Amnesia, however, is, by itself, generally “a relatively neutral circumstance in its bearing on criminal responsibility.” United States v. Olvera, 15 C.M.R. 134 (C.M.A. 1954); see generally United States v. Boultinghouse, 29 C.M.R. 537 (C.M.A. 1960); United States v. Buran, 23 M.J. 736 (A.F.C.M.R. 1986); United States v. Barreto, 57 M.J. 127 (C.A.A.F. 2002).
When Amnesia May be a Defense
Military offenses requiring knowledge of accused’s status as a service person.
An accused cannot be convicted of AWOL if he was temporarily without knowledge that he was in the military during the period of his alleged absence. See United States v. Wiseman, 30 C.M.R. 724 (N.B.R. 1961).
Drug/alcohol induced amnesia
Lack of memory or amnesia resulting from drugs or alcohol has never constituted a complete defense. United States v. Luebs, 43 C.M.R. 315 (C.M.A. 1971); United States v. Butler, 43 C.M.R. 87 (C.M.A. 1971); United States v. Day, 33 C.M.R. 398 (C.M.A. 1963).
In United States v. Lopez-Malave, 15 C.M.R. 341 (C.M.A. 1954), the Court held that drug or alcohol induced amnesia in and of itself does not constitute a mental disease or defect which will excuse criminal conduct under the defense of lack of mental responsibility.
Under earlier law, in order to require an insanity instruction, the evidence must show that a defendant’s alcoholism constitutes a mental disease or defect so as to impair substantially his capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. United States v. Brown, 50 C.M.R. 374 (N.C.M.R. 1975); United States v. Marriott, 15 C.M.R. 390 (C.M.A. 1954). With the passage of UCMJ art. 50a, the standard for lack of mental responsibility is now complete impairment. For a complete discussion of Article 50a, see Chapter 6, infra
Amnesia as Affecting Accused’s Competency to Stand Trial
Generally, a defendant is not incompetent to stand trial simply because he is suffering from amnesia. The appropriate test when amnesia is found is whether an accused can receive, or has received, a fair trial. The test, as stated in Dusky v. United States, 362 U.S. 402 (1960), is “whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding–and whether he has a rational as well as factual understanding of the proceedings against him.”
Where the amnesia appears to be temporary, an appropriate solution might be to defer trial for a reasonable period to see if the accused’s memory improves.
In Commonwealth v. Lombardi, 393 N.E.2d 346 (Mass. 1979), the Court held that where the amnesia is apparently permanent, the fairness of proceeding to trial must be assessed on the basis of the particular circumstances of the case. A variety of factors may be significant in determining whether the trial shall proceed, including:
- the nature of the crime,
- the extent to which the prosecution makes a full disclosure of its case and circumstances known to it,
- the degree to which the evidence establishes the accused’s guilt,
- the likelihood that an alibi or some defense could be established but for the amnesia,
- the extent and effect of the defendant’s amnesia
A pretrial determination of whether the defendant’s amnesia will deny him a fair trial is not always possible. In such a case, the trial judge may make a determination of fairness after trial with appropriate findings of fact and rulings concerning the relevant criteria.
In United States v. Luebs, 43 C.M.R. 315 (C.M.A. 1971); the Court held that an accused who fails to recall the factual basis of the offenses but is satisfied from the evidence that he is guilty may plead guilty. See also United States v. Butler, 43 C.M.R. 87 (C.M.A. 1971).
Automatism and Unconsciousness
While courts have concluded that seizures attendant to epilepsy provide a basis for a defense, other types of unconsciousness or automatism have been rejected as bases for a defense. In United States v. Rooks, 29 M.J. 291 (C.M.A. 1989), the Court held that seizures attendant to epilepsy may render the accused unable to form the mens rea required for assault. On the other hand, in United States v. Campos, 37 M.J. 894 (A.C.M.R. 1993), aff’d, 42 M.J. 253 (C.A.A.F. 1995), the Court found that evidence was sufficient to convict the defendant of offenses of willfully disobeying and assaulting an NCO, despite the defendant’s contention that he lacked required mens rea due to automatic and uncontrollable behavior brought on by claustrophobia.
In United States v. Axelson, 65 M.J. 501 (Army Ct. Crim. App. 2007), the Court concluded that the defendant’s plea to aggravated assault was knowing and no additional instructions on defenses were required because aggravated assault is a general intent crime to which partial mental responsibility is not a defense. In addition, automatism is not a defense under R.C.M. 916 or other case law.
Due Process Fair Warning
In United States v. Lanier, 117 S.Ct. 1219 (1997), the Court determined that the benchmark of the fair warning requirement is whether the statute made it reasonably clear at the relevant time that defendant’s conduct was criminal.
In United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997), the Court found that the defendant was not subjected to selective or vindictive prosecution in regard to handling or adultery allegations, though charges were not preferred against two others alleged to have committed adultery, where charges were preferred against the defendant only after he violated a “no-contact” order.
In United States v. Hardy, 46 M.J. 67 (C.A.A.F. 1997), because there is no right to jury nullification, the Court did not err either in declining to give a nullification instruction or in declining to otherwise instruct the members that they had the power to nullify his instructions on matters of law.
In United States v. Webster, 65 M.J. 936 (A. Ct. Crim. App. 2008), the defendant pled guilty to missing movement to Iraq by design and disobeying orders. The defendant had converted to Islam in 1994 and had doubts about whether he should participate in a war against Muslims. During the guilty plea inquiry, the military judge ruled that his religious beliefs would not provide a defense to disobeying orders. The Court first held that the defendant’s guilty plea was knowing, voluntary, and provident. Under AR 600-43, conscientious objector requests made after an individual has entered active duty will not be favorably considered when the objection is to a certain war, which was the case here. In addition, the defendant “had no legal right or privilege under the First Amendment to refuse obedience to the orders, and the orders were not given for an illegal purpose.”