Let's say that a person, we'll call him Bob, decides to go out and kill someone. The police hear about the murder, but they can't figure out that Bob was the killer.

A few weeks later, Bob still hasn't been found out. However, something happens to Bob (could be an accident, stroke, etc) and now he has a severe case of amnesia.

He doesn't remember that he killed anybody at all, and goes about his daily life after recovering.

The police later discover that Bob committed the murder, and promptly arrest him. Bob is very confused, and doesn't recall killing anybody. But yet, he did in fact carry out the murder.

Is Bob guilty of the crime he doesn't remember committing?

If a location is necessary to answer the question, we'll say that he resides in the United States.

1 Answer 1


Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far.

On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder.


Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on 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.

I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception.

  • 2
    Wait, can you clarify or explain: In the United States, for what crimes is an "ability to assist in one's own defense" a requirement for trial and/or conviction? E.g., is this only crimes that require mens rea? Or is this a restatement of a NGROI defense?
    – feetwet
    Jul 11, 2016 at 1:53
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    It seems to be necessary for a fair trial that you can for example provide an alibi if you have one. Normally if you don't claim that you have an alibi then I would assume you don't have one. But with permanent memory loss, you might have a perfect alibi and not know about it. And the person who could provide the alibi might not know about it either.
    – gnasher729
    Jul 11, 2016 at 11:55

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