Inferior language skills, difficulty with memory and abstract concepts (such as time), impaired judgment, suggestibility and impulsivity can make people with FASD particularly vulnerable during investigations and encounters with police. And though significant language impairments may make it difficult for them to understand what is happening at that moment or what they are being asked, many people with FASD are able to mask their confusion. “They develop a glibness that belies their actual competence. Subtleties of language use are beyond them. Idioms or sarcasm are likely to cause confusion.” (Moore, T. E. and Green, M. 2004).
A lawyer representing a client with FASD should be fully briefed on the circumstances surrounding the accused’s encounter with police and be prepared to explain it in the context of the client’s disorder. For example, during arrest an individual with FASD may:
- act inappropriately when touched during arrest due to sensory integration problems
- become aggressive due to sensory overload from noise, flashing lights and activity at the scene or inability to read non-verbal gestures
- respond inappropriately to what was being asked because of difficulty processing language
- be unable to organize thoughts, process information or understand written language.
A person with FASD may never really comprehend a waiver of rights, and they may want to make a statement that waives their rights, without understanding the complications, and they may be motivated to talk.