FASD & the Justice System

Although the courtroom is not the place to diagnose FASD, clues often surface within the judicial process that indicates the need to explore the possibility of FASD.

S.T.O.P. (Systemic Telltales of the Problems)

Individual may:

  • be adopted or living in foster homes
  • have a history of trouble with the law (in particular, look for a history of fail to appear and fail to comply convictions)
  • abuse drugs and alcohol
  • show a poor school experience or dropped out of school
  • have a history of unemployment
  • have a history of a variety of medical concerns
  • suffer from a mental illness
  • have no permanent address

Look (individual may or may not show physical symptoms).

FAS features:

  • eyes further apart, smaller eye slits, no ridge between nose and upper lip, thin upper lip. (Facial features may “fade” in adolescence and adulthood)
  • dental problems
  • skeletal irregularities
  • balance or motor difficulties
  • behaviour/non-verbal presentation may be inappropriate for the courtroom (including clothing)
  • may contravene boundaries (improperly friendly) or may not engage with court personnel at all.

It must be remembered that the physical aspects of FASD are often hidden; the clues may not be obvious.

Listen

  • possible speech problems (related to physical structure of the mouth and dental problems)
  • improper use of “big words” (cognitive and language use problems)
  • takes you on tangents when talking (short term memory problems, unable to apply language conventions, problems with abstractions)
  • inappropriate answers to questions
  • testimony may be vague and confused (memory problems, inability to use expressive language effectively)
  • an inappropriate answer to a question might indicate that the individual has impaired hearing
  • grandiose ideas
  • illogical thought processes
  • parroting back in response to questions or comments.

Voices of experience: 

“I assumed that my FAS clients would be able to demonstrate remorse to the sentencing judge.” (Boulding, D. 2001).

“The accused spoke in a rambling, disjointed, and frequently unresponsive manner.” (R. v Henry, [1996. Y.J. No. 39 at para.. 6 (S.C.), MacCallum Terr. Ct.J.) (Conry, J. and Fast, D. 2000).

“His answers were often simple affirmations or negations, not always responsive to the questions, and verbally showed a difficulty in verbalizations and an imperfect understanding of the issue at hand.” ” (R. v Henry, [1996. Y.J. No. 39 at para. 8 (S.C.), MacCallum Terr. Ct.J.) (Conry, J. and Fast, D. 2000).

“It is to be noted that [the accused] was told at once that he was under arrest for murder. Nevertheless, at page 17 of the transcript he asked, ‘I’m not in trouble?’” (R. v Henry, [1996. Y.J. No. 39 at para. 27 (S.C.), MacCallum Terr. Ct.J.) (Conry, J. and Fast, D. 2000).

“I failed to see that behind my clients’ cheery, positive presentation of self lurked another problem. To most judges, police officers, probation people, and other lawyers, my clients did not present themselves as really bad kids. My clients tended to present themselves as first-time offenders who had made some silly one-time ‘mistake’. The problem was they actually had long Criminal Records for those same ‘mistakes’.” (Boulding, D. 2001).