Can Amnesia be a Legal Defense


Amnesia is the loss of memory caused by psychological and physical trauma. While in order to be responsible for a crime the person must remember committing it, not remembering the crime is rarely the same as not committing the crime. So how can amnesia be used as a legal defense?

Legal defenses under amnesia

Amnesia is not considered the same as having a mental illness while committing a crime. The defendant’s mental state is what is important when trying to use amnesia as a defense. If the defendant lost their memory after they committed the crime, it has no effect on the defendant while they were committing the crime. Amnesia is not typically a sound defense, but it may be if the amnesia made the defendant experience conditions stated in the insanity defense.

Standing trial with amnesia as a legal defense

using amnesia as legal defenseAmnesia can be a factor when courts are deciding whether the defendant is competent enough to stand trial. Courts consider the following when determining whether the defendant is competent enough to stand trial:

  • whether the defendant is able to discuss the defense of the case
  • whether the amnesia is temporary or permanent
  • whether the crime can be reconstructed without the defendant’s testimony
  • whether the government’s files can help in preparing the case
  • the strength of government’s case.

The judge or jury can take these factors into consideration when deciding the penalty of the crime, but amnesia is typically not used to determine whether the defendant is innocent or guilty.

Using amnesia to plea insanity

Defendants must tell prosecutors before the trial if they plan to use insanity as a defense. Psychiatrists will examine the defendant prior to the trail and then will testify during the trial whether they believe the defendant was “insane” while committing the crime.

Photo by Nathan Laurell

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