Memory Disorders in the Law Courts

Abstract

This paper reviews the ways in which memory disorders and memory distortions arise in the criminal courts. Amnesia for offences is considered in terms of automatisms, alcohol, and crimes of passion. False memories arise in false confessions, allegations of false memory for child sexual abuse, and, just occasionally, with respect to delusional memories. More generally, memory and neuropsychiatric disorders may have implications at each stage of the legal process (fitness to plead, the insanity defence, cases of automatism, diminished responsibility, and at sentencing). However, patients with memory and neuropsychiatric disorders remain very vulnerable within legal and court processes.

Who doesn't believe their memories? Development and validation of a new Memory Distrust Scale.

“…Yet some of Gudjonsson's case studies also implicate beliefs about commission errors, noting, for example, that distrust "may occur when suspects' memory of their alibi and innocence is undermined by police during interrogation" (Gudjonsson, 2017, p. 157). Similarly, other experts in legal psychology and suggestibility define memory distrust as being grounded at least partly in beliefs about commission errors (e.g., Kopelman, 2013). Zhang et al (2022), for instance, recently connected memory distrust with the concept of nonbelieved memories, whereby people maintain a vivid experience of recollecting a past event yet cease believing that the event occurred at all, or believing that their recollection is accurate.…”

Automatism: Are we throwing the baby out with the bathwater?

“…Afterwards, the individual may have no recollection, or only partial and confused memory for his actions.’ Bourget et al 3 and Yeo 4 both argued that involuntariness and lack of control are much more important features of automatism than the precise level of consciousness (or lack of it). Kopelman 5 adopted an essentially pragmatic, descriptive definition, which was ‘an abrupt change in behaviour in the absence of conscious awareness or memory formation associated with certain, specific clinical disorders.’ These included epilepsy, parasomnias, hypoglycaemia and head injuries (see also 6 ).…”

“…Some of the inconsistencies which have arisen, both within and between different jurisdictions, result from the failure to make this important distinction. The concept of medical ‘automatism’ should be reserved for those cases in which volition is disrupted as a direct result of a disturbance of conscious awareness (in conditions such as epilepsy, parasomnias, hyper- or hypoglycaemia, head injury; compare 5 ). Problems arise because, in many jurisdictions, the notion of ‘diminished responsibility/competency’ is limited to homicide cases.…”

Memory: what we think the psychiatrist should know in a forensic context

“…Lord Denning defined automatism as 'an act which is done by the muscles without any control by the mind such as a spasm, a reflex or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep-walking' (Bratty v Attorney-General for Northern Ireland [1963]). An automatism may be defined pragmatically as an abrupt change of behaviour, in the absence of conscious awareness or memory formation, associated with certain specific clinical disorders such as epilepsy, parasomnia, hypoglycaemia and head injury (Kopelman 2013). The distinction in English law between sane and insane automatisms is notoriously problematic.…”

“…The amnesia may be associated with other features of 'dissociation' either preceding or following the amnesic gap, but not with evidence of neuropsychological impairment, a repressive coping style, post-traumatic stress disorder or shame (Pyszora 2014). Such losses of memory do not in themselves affect criminal responsibility in England and Wales, but the credibility of such amnesia is often challenged in court by the prosecution (seeking to undermine a defendant's credibility more generally) (Kopelman 2013).…”