Just as experts "can and should do more than just interview the defendant," (129) courts should do more than simply dismiss these claims. Practical difficulties associated with distinguishing genuine from malingered cases of amnesia will continue to challenge the courts, but competence to stand trial is such a fundamental predicate of the right to a fair trial that justice demands that claims of amnesia be heard and evaluated based on an individualized, functional analysis of the impact of any established amnesia on the defendant's competence to stand trial.

* This article represents the first author's continuing work on this subject, with an earlier version of this article published as James E. Tysse, The Right to an "Imperfect" Trial--Amnesia, Malingering, and Competency to Stand Trial, 32 WM. MITCHELL L. REV. 353 (2005).

(1) See GARY B. MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS 124 (2d ed. 1999).

(2) See, e.g., United States v. Stevens, 461 F.2d 317, 320 (7th Cir. 1972).

(3) Ronald Roesch & Stephen L. Golding, Amnesia and Competency to Stand Trial: A Review of Legal and Clinical Issues, 4 BEHAV. SCI. & L. 87, 87 (1986).

(4) See MELTON ET AL., supra note 1, at 124. See also S.D. Parwatikar et al., The Detection of Malingered Amnesia in Accused Murderers, 13 BULL. AM. ACAD. PSYCHIATRY & L. 97, 102 (1985).

(5) Maaike Cima et al., I Can't Remember Your Honor: Offenders Who Claim Amnesia, 5 GERMAN J. PSYCHIATRY 24, 25 (2002) (finding that "[a]s a rule of thumb, 20 to 30% of offenders of violent crimes claim amnesia for their crime"). See also Roesch & Golding, supra note 3, at 93 (noting researchers have found "evidence that the incidence of claimed amnesia is higher when the charges are more serious, such as homicide").

(6) Maaike Cima et al., Claims of Crime-related Amnesia in Forensic Patients, 27 INT'L J. L. & PSYCHIATRY 215, 215 (2004). See also Cima et al., supra note 5, at 24; Parwatikar et al., supra note 4, at 97.

(7) Cima et al., supra note 5, at 25 (including cases involving sexual offenses, domestic violence, and fraud). Although these researchers assert that claims of amnesia "regularly occur" with other types of crimes, the vast majority of reported cases and literature deal with amnesia in the violent crime context. See id.

(8) See Cima et al., supra note 6, at 216; Cima et al., supra note 5, at 27.

(9) See Cima et al., supra note 5, at 26-32.

(10) See Marko Jelicic et al., Symptom Validity Testing of Feigned Crime-Related Amnesia: A Simulation Study, 5 J. CREDIBILITY ASSESSMENT & WITNESS PSYCHOL. 1, 7 (2004).

(11) See MELTON ET AL., supra note 1, at 124 (finding that the principle that amnesia alone is not a bar to competency "appears to be predicated primarily on judicial distrust of the authenticity of such claims"). See also Dennis Koson & Ames Robey, Amnesia and Competency to Stand Trial, 130 AM. J. PSYCHIATRY 588, 588 (1973) (noting that while "[t]here is ample authority to the effect that competency to stand trial generally includes the faculty of memory," courts have not consistently reasoned this way because then "any amnesic defendant would have to found incompetent").

(12) AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: FOURTH EDITION, TEXT REVISION 172 (2000); Elizabeth W. Rubinsky & Jason Brandt, Amnesia and Criminal Law: A Clinical Overview, 4 BEHAV. SCI. & L. 27, 33 (1986). Anterograde amnesia can form the basis for a finding of IST, but is not the type of amnestic claim generally made by criminal defendants and thus will not be the focus of this article.

(13) MELTON ET AL., supra note 1, at 52.

(14) AMERICAN PSYCHIATRIC ASSOCIATION, supra note 12, at 172.

(15) Cima et al. , supra note 5, at 25.

(16) See Parwatikar et al., supra note 4, at 97 ("A significant number of murderers referred for pretrial psychiatric examination claim amnesia and attribute it either to alcohol, drug abuse, or an emotional difficulty in recalling the alleged crime.").

(17) See AMERICAN PSYCHIATRIC ASSOCIATION, supra note 12, at 520.

(18) See id. Less relevant here, the amnesia can also be manifested as a memory that cannot be retrieved in a verbal fashion. Id.

(19) Cima et al. , supra note 5, at 27.

(20) See id.

(21) Cima et al. , supra note 5, at 26. See also SvenAke Christianson & Susanna Bylin, Does Simulating Amnesia Mediate Genuine Forgetting for a Crime Event?, 13 APPLIED COGNITIVE PSYCHOL. 495, 495 (1999) (suggesting that, save for cases of genuine amnesia, the suspect ultimately is trying to avoid conviction by avoiding answering questions based on a claim of poor memory); Richard Rogers & J. L. Cavanaugh, Nothing But the Truth ... : A Re-examination of Malingering, 11 J. PSYCHIATRY & L. 443, 446 (1983) (arguing that offenders simulate amnesia out of a combination of "coping strategies, good judgment, and survival"); Roesch & Golding , supra note 3, at 93 (noting an additional motivation to feign amnesia when the death penalty is involved).

(22) Cima et al. , supra note 5, at 24-25 (describing a simulation study in which more than 70% of those studied found "highly plausible" an expert witness' testimony about an offender who developed complete amnesia for a crime involving drugs and high emotions). But see Roesch & Golding , supra note 3, at 93 ("[T]he courts and society in general view a defendant's claim of amnesia with great suspicion.").

(23) Cima et al. , supra note 5, at 26, 27 (noting that as many as 20% of closed head injury patients pursuing financial compensation have been found to exaggerate their symptoms).

(24) Id. at 26, 27-28. See also Cima et al., supra note 6, at 220 (noting also the higher incidence of claimed amnesia among suspects who have been arrested previously, and suggesting that "offenders who are familiar with the penal system have had more opportunities experiencing the advantages of claiming (partial) amnesia for their crime").

(25) See Robert D. Miller, People v. Palmer: Amnesia and Competency to Proceed Revisited, 31 J. PSYCHIATRY L. 165, 169 (2003) (citing studies).

(26) Christianson & Bylin, supra note 21, at 496 (citations omitted). But see Christianson & Bylin, supra note 21, at 496 (noting the correlation between genuine amnesia and crimes committed under emotional stress in combination with drug or alcohol abuse).

(27) Amnesia is also relevant to other aspects of criminal law besides competency to stand trial, such as sentencing, mitigation, and, perhaps most importantly, criminal responsibility. The relationship between criminal responsibility and amnesia is beyond the scope of the present article. Briefly, however, criminal responsibility looks back to the defendant's mental state at the time of the offense as part of a determination of the defendant's culpability, while competency to stand trial focuses on the defendant's current mental status as part of an examination of whether a lack of functional capability undercuts the defendant's ability to receive a fair trial. With regard to criminal responsibility, a claim of amnesia is most likely to be raised in conjunction with an automatism defense, where a defendant may assert that because of amnesia (typically anterograde amnesia) the defendant did not have the requisite control or knowledge of his or her behavior and thus should be found not guilty. See Rubinsky & Brandt, supra note 12, at 29-32.

(28) 391 F.2d 460 (D.C. Cir. 1968).

(29) Although courts in other jurisdictions may (and occasionally do) find the Wilson reasoning persuasive, as a decision of the District of Columbia Circuit of the United States Court of Appeals, it is not controlling outside that jurisdiction.

(30) See MELTON ET AL., supra note 1, at 124.

(31) Pate v. Robinson, 383 U.S. 372 (1966).

(32) See Kim Cocklin, Amnesia: The Forgotten Justification for Finding an Accused Incompetent to Stand Trial, 20 WASHBURN L.J. 289 (1980-81).

(33) 362 U.S. 402, 402 (1960).

(34) 420 U.S. 162, 171 (1975).

(35) See, e.g., COLO. REV. STAT. ANN. [section] 16-8-102(3) (West 2006) ("incapable of understanding the nature and course of the proceedings against him or of participating or assisting in his defense or cooperating with his defense counsel"); VA. CODE ANN. [section] 19.2-169.1(A) (West 2006) ("lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense").

(36) It is difficult to argue that retrograde amnesia interferes with a defendant's present ability to understand the proceedings because the amnesia is only for the period of the crime, not the current trial. Although severe anterograde amnesia may render a defendant presently unable to understand the proceedings because it results in an inability to form new memories, the few cases where such claims have been made have not been responsive to this assertion. See, e.g., United States v. Villegas, 899 F.2d 1324, 1341 (2d Cir. 1990); United States v. Barreto, 57 M.J. 127 (C.A.A.F. 2002).

(37) Cocklin, supra note 32, at 301; Abraham L. Halpern, Use and Misuse of Psychiatric Competency Examinations on Criminal Defendants, 5 PSYCHIATRIC ANNALS 123, 141 (1975); Miller, supra note 25, at 177; Rubinsky & Brandt, supra note 12, at 29. See also Stephen J. Morse, Why Amnesia and the Law Is Not a Useful Topic, 4 BEHAV. SCI. & LAW 99, 99-100 (1986) ("[T]the incompetence to stand trial criteria can, as a normative matter, be interpreted narrowly or broadly.... A broader interpretation would find such a defendant incompetent because it is surely arguable that a defendant who does not remember the crucial events has substantially impaired ability to assist his counsel in preparing an adequate defense.").

(38) 362 U.S. at 402 (quoting the Solicitor General) (emphasis added).

(39) Christopher Slobogin, Estelle v. Smith: The Constitutional Contours of the Forensic Evaluation, 31 EMORY L.J. 71, 81 n.45 (1982).

(40) Fajeriak v. State, 520 P.2d 795, 801 (Alaska 1974) (addressing a defendant's disruption of memory alleged to have been caused by head injuries). See also Youtsey v. United States, 97 F. 937, 940 (6th Cir. 1899) (holding that a "sound memory" is a prerequisite to competency); Wieter v. Settle, 193 F. Supp. 318, 322 (W.D. Mo. 1961) (noting that the defendant must have the capacity "to tell his lawyer the circumstances, to the best of his mental ability, (whether colored or not by mental aberration) the facts surrounding him at the time and place where the law violation is alleged to have been committed)"; People v. Angelillo, 432 N.Y.S.2d 127, 131 (Suffolk County Ct. 1980) (stating that one of the competency factors is "whether [the defendant] has some recollection of the events involved in the crime").

(41) Commonwealth ex rel. Cummins v. Price, 421 Pa. 396, 407 (1966) (Cohen, J., dissenting) (adding that the majority's refusal in this case to grant a continuance to see if the defendant's temporary amnesia had abated "completely prevents the presentation of any defense which would dispel the conclusions arrived at from the circumstances").

(42) United States v. Sermon, 228 F. Supp. 972, 977 (D. Mo. 1964).

(43) Id. at 978 (internal quotation marks omitted) ( quoting Lyles v. United States, 254 F.2d 725, 72930 (D.C. Cir. 1957)). But note that despite the broad language, the court in Sermon ultimately found the defendant competent to stand trial after a review of all the circumstances. Id. at 981-84.

(44) Comment, Criminal Law--Ability to Stand Trial--Amnesia, 52 IOWA L. REV. 339, 341-42 (1966).

(45) United States v. Chisolm, 149 F. 284, 287 (S.D. Ala. 1906).

(46) Roesch & Golding , supra note 3, at 95.

(47) Koson & Robey, supra note 11, at 588.

(48) See Roesch & Golding , supra note 3, at 92 (recognizing that despite circumstances where a defendant's amnesia should arguably lead to a finding of incompetency, "[m]ost courts have used a strict interpretation of Dusky").

(49) See, e.g., United States v. Sullivan, 406 F.2d 180, 185-86 (2d Cir. 1969) ("If in fact he had developed an amnesia preventing his recollection of the events of the day in question, this would not in itself be a complete defense to the charges.... [The defendant] was capable of understanding the charges and assist [sic] in the conduct of the trial."). See Parwatikar et al., supra note 4, at 102; Rubinsky & Brandt, supra note 12, at 29 ("[there remains] no appellate decision [where] amnesia, in and of itself, renders a defendant incompetent to stand trial"); Case Note, Capacity to Stand Trial: The Amnesic Criminal Defendant, 27 MD. L. REV. 182, 188 (1967) (concluding that no American or English court has found a defendant to be incompetent on the sole basis of amnesia); Miller, supra note 25, at 168-69 & n.9 (citing cases from nearly every circuit and state holding that amnesia per se will not render a defendant incompetent to stand trial).

(50) 362 U.S. 402, 402 (1960) (emphasis added).

(51) See Slobogin, supra note 39, at 81.

(52) See Halpern, supra note 37, at 141.

(53) See Donald H. J. Hermann, Criminal Defenses and Pleas in Mitigation Based on Amnesia, 4 BEHAV. SCI. & L. 5, 21 (1986); MELTON ET AL., supra note 1, at 124 (remarking on the sensitivity courts have shown "to the threat amnesia poses to accurate adjudication" while noting that "courts have been unanimous in refusing to equate amnesia with incompetency").

(54) See Hermann, supra note 53, at 21.

(55) United States ex rel. Parson v. Anderson, 354 F. Supp. 1060, 1071 (D. Del. 1972) (citations omitted).

(56) See Reagon v. State, 251 N.E.2d 829, 831 (Ind. 1970) ("Many times ... evidence is lost, a material witness dies, or, as in this case, the defendant has amnesia as to certain events or a time."); United States ex rel. Parson, 354 F. Supp. at 1072 ("extrinsic evidence far more valuable to the defense than the defendant's own testimony may be lost by reason of death, destruction or other fortuity prior to trial"). See also Comment, Amnesia: A Case Study in the Limits of Particular Justice, 71 YALE L.J. 109, 136 (1961).

(57) See Morrow v. Maryland, 443 A.2d 108, 113 (1982); United States ex rel. Parson, 354 F. Supp. at 1072 ("the memory of any defendant "fades" to some degree. The innocent defendant who is arrested several months after the alleged crime and cannot recall where he was on the night in question is not in a dissimilar circumstance").

(58) Case Note, supra note 49, at 188. Other rationales noted include "a feeling (especially in cases of alleged alcoholic or hysterical amnesia) that the defendant has only himself to blame for his loss of memory; and ... the judicial apprehension that to hold that amnesia protects the defendant from trial "would be tantamount to a holding that amnesia negated criminal responsibility as an original proposition."). Id. (footnotes omitted).

(59) Reagon v. State, 251 N.E.2d 829, 831 (Ind. 1970) ("[S]uch handicaps ... cannot prevent a trial from taking place eventually. Rarely would we find a case in which a defendant could not contend that he was deprived of some evidence and therefore he ought not to be tried"). See also Comment, supra note 56, at 136.

(60) See United States ex rel . Parson, 354 F. Supp. at 1072 ("Most importantly, we know that the defendant's recollection is only one of many sources of evidence which may permit the reconstruction of a past event.").

(61) See United States v. Borum, 464 F.2d 896, 900 n.3 (10th Cir. 1972) (joking that "[u]ndoubtedly there are instances in which defense counsel may wish that their clients would have amnesia"). See also Roesch & Golding , supra note 3, at 95 (noting that "at least one court has held that amnesia does not even entitle a defendant to an evaluation of competency") ( citing Kirby v. Texas , 668 S.W.2d 448 (Tex. 1984)).

(62) Rubinsky & Brandt, supra note 12, at 32.

(63) Id. at 33.

(64) See, e.g., Loyd v. Smith, 899 F.2d 1416, 1419 (5th Cir. 1990) (recognizing defendant as incompetent after his doctors "found that [his] depression rendered him unable to understand the charges and proceedings against him and that he could not effectively participate or assist in his defense").

(65) See Miller, supra note 25, at 177.

(66) See, e.g., United States v. Sermon , 228 F. Supp. 972, 976 (D. Mo. 1964); State v. McClendon, 419 P.2d 69, 72 (Ariz. 1966). See Rubinsky & Brandt, supra note 12, at 29.

(67) 391 F.2d 460, 463 (D.C. Cir. 1968).

(68) Id. at 461.

(69) Id.

(70) Id.

(71) Id. at 463-64.

(72) Id. (citations omitted).

(73) See, e.g., Koson & Robey, supra note 11, at 591.

(74) See, e.g., United States v. Villegas, 899 F.2d 1324, 1341 (2d Cir. 1990); United States v. Swanson, 572 F.2d 523, 526 (5th Cir. 1978); Aldridge v. State, 247 Ga. 142 (Ga. 1980).

(75) Miller, supra note 25, at 168-69. Miller argues that one appellate court's conclusion that a majority of courts had adopted the Wilson court's multifactor approach was "simply incorrect." Id.

(76) Roesch & Golding , supra note 3, at 92.

(77) 406 U.S. 715 (1972).

(78) Roesch & Golding , supra note 3, at 92, 96.

(79) John M. W. Bradford & Selwyn M. Smith, Amnesia and Homicide: The Padola Case and a Study of Thirty Cases, 7 BULL. AM. ACAD. PSYCHIATRY & L. 219, 230 (1979).

(80) Commonwealth ex rel. Cummins v. Price, 218 A.2d 758, 763 (Pa. 1966).

(81) See, e.g., Haruo Kashima et al., Current Trends in Cognitive Rehabilitation for Memory Disorders, 48 KEIO J. MED. 79 (1999); David F. Rose et al., Virtual Reality in Brain Damage Rehabilitation: Review, 8 CYBERPSYCHOLOGY & BEHAV. 241 (2005).

(82) See Wilson, 391 F.2d at 467 (Fahy, J., dissenting).

(83) See State v. McClendon, 437 P.2d 421, 423 (Ariz. 1966).

(84) Koson & Robey, supra note 11, at 588.

(85) See MELTON ET AL., supra note 1, at 52.

(86) See Miller, supra note 25, at 169; Parwatikar et al., supra note 4, at 97; Stephen Porter et al., Memory for Murder: A Psychological Perspective on Dissociative Amnesia in Legal Contexts, 24 INT'L J. L. & PSYCHIATRY 23, 25-26; Rubinsky & Brandt, supra note 12, at 32.

(87) See McClendon, 437 P.2d at 424 ("The concern of the courts in this area is the very real danger that amnesia can be feigned easily and that discovery and proof of feigning and malingering is difficult, especially when the defendant refuses to take the stand."); Comment, supra note 56, at 123, 124-25 ("[A]n attempt to verify all but the most patently phony claims of amnesia is at best a difficult and time-consuming task; at worst it is a hopeless one."); Rubinsky & Brandt, supra note 12, at 42 (arguing that part of the reluctance of courts to believe amnesia claims may be based on the lack of reliable procedures for discriminating between real and malingered amnesia).

(88) Fajeriak v. State, 520 P.2d 795, 802 (Alaska 1974). See also State v. Pugh, 283 A.2d 537, 542 (N.J. Super. Ct. App. Div. 1971); McClendon, 437 P.2d at 425.

(89) Cima et al., supra note 5, at 27 ("For the expert witness, it is very difficult to differentiate between dissociative, organic or feigned amnesia on the basis of interviews with the defendant. This has to do with the fact that simulators can give a compelling imitation of someone with a dissociative or organic amnesia.... Nevertheless, our impression is that mental health professionals acting as experts in cases of amnesia often use interviews with the defendant as the sole source for making their diagnostic judgments.").

(90) See Comment, supra note 44, at 342; Parwatikar et al., supra note 4, at 97, 102 ("If a method to detect malingered amnesia was developed, the legal policy concerning it could be changed to benefit those with true amnesia.").

(91) See Cima et al. , supra note 5, at 29 ("organic amnesia requires the specific sequence of trauma, loss of consciousness, [Post Traumatic Amnesia], memory loss relating to recent rather than old memories, and memory recovery in such a way that older memories come back more readily than more recent ones").

(92) Id. Although this article does not focus on the potential relevance of amnesia to issues of criminal responsibility, the presence of symptoms conforming to Ribot's Law could be used by a defendant to argue that the defendant acted in self-defense following a traumatic brain injury induced by the purported victim. Id.

(93) Id. Although far more controversial and less frequent, for claimed organic amnesia based on extreme intoxication ("alcohol blackout"), the claimed amnesia may be conceded by the prosecution following supporting blood alcohol or toxicology tests. See id. at 28.

(94) 391 F.2d 460, 466 (D.C. Cir. 1968).

(95) See, e.g., State v. McLendon , 437 P.2d 421, 422 (Ariz. 1968).

(96) See Cima et al., supra note 5, at 27-28 (discussing three reasons to suspect claims of dissociative amnesia, namely, that those who make such claims tend to fit a psychological profile, including a tendency to engage in manipulative behavior; the absence of dissociation in individuals not charged with crimes but who have experienced or witnessed similarly horrifying or violent events; and research that shows that a substantial proportion of individuals in general tends to feign symptoms and confabulate stories if it serves their interests).

(97) Id. at 27.

(98) Id.

(99) Comment, supra note 56, at 123.

(100) Cima et al. , supra note 5, at 27.

(101) Id.

(102) Id.

(103) Id. at 31.

(104) See, e.g., Miller, supra note 25, at 169-72 (citing various studies).

(105) Steven P. Cercy et al., Simulated Amnesia and the Pseudo-memory Phenomenon, in CLINICAL ASSESSMENT OF MALINGERING AND DECEPTION (Richard Rogers ed., 1997).

(106) See Cima et al. , supra note 5, at 29-32.

(107) See id.

(108) Id. at 29-30.

(109) Id. at 30.

(110) See id.

(111) Id. at 30-31.

(112) Id. at 31.

(113) Id.

(114) Id.

(115) Id.

(116) Id.

(117) For an overview of these studies, see Miller, supra note 25, at 172-76.

(118) Id. at 172.

(119) Id. at 173-74.

(120) Roesch & Golding , supra note 3, at 94.

(121) Id. (emphasis in the original).

(122) McKenzie v. Risley, 842 F.2d 1525, 1550 (9th Cir. 1988) (citing Delaware v. Van Arsdall, 175 U.S. 673 (1986)). See also State v. McClendon, 437 P.2d 421, 425 (Ariz. 1968); People v. Amador, 246 Cal. Rptr. 605 (Ct. App. 1988); People v. Palmer, 31 P.3d 863, 870 (Colo. 2001).

(123) See Roesch & Golding, supra note 3, at 96 (describing the Wilson case and others as employing "the kind of functional, case by case assessment which we have proposed be used in all determinations of competency"); see also Patricia A. Zapf & Ronald Roesch, Mental Competency Evaluations: Guidelines for Judges and Attorneys, 37 CT. REV. 28, 31-34 (2000).

(124) 391 F.2d 460 (D.C. Cir. 1968).

(125) See Roesch & Golding, supra note 3, at 95-96.

(126) Id. at 465-66 (Leventhal, J., concurring). See also United States v. Sullivan, 406 F.2d 180, 187 (2d Cir. 1969) (implying that a court's treatment of the amnesic defendant will turn, in part, on the sufficiency of the evidence presented).

(127) 391 F.2d at 466-67 (Fahy, J., dissenting).

(128) See Parwatikar et al., supra note 4, at 102-03 (noting that even if the defendant is able to convince the court that amnesia is genuine, it may be "a Pyrrhic victory for the true amnesiac, unless such matters as automatic commitment to a state hospital and the dismissal of charges against the 'permanently incompetent' are resolved").

(129) See Cima et al., supra note 5, at 31.

James E. Tysse, Law Clerk to Judge Beverly B. Martin, United States District Court, Northern District of Georgia (2006-07); J.D., University of Virginia School of Law, 2006. Please address correspondence to james_tysse@gand.uscourts.gov or jtysse@hotmail.com.

Thomas L. Hafemeister, J.D., Ph.D.; Associate Professor of Law, University of Virginia School of Law; Director of Legal Studies, Institute of Law, Psychiatry and Public Policy.
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