Memory, identity, and responsibility

joefromchicago wrote:

cavfancier wrote:
If the premeditated murder preceded the amnesia, as stated, then he is still liable for the crime, and the amnesia defence is nothing but a legal smokescreen.

What if he had committed murder while sleepwalking? Isn't Felon in roughly the same situation? He has committed the crime while in one state of consciousness, but he is on trial while in a different state of consciousness. Aren't you setting up a standard where the punishment is inflicted on the body of the perpetrator, regardless of his state of mind?

You didn't mention sleepwalking in the example. I disagree with your supposition that the situations presented here are similar. Your original post clearly stated that the murder was premeditated, indicating a conscious act. It was only at trial, apparently, that the amnesia question came into play. IF a qualified doctor's evaluation deemed Felon incapable of understanding his crime, and therefore unfit to stand trial, I would suggest a psychiatric hospital, not jail.

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Hmmm... Isn't one of the prerequistes for bringing someone to trial that they have the mental capacity to particpate in their own defense?

It seems to me that if there is no doubt that the amnesia is 100% then he wouldn't have any knowledge of the acts and wouldn't be able to work with an atty. in his own defense.

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I am taking into account that some of these 'experts' could be wrong.

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Mr. Felon is the same person he was when he committed the crime. By losing his memory - only his MEMORY has changed. Do we absolve him of everything he has done just because he now cannot remember? Yes there is change but isn't he still essentially the same person he was before the memory loss? Granted, if I were on a jury and I were looking at a person who had done such a thing I would be inclined to jail them to prevent future occurrences. But how secure am I that John Q. would not be as likely to commit further crimes as another who has not lost their memory? I am not convinced that John Q. would never do this again.

I would jail John Q. for the crime he has committed. I do not believe it was a stranger just because he cannot remember the incident or anything that led up to it.

As for incarcerating guilty parties - that is our law - I am not a huge believer in it being a great solution but cannot think of a better punishment to take its place.

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How about if a murder is committed during a drug-induced frenzy with the murderer having no memory of the event or the lead-up to it? Should that person be excused because they cannot remember anything and cannot assist in their defense? Joe, you mentioned a sleep-walker above too. Those two scenarios reflect impaired or unconscious brain activity DURING the murder. Mr. Felons situation differs in that he deliberately (and presumably in a sane state of mind) killed someone. It is his later memory-lapsed state that would confuse a jury as to feel pity, or belief that this is not the same person.

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cavfancier wrote:

If the premeditated murder preceded the amnesia, as stated, then he is still liable for the crime, and the amnesia defence is nothing but a legal smokescreen.

However, for the sake of this exercise, it is NOT a legal smokescreen - it is established truth!

This is a fun thing I love to speculate about - are we the same person without memories?

Interestingly, some people with quite advanced dementia - and hence almost no memories at all, maintain a strong resemblance to their previous personality - gracious, hoity-toity, grande-dame etc.

A somewhat similar question was raised by a client I had a few years ago, who had suffered a brain tumour as a little fella which, though successfully removed, left him almost blind, and which caused an early puberty. At 12, this young man looked and felt more like 19 or 20. Many of his friends were that age - he had a 17 year old girlfriend - but his parents felt huge dilemmas with all of this about whether they should treat him as a little kid, or a young adult. So - what was he?

Anyway - our amnesiac.

Presumably, when he committed the crime, there was mens rea. Does this still exist?

Well - had he already been imprisoned, and suffered the amnesia several years into his sentence, I don't think he would have been freed.

I think the amnesia would be unlikely to be seen as an adequate defence - that, for the purposes of the law, he could be seen as the same person - and hence stand trial.

The jury, of course, could do whatever it wished re convicting him!

I know of a man who suffered terrible nightmares, which over time became clearer, and resolved into a clear dream of cutting a friend's head off - initially, it was of a bouncing ball, which for some reason terrified him.

Eventually, the image became so clear - and the friend, whom he now remembered, though he had not for some years, had, indeed, disappeared - that he went to the police saying he feared he might have committed a murder. He was able, with the police, to find the house which the friend had lived in, and the memories re-emerged clearly when he was in the back garden. He took the police to where the body and head were buried - there had been some sort of terrible drunken fight.

The fella was convicted of murder.

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Yikes!

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Lol! Odd story, no? he was a friend's client. She went with him to the police. He was a teenager when he did it - horrid background - all that.

He had pulled himself out of all that - but wanted to deal wth the possibility that he had done something awful.

All this was taken into account re parole....

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cavfancier wrote:

You didn't mention sleepwalking in the example.

True. I'm merely exploring the contours of this scenario by means of an analogy.

cavfancier wrote:

I disagree with your supposition that the situations presented here are similar. Your original post clearly stated that the murder was premeditated, indicating a conscious act.

Indeed, it was not only premeditated, it was heinous as well. Furthermore, there is no question but that Felon acted with the requisite intent when he committed the act.

cavfancier wrote:

It was only at trial, apparently, that the amnesia question came into play. IF a qualified doctor's evaluation deemed Felon incapable of understanding his crime, and therefore unfit to stand trial, I would suggest a psychiatric hospital, not jail.

Before he was struck with amnesia he was sane, and after he was struck he was just as sane. He's not insane, he just can't remember anything.

cavfancier wrote:

I am taking into account that some of these 'experts' could be wrong.

In my hypothetical, I posited that there was unanimous agreement among the medical experts. Thus, even if some or all of them are "wrong," there would be no experts who would point out their error. In that respect, they would all be effectively "right" because there would be no one of sufficient expertise to contradict them.

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fishin' wrote:

Hmmm... Isn't one of the prerequistes for bringing someone to trial that they have the mental capacity to particpate in their own defense?

It seems to me that if there is no doubt that the amnesia is 100% then he wouldn't have any knowledge of the acts and wouldn't be able to work with an atty. in his own defense.

I believe that's a mental competency standard; as I mentioned above, Felon isn't insane, he just can't remember anything.

On the other hand, it's clear that Felon would not be able to testify as to what he was doing or where he was at the time of the crime. Indeed, he couldn't even testify as to who he was at the time. His testimony, a series of repeated "I can't remembers," would be positively Reaganesque.

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Heeven wrote:

Mr. Felon is the same person he was when he committed the crime. By losing his memory - only his MEMORY has changed. Do we absolve him of everything he has done just because he now cannot remember? Yes there is change but isn't he still essentially the same person he was before the memory loss?

That is yet to be determined.

Heeven wrote:

Granted, if I were on a jury and I were looking at a person who had done such a thing I would be inclined to jail them to prevent future occurrences. But how secure am I that John Q. would not be as likely to commit further crimes as another who has not lost their memory? I am not convinced that John Q. would never do this again.

If that were the only basis on which to convict Felon, then that would be sufficient to convict everyone who is capable of committing future crimes.

Heeven wrote:

I would jail John Q. for the crime he has committed. I do not believe it was a stranger just because he cannot remember the incident or anything that led up to it.

As for incarcerating guilty parties - that is our law - I am not a huge believer in it being a great solution but cannot think of a better punishment to take its place.

Then you're ok with Felon, sitting in jail, wondering what he did to deserve his punishment?

Heeven wrote:

How about if a murder is committed during a drug-induced frenzy with the murderer having no memory of the event or the lead-up to it? Should that person be excused because they cannot remember anything and cannot assist in their defense? Joe, you mentioned a sleep-walker above too. Those two scenarios reflect impaired or unconscious brain activity DURING the murder. Mr. Felons situation differs in that he deliberately (and presumably in a sane state of mind) killed someone. It is his later memory-lapsed state that would confuse a jury as to feel pity, or belief that this is not the same person.

First, society has made a decision to treat drug-induced, frenzied murderers by a sort of "transferred" intent standard: if the murderer intended to take the drugs, then he intended its consequences, including the possibility of committing crimes while in that state. On the other hand, if the murderer had been drugged unknowingly or against his will, it is likely that he would not be held responsible for acts that he committed while drugged.

Second, the somnambulist and the amnesiac are comparable, in that neither remembers what they had done. True, the somnambulist is in a significantly different state of consciousness at the time of the act, but there is a similarity as to their ability to recall the act afterwards.

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Given your scenario, I think the state must charge him. I doubt he can truthfully assert in his defence that he has "no knowledge of the crime." In reality, he has no recollection. This is different, yes? Presumably, he has the same knowledge of his guilt as the rest of us.

Additionally, since there is "no question" of his guilt, he should be convicted.

Sentencing is trickier. What are the details of the murder? Why did he do it? Has he done it before? Etc.

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joefromchicago wrote:

What purpose does it serve to punish Felon?

Look, I may be a liberal, but I was still raised in Texas...

How does JQF's current mental state absolve him from the crime (and punishment) he committed before he got amnesia?

Just because he doesn't remember what he did doesn't allow him to get over.

If he contracted cancer of the brain and suddenly went deaf and blind, he would still be tried for the murder.

I see no reason for him not to face the consequences of his actions.

joefromchicago wrote:

Then you're ok with Felon, sitting in jail, wondering what he did to deserve his punishment?

Why should he be wondering if he was shown the evidence and heard the eyewitness accounts and so forth?

Is his only defense "I cannot remember"? Pretty weak...

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Seeing as we are talking hypotheticals, is Felon's amnesia the result of a head injury incurred either before or after the crime committed, or was it just something that popped up mysteriously after the fact?

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Quote:

Then you're ok with Felon, sitting in jail, wondering what he did to deserve his punishment?

Yes, I am. I am not concerned about his wonderings. He killed a person, intentially. He should be punished and incarcerated for it.

Quote:

Heeven wrote:
Granted, if I were on a jury and I were looking at a person who had done such a thing I would be inclined to jail them to prevent future occurrences. But how secure am I that John Q. would not be as likely to commit further crimes as another who has not lost their memory? I am not convinced that John Q. would never do this again.

If that were the only basis on which to convict Felon, then that would be sufficient to convict everyone who is capable of committing future crimes

I am not using his future possible acts to convict. I am interested in conviction based upon what he already did. It is his previous action that would get a conviction from me. I might feel good that a conviction might possibly prevent future murders but that is not my main concern. My first thought was to convict based on the crime he already committed. I am not sympathetic to the fact that, since the crime, he has been in a state of confusion as a result of amnesia.

I am not interested in convicting people based solely on their potential future actions. I am concerned only with what they have actually done.

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PDiddie wrote:

Look, I may be a liberal, but I was still raised in Texas...

Your courage in the face of adversity is an example to us all.

PDiddie wrote:

How does JQF's current mental state absolve him from the crime (and punishment) he committed before he got amnesia?... I see no reason for him not to face the consequences of his actions.

Only if you view his pre-amnesia actions as his actions. As I mentioned before, the amnesiac Felon views his previous actions as he would those of a complete stranger. Under that circumstance, is it equitable to hold him responsible if he has no memory of the event, no knowledge of the crime, no genuine feeling of guilt, and no possibility of true remorse?

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cavfancier wrote:

Seeing as we are talking hypotheticals, is Felon's amnesia the result of a head injury incurred either before or after the crime committed, or was it just something that popped up mysteriously after the fact?

As I mentioned in my original post: "Before he is apprehended by the police, however, Felon is struck with a case of amnesia, such that he cannot remember any event, including the murder which he committed, prior to being so stricken." The sequence of events, therefore, is: crime --> amnesia --> arrest. The cause of the amnesia is, in my view, immaterial (if you think it has some bearing on this matter, then please explain). In any event, I'm sure if you asked John Q. Felon what caused his amnesia, he'd reply: "I can't remember."

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Heeven wrote:

Yes, I am. I am not concerned about his wonderings. He killed a person, intentially. He should be punished and incarcerated for it.
... I am not interested in convicting people based solely on their potential future actions. I am concerned only with what they have actually done.

Well, that raises the question: what is the purpose of punishment?

As I have outlined elsewhere, there are five permissible reasons for a state to punish a convicted criminal:

[u]Incarceration/Incapacitation[/u]: This means physically preventing a criminal from committing more crimes, either for a definite period or permanently. [u]Rehabilitation[/u]: This means making the criminal a better person, so that, ideally, he can be reintroduced into society. [u]Deterrence[/u]: This has a double meaning: deterrence of the person who committed the crime, and deterrence of others through the example of the criminal convicted. [u]Retribution[/u]: A somewhat more vague concept than the preceding three, this deals with the state's right, on behalf of its citizens, to exact some form of vengeance on the criminal, either as a means of demonstrating the value placed upon the law or the state's desire, in some fashion, to reflect the wishes of the victim. [u]Restitution[/u]: This usually involves direct monetary compensation to the victim in cases of property crimes, but may also involve some type of "exemplary" restitution to the community (such as community service).
Of these, we can quickly dispose of restitution (since murder is non-compensable).

Incarceration, rehabilitation, and deterrence depend upon a belief that the amnesiac Felon's pre-amnesia acts incline him to future bad acts. Yet if he has no memory of his previous actions, how can we assert that those actions are indicative of his future behavior?

We are thus left with retribution. But if the state is exacting retribution on Felon, is it targeting the right man? After all, the amnesiac Felon is a stranger to his previous self. Is it just to impose this kind of retributive punishment on someone who has no memory of his crime, no feeling of responsibility for his actions, and no true sense of contrition for the consequences?

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joefromchicago wrote:

cavfancier wrote:
Seeing as we are talking hypotheticals, is Felon's amnesia the result of a head injury incurred either before or after the crime committed, or was it just something that popped up mysteriously after the fact?

As I mentioned in my original post: "Before he is apprehended by the police, however, Felon is struck with a case of amnesia, such that he cannot remember any event, including the murder which he committed, prior to being so stricken." The sequence of events, therefore, is: crime --> amnesia --> arrest. The cause of the amnesia is, in my view, immaterial (if you think it has some bearing on this matter, then please explain). In any event, I'm sure if you asked John Q. Felon what caused his amnesia, he'd reply: "I can't remember."

So the amnesia did happen after the crime, and before the arrest. Okay. The cause of the amnesia could indeed influence the outcome of the trial, and might help the defence. Here is one example:

"A criminal case demonstrates how post-traumatic amnesia (PFA) from a head injury can have serious effects on a head-injured person's legal rights. In this recent murder case a man struck his head against a lamp during a barroom fight. A short time later he shot two assailants. When the police arrived, he made several statements that were later introduced at his trial. In those statements the defendant confessed to shooting one of the victims, but his statements were inconsistent in that he incorrectly named the victims and their race. The post trauma statements were at variance with other eyewitness testimony about how the crime occurred. The head-injured defendant attempted to provide evidence at trial from a neurologist and a neuropsychologist to show that his head injury was a mental illness as a result of which he was not criminally responsible for the murder. His statements after the crime were proposed as examples of how the head injury affected him. Yet it appears the statements were interpreted as a confession to the crime rather than a defense. The judge excluded the expert testimony of the neuropsychologist regarding the criminal responsibility issue, stating that evidence was insufficient to raise the insanity defense. An appellate court has reversed the lower court and has held that testimony of the neuropsychologist was wrongfully excluded because it had bearing on the issue of criminal responsibility. The case has been returned to the trial court for a new trial."

Now here, it is clear that the amnesia occured before the murders. For argument's sake, say the police gave him a beating on his head for resisting arrest, resulting in post traumatic amnesia. According the the example cited here, he would have a strong case for dismissal of the charges. However, if there was no trauma involved, and the amnesia came on after the crime, and before the arrest, I still think he should be held responsible. I don't see an ethical problem with locking this murderer up just because he claims he "can't remember." With proper psychotherapy, amnesiacs can be regressed, and they will indeed recover buried memories. That can be done in a prison hospital. As for a conviction based on an assumption of future acts of violence, I don't see how that plays into this at all. I don't accept that rehabilitation is necessarily based on a perception of future acts. I think most therapists would concede that the main issue is dealing with the problem at hand, not the weird future that only a magic crystal ball can predict.

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Joeblow wrote:

Given your scenario, I think the state must charge him. I doubt he can truthfully assert in his defence that he has "no knowledge of the crime."

According to my hypothetical, "Felon truthfully asserts that he has no knowledge of the crime." Furthermore, there is unanimous agreement among the medical experts that Felon has no memory of those events that preceded his amnesia.

Joeblow wrote:

In reality, he has no recollection. This is different, yes? Presumably, he has the same knowledge of his guilt as the rest of us.

That's true -- he has the exact same knowledge of his guilt as anyone else: i.e., apart from the testimony of those who witnessed the act, he has no direct knowledge of the events or of his guilt. In that respect, Felon is in the same position as a member of the jury: he only knows of the crime second-hand. Given that fact, is it fair to convict him?

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