i. How to detect FASD
“Our system of justice is founded on the premise that defendants understand the relationship between actions and outcomes, between intentions and consequences, that people who make choices are responsible for the fallout. The cognitive impairments of persons with FASD call these fundamental premises into question.”
For example, individuals with FASD may have the basic ability to function but may be subject to memory loss, impulsivity, and suggestibility. People with FASD tend to be very concrete in their thinking and unable to learn from past mistakes. “Typically they do not make connections between cause and effect, anticipate consequences or take the perspective of another person.”
FASD can be a largely invisible disability, with no obvious physical markers. As a result, awareness of the cognitive deficits of FASD and the fact that they are the result of permanent brain damage is critically important to the proper representation and judgment of individuals with FASD. Crown, defence counsel, judges and all corrections workers should have a basic understanding of FASD.
As noted by Justice Melvyn Green of the Ontario Court of Justice, “judges only know (or are permitted to know) what counsel, by way of evidence and submissions, are prepared to tell them.” It is critically important that counsel have the ability to recognize the signs of FASD. The circumstances surrounding the arrest of an accused may provide some important clues. For example, during arrest an individual with FASD may:
Each of these responses could result in an escalation of the events and further charges. Recognizing them as signs of possible FASD, enables defence counsel to address the charge that led to the initial arrest, as well as any further charges. FASD brain damage may compromise a person's ability to control behaviour, understand the court process, and/or instruct counsel. If you believe that a person you are interviewing may have FASD:
If you are representing a person who you suspect may have FASD, consider issues relating to sentencing, bail conditions, fitness to stand trial, criminal responsibility and witness suggestibility, and other possible impediments to appropriate representation and treatment under the law.
One way that judges can help address this issue is by asking advocates and professionals: “Did you consider FASD?” This one simple question may influence advocates and professionals to become more educated on what FASD is as well as to consider the consequences and possible interventions of this condition.
b. Overall considerations
People with FASD may be especially vulnerable during encounters with justice system players. This is because they may have impaired language skills; difficulty with memory and abstract concepts (such as time); or impaired judgment. They may also be overly suggestible or impulsive.
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.”
Several factors can make interviewing a witness or victim with FASD difficult, including:
c. Communicating with people with FASD
Communications with people with FASD should be:
d. Time challenges facing people with FASD
“My [FAS] clients often did not follow through with basics, like showing up for appointments, being on time, going to the right places, or conducting themselves appropriately….My assumption that my clients were not interested or did not care was wrong; they could not structure the pieces of the puzzle together in a logical and meaningful way.”
ii. Memory transitions, time, information processing, and language
Memory problems, impulsivity and hyper-suggestibility raise the risk of false confession by individuals with FASD. “On repeated questioning, the individual with [FASD], who is often susceptible to suggestions of what might have happened, may incorporate these suggestions into his or her own retelling of the event.” Similarly, youth with FASD are often eager to please people in authority, and may provide a false confession to please police, or in the belief that if they confess they will be allowed to go home. These and other cognitive problems associated with FASD should be considered at the outset when considering whether the accused committed the offence (actus reus).
Iindividuals with FASD tend to be very concrete in their thinking. They are often unable to learn from past mistakes. “Typically they do not make connections between cause and effect, anticipate consequences or take the perspective of another person.” Even where the accused has a normal IQ score, he or she may have problems with “poor memory, slow ability to learn new skills, inability to learn from past experiences and problems recognizing the consequences of his actions….”.
“Every person giving testimony in court, of whatever age, is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to…mental development, understanding and ability to communicate.
a. Memory and transitions
Intermittent and short-term memory problems, and gaps in long-term memory, can impact upon the ability of a person with FASD to recall and clearly describe past events. The accused may:
An analogy for the memory processing difficulties of a person with FASD is a filing cabinet that has fallen and spilled its contents on the floor. The individual knows the information is there, but cannot find the file to retrieve the required information.
Transitions may also be difficult. A person with FASD may be challenge when moving from one situation or environment to another. If incarcerated, the accused may have trouble moving from the prison cell to transportation, to court holding cell and then to the courtroom, and then may be quite agitated or “lost” by the time he or she testifies.
People with FASD can have difficulty understanding the concept of time, which can interfere with their ability to describe past events, keep appointments, and plan effectively for the future. Most often the responsibility for ensuring that a person with FASD arrives at a destination on time will have to rest with an unaffected adult. “For older teens and adults, consider a colour coding system when using a calendar or day-timer to assist them in keeping track of things that occur over larger blocks of time such as paying the rent or seeing the dentist, doctor, probation officer or counselor, etc.”
People charged with the supervision of individuals have developed an array of customized strategies that teach time by association, make time blocks “visual”, and substitute face clocks with a digital alarm clock. No one solution will work for everyone with FASD – the objective should be to find whatever works for the affected individual.
A lawyer who is representing an individual with FASD will want to find ways to remind the client about court dates (since reminder slips are likely to be lost But it’s important to realize that an accused with FASD may not understand the consequences of being late.
c. Information Processing and Language
People with FASD are often aware of their deficits and develop strategies to mask them (e.g., “chatty” speaking patterns, tangential statements, use of large, often misused words). In some cases an individual with FASD may demonstrate good verbal skills which mask poor comprehension of the situation. Conversely, if the accused experiences sensory overload he or she may shut down entirely or will turn to negative behaviours.
The following scenarios illustrate just some of the ways that an accused, witness or victim may act in the context of the criminal justice system.
With a warrant out for his arrest, A turned himself in to the police. He called his lawyer, who advised him to say nothing until the lawyer arrived. By the time the lawyer got there, A had provided a video statement.
B came to his court date for an assault charge and suddenly decided to plead guilty. His lawyer explained that he had a good chance of being found not guilty at trial, and advised him, strongly, against pleading. B insisted. When asked by the judge if he had anything to say before sentencing, B gave a long, rambling explanation of why he was innocent.
C was a defence witness. On the stand, the defence lawyer gently tried to ask her questions that would help C present helpful facts. Although the questions were basic, C found them difficult and reacted with hostility to the lawyer.
C also asked the judge to stop people in the court from speaking to each other.
D, a young adult, was arrested for shoplifting. He was given a notice to appear in court but put it aside and forgot. He did not remember to tell his parents, with whom he resides. Now there is a bench warrant for his arrest and he has a much bigger problem.
E, a youth, was arrested after some property was mysteriously damaged. He was granted bail, but his conditions required him to live at home and follow a curfew. His parents were very worried when he did not come home one day ... or the next. He appeared on the third day, surprised that his parents were in a state of anxiety and had pulled his bail. His friend had invited him on an impromptu trip, so he went.
e. Examples of behaviour that may be associated with FASD
Too often, better-organized people have arranged crimes and set them up so that the accused with FASD is left at the scene to take the blame.
Here are some observations of behaviours exhibited by people with FASD that may result in misunderstanding, misinterpretation, or harsher treatment or sentencing when accused of criminal offences.
“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).
Tips for working with witnesses with FASD
(Fraser, C. 2009)
f. Screening Tools and Strategies
Researchers and clinicians are working to develop tools for screening FASD to help identify individuals at risk of FASD.
h. Conry and Fast (ALARM)
Dr. Julianne Conry and Dr. Diane Fast developed a tool to help identify the difficulties that affect people with FASD. ALARM stands for Adaptive behaviour, Language, Attention, Reasoning, Memory.
Adaptive Behaviour Problems
Approximately 60% of children with a diagnosis of FASD will have attention deficit problems (Streissguth, A., et al. 1996). As they grow older, these will include distractibility, restlessness, irritability and inability to complete tasks. This attention-deficit problem will have significant effect on thinking and learning patterns, and behaviour.
People with FASD typically do not learn from experience. They can have trouble connecting cause and effect, and often do not realize the impact of their behaviour on others.
Individuals with FASD may exhibit varying degrees of memory impairment. Short-term memory and long term recall can both be affected. Intermittent memory often causes inconsistencies in the retrieval of information from one day to the next.
View the ALARM chart [LINK TO THIS]
iii. Stop, Look, and Listen
Although the courtroom is not the place to diagnose FASD, clues often surface within the judicial process that indicate the need to explore the possibility of FASD.
S.T.O.P. (Systemic Telltales of the Problems)
Individual may present with several systemic factors:
Look (individual may or may not show physical symptoms).
Some people with FASD may contravene boundaries (for example, by being inappropriately friendly in the formal court context). Or, they 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.