(“[T]rial of an [amnesiac] defendant can be fundamentally unfair in some circumstances, and consequently trial judges must determine, on a case-by-case basis, whether the defendant could likely receive (and, at the conclusion of the trial, whether he in fact did receive) a fair trial.”). These courts have relied on several nonexhaustive factors relevant to the competency determination, including: (1) whether the defendant has the ability to participate in his defense, such as by consulting with counsel and taking the stand on matters other than the amnesiac event; (2) whether the amnesia is temporary or permanent; (3) whether the crime and the defendant's whereabouts at the time of the crime can be reconstructed without the defendant's testimony; (4) whether access to government files would aid in preparing the defense; and (5) the strength of the government's case against the defendant. See Andrews, 469 F.3d at 1119; Villegas, 899 F.2d at 1341; Rinchack, 820 F.2d at 1569; Swanson, 572 F.2d at 526-27; see also Davis, 766 F.2d at 1202 & n. 8 (relying on similar factors); LaFave, supra, § 8.1(a), at 567 n. 27 (discussing factors).
The Supreme Court has "long
recognized . . . that . . . justice cannot be equal where, simply
as a result of his poverty, a defendant is denied the opportunity
to participate meaningfully in a judicial proceeding in
which his liberty is at stake." Ake v. Oklahoma, 470 U.S. 68, 76,
(1985)
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