FASD & the Justice System

People with FASD, and in particular youth, are vulnerable to false confession.  Many have trouble controlling impulsive behaviour, struggle with poor communication skills and are easily confused under pressure.  They may not understand or hear the entire legal caution, become “chatty” after arrest and say self-incriminating things. 

Eager to please people in authority, people with FASD may provide a false confession to please police, or in the belief that if they confess they will be allowed to go home.  (US Dept. Health and Human Services, SAMHSA. 2007).   Also, people with FASD have memory problems.  While some researchers have found that youth with FASD tend to lie (Rasmussen, 2008), others suggest that what one really sees with FASD-impaired youth is adaptive behaviour meant to compensate for memory impairment. “They can’t keep the story straight because of huge memory impairments. They tell you what they think you want to hear.  They’re good at reading cues in your face and you get a different story every time.”  (Nanson, J. 2004).

The verbal abilities of youth with FASD are also highly impaired.  “One of the things that is very critical about this is that the court system is a very verbal system.  It’s not a system that shows you much. It’s a system that tells you things and gives you documents to sign. And these are individuals who will sign anything, who will agree to anything and are very good at not letting you know how impaired their verbal skills are.” (Nanson, J. 2004).

In representing an accused with FASD, it is also important to also remember that the accused’s chronological age may not match his or her functional age.   For example, in one study, the median chronological age of participants with FAS was 16 years, 5 months, while their functioning age was 6 years, 7 months.  (Streissguth A, LaDue, R, Randels, S.P. 1988).

Communications with adults and young people who have FASD should be:

  • Concrete
  • Simple
  • Repeated
Open-ended questions may be useful. R. v. L.T.H [2008 to SCR 739, 2008 SCC 49]