Compared to Amnesia
Amnesia is not equivalent to a lack of capacity. “An inability to remember about thecrime itself does not necessarily make a person incompetent to stand trial.” Lee , 22 M.J. at 769; s ee also United States v. Barreto , 57 M.J. 127 (C.A.A.F. 2002). The ability of an accused to function is absolutely critical to the fairness of a criminal trial. In deciding whether an accused can function, a military judge can apply factors set out in Wilson v. United States , 391 F.2d 460 (D.C. Cir. 1968): (1) the extent to which the amnesia affects the accused’s ability to consult and assist his lawyer; (2) the extent to which the amnesia affects the accused’s ability to testify on his own behalf; (3) the extent to which the evidence could be extrinsically reconstructed, in view of the accused’s amnesia; (4) the extent to which the Government assisted the accused and defense counsel in reconstruction; (5) the strength of the Government case; and, (6) any other facts and circumstances that would indicate whether the accused had a fair trial.