The Legal Side-Effects of Amnesia

Characters in comics frequently come down with amnesia, whether induced by superheroes, supervillains, or more pedestrian causes.  This post considers one legal side-effect of amnesia: loss of competency to stand trial.

We’ve talked about supervillains and competency before in the context of the mental illnesses that many supervillains (and even some superheroes) arguably suffer from.  But what about amnesia?  If a telepathic superhero (e.g. Professor X, Psylocke) erases a supervillain’s memories in order to stop an attack or prevent future crimes, could that interfere with the government’s ability to try the supervillain for the crimes he or she already committed?  Or if a superhero’s memories are erased by a supervillain, leading the superhero to commit crimes, could the superhero argue incompetency to stand trial for those crimes?  In some jurisdictions, the answer may be yes.

I. Competency and Due Process

In the US, competency is part of the constitutional right to due process.  “It has long been accepted 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.”  Drope v. Missouri, 420 U.S. 162, 171 (1975).  The Court noted that “the prohibition is fundamental to an adversary system of justice.”  Drope, 420 U.S. at 172.  In other words, in an adversarial system it’s simply not fair to pit the entire weight of the state against an incompetent defendant.

II. Amnesia and Competency

So then, does amnesia—specifically, amnesia regarding the alleged crime—render a defendant incompetent to stand trial?  The general rule is that it does not.  “[T]here is no record of any court holding a defendant incompetent to stand trial solely on the basis of amnesia.”  Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961) (emphasis added).  Courts are reluctant to allow a defense of amnesia because it can be faked and because it is often de-coupled from an ongoing mental illness or defect, which means the amnesiac may be clearly competent in many ways.

However, while no courts have adopted a bright line rule that amnesia necessarily implies incompetence, several courts have allowed amnesia to be considered in the usual competency analysis.  See, e.g., Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3d Cir. 1973); Morris v. State, 301 S.W.2d 381 (Tex. Crim. App. 2009).  Severe amnesia—to the point of interfering with a defendant’s ability to consult with and assist his or her lawyer—may lead to a finding of incompetency.

The Wilson court went one step further and gave a list of six factors a trial court should use at the post-trial stage in considering whether a defendant’s amnesia has affected the fairness of the 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 in view of the defendant’s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.

(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.

In general, the worse the amnesia and the weaker the external evidence—including the government’s case—the more likely that the trial will be found to violate due process.  However, the D.C. Circuit is essentially alone among jurisdictions in taking this approach, which has been explicitly rejected by many other courts.  See, e.g., State v. Peabody, 611 A.2d 826 (R.I. 1992).

III. The Wilson Test In Practice

So let’s apply this to a few examples. For starters, in X-Men #3 from 1963, Professor X winds up erasing the Blob‘s memory of the X-Men and his attack on them. But the Blob only winds up losing a few hours of memory, maybe a day at the worst. So while he wouldn’t be able to testify about what he did, if the state decided to press charges for something he did during his rampage, he’d probably wind up passing a competency hearing.  His amnesia is not so severe that he has forgotten who he is or why he might have been motivated to do what he did.  Further, there’s enough extrinsic evidence that it’s unlikely that any of his defenses would require him to testify from memory.  Courts routinely reject this kind of short-term amnesia as an impediment to competence in cases where defendants have forgotten the crime itself because of substance abuse (e.g. blacking out after a bar fight) or trauma.

But what about Magneto in Defenders # 15-16? Magneto is regressed to infancy by Alpha. That right there raises significant competency questions, not only to do with memory, but rationality and maturity. Again, proving Magneto’s mental state could be tricky, but the fact that he does not remember anything about what happened before his encounter with Alpha should not be hard to establish. Here, the fact that Magneto possessed essentially no record of his prior life should produce a very different outcome from the Blob’s case above, as the “old” Magneto could have presumably raised affirmative defenses—such as necessity—for his actions, while the new one cannot even understand why he would have done the things of which he is accused, something the Blob probably would be able to do.

IV. Conclusion

Superheroes should think twice about erasing a villain’s memories.  While it may be an effective way to stop a villain in his or her tracks, it may also render them incompetent to stand trial.  In general, the worse the amnesia, the more likely the defendant is to be found incompetent, so go easy on the mind wipes, guys.