Memory Loss Part 2
Last week we considered how memory loss can certainly be genuine whether through drink and/or drugs or trauma or a combination. The issue is faced with this how a barrister deals with the problem.
Of course it is not just a barristers who have to deal with this, but investigating officers and others. Let us take a rape case where the victim has been drugged and/or suffered violence. This may affect the quality of recollection. Consent may be in issue. Investigation and presentation of the case will inevitably be affected by what the complainant can and cannot say. That will be so whether in a criminal prosecution or a civil case for damages (increasingly used where the evidence shows that rape is likely so the civil standard of proof could be met but perhaps the quality of evidence is not sufficient to prove it to the criminal standard beyond reasonable doubt). Decisions as to whether there is sufficient evidence to justify proceeding can be very difficult in such cases.
Representing a defendant who says he or she remembers nothing of the relevant events ushers in a whole new set of difficulties. You obviously take your instructions as representing the truth. You might legitimately point out circumstances which could cause a jury to doubt that account (so that the client knows where he or she stands) but at least you know what the client's version of events is. Faced with the realities of the situation the client might change the story. For example, a client upon an assault case might accept the prosecution evidence that he chased the aggrieved into a dead-end alley way, in front of witnesses, shouting "I'll do you. ". He might agree that in that alleyway the complainant was assaulted, since when the complainant was seen to emerge from the alleyway he had blood all over him and was taken to hospital where he was shown to have a broken nose. His defence might be that despite the fact that the complainant says that it was the defendant who assaulted him, when the defendant caught up with him in the alleyway some unidentified person had already assaulted a complainant who for some reason has chosen to blame the defendant rather than the real attacker. If the defendant persists in that account, then his plea will be not guilty and the trial will be run. Faced however with the implausibilities of the story as they are likely to appear to the jury, he might then say "well in fact I did do it, I'll plead guilty.". It is no part of a barrister's function to persuade a client to plead guilty to something that he or she did not do. However clients understandably want to know what their chances, and that depends upon something as intangible as how a jury (a set of 12 people not yet identified) will view the facts. Inconsistencies or implausibilities are obvious matters to explore. At the end of the day however it is the client instruction which counts. If the client in the previous example says that however implausible it might sound, it happens to be the truth and he wants to pursue a not guilty plea, then the barrister must pursue that to the best of his or her ability.
The problem with the client who does not remember is twofold. Firstly whether that is credible. This can involve a number of associated problems. Whether something is credible can depend upon all the circumstances. Bear in in mind that a barrister also has an obligation not to mislead the court so that the explanation itself can cause problems. For example if the client says that he cannot remember a thing because he was stoned out of his brains on crack cocaine, that might be a good reason for not remembering, but is likely (apart from revealing a yet further offence of drug misuse) to give the jury an impression that in that state the defendant might well have been likely to commit whatever the offence charged was. However if the defendant's position is that that was the reason, then it is simply not possible for the barrister to put forward any different and sanitised reason. In any event since not being able to remember may avoid the defendant in giving evidence having to answer difficult questions, the jury made just regard this as all too convenient.
The second problem is what the barrister does. Normally you have to put your version of events to the other side's witnesses. However if you do not have a version of events it is rather more difficult to know exactly what you should be suggesting in terms of exploring the possibilities of what happened. The proper plea is also particularly difficult. Unlike in the example above, the client (if telling the truth about lack of recollection) cannot tell you whether he committed the offence or not. He is therefore likely to be asking the barrister to indicate what his plea should be. That is a much harder exercise because when a barrister deals with how something can be viewed, he or she sets that out so that the client can take a view on what he knows really happened and then decide upon his plea. When that analysis is being put forward to someone who can't remember what happened, it is much more likely to be the basis upon which the defendant decides whether to plead guilty or not. Of course if he is telling the truth he is making that decision not knowing whether he is guilty or not. That is a much more difficult scenario because it might mean that a defendant pleads guilty to something that in the event he did not do even though the circumstances look as though he did. (There are many cases where what seems to be a strong case suddenly collapses whether in the criminal or civil sphere). All the barrister can do in those circumstances is to set out their view, and ensure that the client knows that if the client really cannot remember, the question of plea is a matter for them, but the plea of guilty must be on the basis that they did it and unless they really want to do that then the other alternative is to test the evidence. Whichever way it goes it is always a difficult position for the barrister to be in.