Forgotten Crime Doesn't Pay

Real estate developer Maurice Doke and attorney Larry Bass thought it would be a good idea to buy some land. Bass took out a loan for $600,000 and Doke, who lacked sufficient credit to get the loan on his own accord, was to make the payments to Larry, who would then pay the bank. This type of loan, typically called a nominee loan, is illegal without the bank's authorization. The bank subsequently found out about the deal, when the loan could not be repaid. The men were arrested.

Mr. Doke later asserted incompetency to stand trial on the basis that memory lapses prevented him from assisting in his own defense. He attempted to qualify his memory lapses by pointing to his prior attempted suicide by drug overdose and carbon monoxide poisoning, which had rendered him unconscious for several days and hospitalized for three months.

A battle of the experts ensued. A neuropsychologist testifying for the defense indicated that Doke had indeed suffered memory impairment that led to difficulty retrieving stored memories. Further, the expert opined that Doke's seemingly jogged memory, upon viewing documents regarding the loans, could have been an attempt by Doke to fill in the blanks and reconstruct his memory, possibly unconsciously, and that he may actually believe these seemingly restored memories to be accurate accounts of the events. Defense counsel argued that, as a result, Doke could not testify on his own behalf, because his frequent, but honest, claims of forgetfulness would make him appear evasive.

The government's expert testified that because Doke was of above-average intelligence; any memory loss put him, at worst, in the position of the average criminal defendant. Although Doke did, indeed, experience memory loss, he was apt to recall as much as anyone would regarding a ten-year old financial transaction.

Holding: The court disagreed with Doke's claims and both men were convicted of conspiracy, bank fraud and two counts of making false statements to a financial institution.

CONCEPTS OF MEMORY

Short-term vs. Long-term

Encoding-How information is placed into memory

Retrieval-How information is returned to conscious awareness

Long-term: Procedural vs. Declarative

Procedural memory-for how to do things

Declarative memory-for facts and episodes

James Seward, Ph.D.

Forensic Psychologist

The Forensic Panel

[biographical notes]

James Seward, Ph.D. comments: In the current literature, memory is conceptualized as consisting of a short-term system and a long-term system. There are two important processes in memory: encoding and retrieval. Encoding is the process whereby information is placed into memory, and retrieval is the process whereby information is returned to conscious awareness. Long-term memory is subdivided into procedural and declarative. Procedural memory is memory for how to do things (e.g., riding a bicycle). Declarative memory is memory for facts and episodes (e.g., the capital of France, your graduation from high school). In this case, the defendant alleged a breakdown in long-term declarative memory, i.e., his inability to recall details of transactions that took place some 10 years previously.

The neuropsychologist typically assesses declarative memory by administering standardized tests. These tests consist either of individual measures designed to assess one domain of memory and learning, (e.g., the California Verbal Learning Test or the Rey Complex Figure Test and Recognition Trial, for auditory-verbal and visual memory, respectively) or a battery of memory measures such as the Wechsler Memory Scale-Third Edition. This latter instrument assesses immediate, delayed, and working memory in both auditory and visual modalities. All of these measures test memory in two formats: recall and recognition.

A complicating factor in the investigation of memory complaints is that difficulty encoding or retrieving information may not be due to memory trouble per se, but rather may reflect difficulty with attentional or higher intellectual functions. People with poor attention may have trouble concentrating on the material to be learned. People with deficient reasoning and/or problem solving abilities may have difficulty effectively using cognitive strategies to access information that has been learned.

Malingering is an issue that arises frequently in claims of memory impairment in legal proceedings.

There are specific, sound tests of memory impairment faking available to neuropsychologists (e.g., Test of Memory Malingering). There are also patterns of performance found on various neuropsychological tests that are in themselves strongly suggestive of faking. These include inability to perform "easy" items, and inconsistencies between repeat administrations of the same test.

The results of testing should be incorporated with information obtained from third parties. For an incarcerated defendant, this can include interviews with correctional staff, the classification record, and correspondence or other documents generated by the inmate. For a defendant out on bail, examiners should consider the reports of significant others and documents such as credit card records. The key is finding inconsistency; an inmate who was running a loan sharking ring in prison or successfully taking college correspondence courses is unlikely to have any significant memory impairment. Observations of the defendant's behavior in the courtroom and other settings can also be helpful. It is always preferable to evaluate the defendant, however, these other approaches can be used independently if an evaluation is not possible.

Mr. Doke's alleged inability to remember the details of financial transactions he took part in 10 years previously is not necessarily indicative of any memory pathology. Far from being a permanent record of experience, human memory is fallible (Schacter, 1999). Normal people forget and distort memories with the passage of time. This is thought to represent both a failure in retrieval and an actual loss of information from memory storage.