What happens if a defendant has an impaired memory and wants to testify?

Jay Leiderman
By: Jay Leiderman
November 02 2016

Failure-to-Recall Instruction

At defendant’s competency trial, all the experts agreed that defendant appeared to suffer from impaired memory. Therefore, at the prosecution’s request, the jury was instructed: “The inability to recall facts or information does not in and of itself render a defendant incompetent to stand trial; however, it is a factor to be considered in determining whether a defendant is incompetent to stand trial.” Defendant contends the instruction was erroneous because it might have led the jury to disregard evidence of defendant’s inability to recollect as proof that he was incompetent. We think not.

The source of the instruction was People v. Amador (1988) 200 Cal.App.3d 1449.  In Amador, the court expressed doubts about defendant’s competence and appointed a psychologist to conduct a competency evaluation. The psychologist opined that defendant was incompetent because he suffered permanent amnesia regarding the events surrounding the offense. The trial court concluded that amnesia did not, in and of itself, render defendant legally incompetent to stand trial. On appeal, the Court of Appeal agreed. “The amnesic defendant is no worse off than the defendant who cannot remember where he was on a particular day because of the passage of time, or because he was drunk, drugged, unconscious or asleep at the time of the crime. Moreover, amnesia does not inhibit discussion between attorney and client as to tactical decisions concerning the trial. [Citation.] [¶] Amnesia as to the alleged offense does not totally incapacitate the defense and a defendant is still free to assist counsel in numerous other ways.” (Id. at p. 1454.)

Regarding the propriety of the instruction, the Attorney General argues that if, in Amador, complete and permanent amnesia was found insufficient, by itself, to render defendant incompetent to stand trial, a fortiori the mere inability to recall would not justify a finding of incompetence. Defendant contends that the instruction was incorrect because it may have led the jury to disregard evidence of failure to recall as proof of a mental disorder, like schizophrenia or posttraumatic stress disorder, that did render him incompetent.

To the extent that defendant is arguing that memory impairment, in and of itself, establishes a mental disorder that renders a defendant incompetent, we agree with Amador that such impairment does not, standing alone, establish incompetency. To the extent defendant is arguing that the instruction was inadequate because it did not specifically instruct the jury that impaired memory function could be evidence of a mental disorder that established incompetency, it was incumbent upon defendant to have requested elaboration or clarification of the instruction. (People v. Dunkle, supra, 36 Cal.4th at p. 894; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 122.)

In any event, there is no reasonable likelihood that a jury would have given the instruction the gloss placed on it by defendant. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) The instruction did not tell the jury that the inability to recall cannot be considered in assessing competency, but only that it is not dispositive; indeed, the instruction states that the inability to recall “is a factor to be considered in determining whether a defendant is incompetent to stand trial.”
People v. Jablonski ( 2006) 37 Cal.4th 774

People v. Amador (1988) 200 Cal.App.3d 1449


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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com



This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: https://www.jayleiderman.com/contact/

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