CRIMINAL JUSTICE: Defending the Elderly

Volume 29 Number 5


J. Vincent Aprile II specializes in criminal law at Lynch, Cox, Gillman & Goodman, P.S.C., in Louisville, Kentucky.


The criminal justice system has begun to recognize the need to prosecute vigorously cases of elder abuse, neglect, and financial exploitation by creating prosecutorial units to specialize in these types of cases with an emphasis on training prosecutors and law enforcement officers on the unique aspects of the elderly as potential or actual victims of crime. Certainly this is an excellent policy and an approach necessitated by the mental and physical conditions that often affect the elderly who are victimized.

However, frequently absent from this approach is a recognition that lawyers called upon to represent elderly clients charged with crimes also need specialized training, focused on the needs and problems often present in an elderly criminal defendant. As more and more people join the ranks of the elderly in America, the number of elderly facing criminal charges grows, just as does the number of elderly victims of crimes. In this context, the elderly, whether in the role of a victim or a suspect, need the assistance of lawyers who appreciate the potential conditions and limitations older individuals may suffer.

Mental and physical competency. A criminal defense attorney must view an elderly client through two separate frames. Counsel must appreciate that the elderly client is presumed to be mentally and physically capable, when properly advised and assisted, of understanding the lawyer’s advice and making decisions regarding important matters in the case. But defense counsel must be alert to the possibility that an elderly client may be experiencing cognitive or physical impairment that is not apparent.

For example, dementia is a loss of brain function that occurs with certain diseases, such as Alzheimer’s. Dementia is usually found in older people, occurring rarely in people under the age of 60. As a person grows older, the risk of dementia increases. In most cases, it is a degenerative, nonreversible condition.

Common signs and symptoms of dementia include (1) memory loss, (2) difficulty communicating, (3) inability to learn or remember new information, (4) difficulty with planning and organizing, (5) difficulty with coordination, (6) personality changes, (7) inability to reason, (8) inappropriate behavior, (9) paranoia, (10) agitation, and (11) hallucinations.

Thus, dementia, depending on the individual’s quota of symptoms, could render an elderly client mentally incompetent to stand trial, either temporarily or permanently. As a result, it is incumbent on counsel to be certain that the client has either no dementia or that the specific dementia symptoms will not, either individually or in toto, adversely impact the client’s mental competency to stand trial.

Additionally, when representing the elderly defendant, counsel must determine whether the client’s medical conditions will interfere with the defendant’s physical competence to stand trial. Physical competency focuses on the accused’s medical condition and whether the physical problems the defendant is experiencing will be exacerbated by subjecting the infirm defendant to trial, increasing significantly the risks to the accused’s health.

Many of the elderly suffer from one or more medical conditions, including various heart conditions, breathing problems, diabetes, and bone and joint disorders. Often these conditions, their severity, and the pain and suffering that accompany them are not immediately apparent to counsel. Defense counsel must inquire into the medical conditions or symptoms an elderly client may be experiencing.

Physical competency to stand trial weighs both the medical evidence of the elderly defendant’s health problems and the availability of remedial measures, such as a shortened trial day, appropriate medication, at-hand medical equipment, and standby medical personnel. Courts also analyze whether the physical problems of the defendant are temporary or permanent when considering whether a postponement of the trial is a workable solution.

Even when the degree and severity of dementia are insufficient to render the elderly defendant mentally incompetent to stand trial, that dementia may be sufficient to demonstrate physical incompetency to stand trial.

Issues of mental and physical incompetency to stand trial are not unique to the elderly defendant, but the occurrence of either or both of these issues is more prevalent in the older defendant and often much more difficult to recognize.

The presence of dementia in the elderly defendant may also be relevant to issues pertaining to the client’s conduct during law enforcement investigation of the case. An elderly client’s confession, consent to search, or other decisions may be undermined by the accused’s dementia. Even if the dementia is inadequate to justify the exclusion of evidence on constitutional grounds, the accused’s dementia may be relevant to the jury’s view of the credibility of the confession or other decisions made by the client.

Similarly, the defendant’s decision not to testify at a jury trial may be the result of the elderly defendant’s dementia. In that situation, defense counsel may need to find a way to inform the jury of this reason why the defendant will not take the stand.

In cases involving elderly prosecution witnesses, defense counsel should be alert to the possibility that these witnesses themselves may suffer dementia and concomitant memory problems that could raise credibility issues. Defense counsel, where there are appropriate indications of dementia in an opposing witness, should seek access to the witness’s medical history through pretrial motions.

Sentencing and confinement. In sentencing, defense counsel should be aware of the extremely low recidivism rates for elderly defendants. Department of Justice statistics show that prisoners 55 or older recidivate at a rate of just 2 percent.

Additionally, elderly inmates, particularly those convicted of nonviolent crimes, usually present a host of problems for confinement facilities, which may militate against imprisonment and support a probated sentence: “In addition to health care issues, work assignments, co-payments, nutritional requirements, concerns for victimization, end of life issues and appropriate staffing are concerns that will have to be addressed” (Ronald H. Aday, Aging Prisoners: Crisis in American Corrections, 2003).

Confinement for the elderly may subject them as a group to more risks than prisoners in other age groups. Elderly inmates may be more vulnerable to self-harm, suicide, or victimization than their younger counterparts. Older prisoners are necessarily wary of being victimized by younger and stronger inmates and view their advanced age as a significant factor marking them as potential victims. Owing to the natural reduction in physical mobility associated with aging, older inmates suffer stress because they are less able to perform routine tasks in confinement, such as showering or using the bathroom.

Additionally, defense counsel should use life expectancy tables to demonstrate the relationship of a potential sentence of imprisonment, regardless of its length, to the estimated life span of the defendant. For an elderly defendant, a sentence of ten years may be the equivalent of a life sentence or even a death sentence. Demonstrating the uniqueness of every defendant is essential to a sentencing presentation, and the specific age-related circumstances of an elderly defendant must be part of the sentencing equation.

Conclusion. These are but a few of the issues that a defense counsel must consider when representing an elderly client. Criminal defense counsel must factor into the representation of an elderly defendant the conditions and limitations that often, but not inevitably, coincide with the aging process.


ABA Criminal Justice Section

This article is an abridged and edited version of one that originally appeared on page 55 of Criminal Justice, Spring 2012 (27:1).
For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
Periodicals: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; Juvenile Justice Newsletter, three times per year (electronic); White Collar Crime Newsletter, three times per year (electronic).
Books and Other Recent Publications: Trial Tactics; Street Legal; The Citizenship Flowchart; The State of Criminal Justice; Leapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; The Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers; Fourth Amendment Handbook, 2d ed.; The Shadow of Justice (fiction).



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