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Trial

“I assumed that because we had been to court many times that my clients would know that they should not interrupt the crown prosecutor…” (Boulding, D. 2001).

“I assumed that my FAS clients would be able to tell the judge what happened in a way that would make sense”. (Boulding, D. 2001).

These are two common examples on how FASD can impact on a person’s behaviour, communication style, or memory while in court.

Important things to know about people with FASD going through the trial process

On our “Recognizing FASD” subpage [LINK TO THIS CONTENT], we provide detailed information about detecting whether a person might have FASD, which could be helpful to you in preparing for trial. We’ve also developed a document containing general tips on working with people with FASD.  [NOTE TO KRISTINA Note this regarding linking to separate “tips” document”]

Below, we provide some common examples of behaviours and gaps that may affect people with FASD while undergoing trial. Our “Tips” document contains more information on strategies to better help people with FASD who are going through the court process. 

Memory

The memory processing difficulties of a person with FASD can be like 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.

Some examples – a person with FASD may be more likely to:

  • not remember what was said 10 seconds ago or less because of short term memory difficulties
  • forget something today, but remember it tomorrow
  • present events in the wrong order
  • confabulate based on impaired memory or desire to please
  • answer questions using the “information” given in the questions
  • be unable to cope with abstract questions, or questions not simply stated
  • not be able to follow proceedings, and may become frustrated.

Things to do:

  • keep questions very simple, and give time to respond
  • schedule extra time for legal appointments to make sure you have more time to explain things if a story seems “off” or has contradictory elements, take time to try to sort this out with the person you’re working with
  • if there is a trusted and reliable person in the client’s network, invite that person along to take notes and to help the client understand and remember later

Things to avoid:

  • barraging your clients with information

  • assuming your client is lying rather than possibly confabulating

  • using complicated legal language

  • Transition from remand to court and back

Transition between different environments

A person with FASD may find transitions very challenging when moving from one situation or environment to another, because their brain does not process information quickly.  If incarcerated, the accused may have trouble moving from the prison cell to transportation, to court holding cell and then to the courtroom. They may become agitated or “lost” by the time they have to testify, and may not be able to take in what is going on during court proceedings.

Things to do:

  • Try to get extra time for your client to calm down if needed
  • Try to make sure your client has been given something to eat
  • Inform the guards of this potential so that may deal with your client in an appropriate manner.
  • Time

Concept of time

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. It’s important to note that there is no one solution that will work for everyone with FASD – the objective should be to find whatever works for the affected individual.

Things to do:

  • Try to map out important time blocks to make them more visual
  • Use a colour coding system to help them keep track of important dates (legal appointments, court dates)
  • Find ways to remind the client about court dates
  • Arrange for someone to escort the client to appointments or court dates
  • Always try to find a reliable family member or friend that can be a “second brain” for the client

Things to avoid:

  • Assuming that the client will show up without reminders very close to the time of the appointment or court date, and on the court date itself.
  • Information Processing and Language

Information processing and language

People with FASD are often aware of their deficits and develop strategies to mask them, for example:

  • “chatty” speaking patterns
  • tangential statements
  • use of large, often misused words.

An accused with FASD may:

  • not correctly interpret visual information
  • be able to read court documents, but not comprehend what they say (but will tell you they understand in order to not “look stupid”)
  • only hear every third or fourth word that is spoken in court
  • misinterpret lawyers or judges' non-verbal gestures
  • tell the judge they understand what he/she just said even if they do not
  • be easily led and manipulated during questioning
  • provide information that is off topic, inappropriate for the circumstances, or confusing

Things to do:

  • be clear and straightforward when asking questions of your client, and asking opposing counsel or judges to adopt the same approach
  • ask the court to accommodate your client’s disability by allowing for extra time to conduct the proceedings

Things to avoid:

  • Distractions in the courtroom. Courtrooms are full of distractions. Don’t add to this, and try to prevent others from engaging in distracting behaviour.
  • Behaviour in formal proceedings

Behavior in the courtroom

In the courtroom, an accused, witness, or victim with FASD may:

  • not be able to behave according to the conventions and solemnity of the courtroom
  • not understand the severity of their situation
  • act inappropriately and or act impulsively or without inhibition
  • be overly friendly, aggressive or withdrawn
  • appear to have no remorse or consideration for others involved in the case

Two common reactions of those with sensory processing difficulties are to either shut down or act out.   When a person with FASD shuts down, he or she may “go flat”, limiting his or her response to “I’m too stupid” or “I don’t know.”   Conversely, the accused with FASD may act out with rage.

Things to do:

  • rehearse the client to focus just on you.
  • practice with the client sitting calmly in a neutral situation
  • be aware that the justice hearing the case will judge the client’s facial expression – for example, the client may appear smug but may actually just be scared

Things to avoid:

  • allowing opposing counsel to harangue the client where possible
  • Getting relevant information

Obtaining Relevant Information

Cognitive and memory problems can challenge the ability of a person with FASD to give a clear and cogent version of events. Instead, the person may tell his or her story in a more circuitous fashion.

“The Constable said that the accused told her that … [the victim] …called him stupid, that is, the accused, stupid. He did not like that so he hit [the victim], and [the victim] also hit him. The Constable could never ascertain in just what order the hitting occurred. The narrative, she said, jumped all over the place…

“The accused spoke in a rambling, disjointed, and frequently unresponsive manner. Example: Answer: [The victim] punched me too. Question: When? Answer: Um, the same night my curfew --- the little hand at the ten and the other one at the six. And then I go home and he punched me.”

Be patient and listen carefully, so that you are better able to identify the key facts. Also remember that individuals with FASD need to associate experiences with concrete activities.   

Things to do:

  • Schedule more time for a trial involving a person with FASD
  • Consider cultural differences in behaviour
  • Speak slowly
  • Statements and questions should be short and to the point
  • Break information into small pieces (for what you are presenting to the individual, and in what you expect to receive back)
  • Always confirm that what they heard is what you said
  • If necessary, ask a question in several different ways
  • Allow the person with FASD more time to respond to questions and tasks
  • Read all materials out loud to those who need it
  • Use the person’s name frequently, especially prior to asking a question
  • Use “visuals” as much as possible (simple diagrams, charts, point form, pictures)
  • Be proximal, but not too close to the person
  • Try having the individual with FASD role play what happened
  • Check for comprehension by asking questions about the content of a statement or question, rather than asking if they understand. 
  • Give verbal cues when activities are about to change (5 min. - 3 min. warnings, give “heads up” that the something different is about to happen in the court… “In three minutes the court is going to take a break…” “When the long hand of the clock is on the 12 the Court will stop for the day.”)  
  • Have someone present to keep notes and write information down for the accused.

If you wish to use audio or video teleconferencing with a person with FASD you may try to do this. If this is not possible, try to minimize distractions by using a separate, quiet room.

Things to avoid:

  • Avoid inferences
  • Avoid asking multi-step questions
  • Avoid questions containing complex wording
  • Avoid pronouns – use the names of people to whom you are referring
  • Avoid assumptions about the accused’s ability to understand and respond appropriately.
  • Avoid double negatives such as “Did you not see…?”

Mens Rea /Actus Reus – start of trial

In all criminal cases, the Crown must prove two elements to support a finding of criminal fault:

  • the accused committed the offence (actus reus), and
  • the accused had the requisite mens rea (“guilty mind”)

Actus reus requires proof that the accused actually committed the illegal act. The legal concept of mens rea requires proof that the accused intended to commit an action that they knew was prohibited. Mens rea may involve general or specific intent, recklessness or willful blindness to the consequences of ones actions.

It is important that in cases involving individuals with FASD, mens rea be considered in the context of the individual’s cognitive and behavioural challenges and deficits.

Individuals 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.” (Moore, T. E., and M. Green, 2004).  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….” (Buxton, B. 2004).

“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.”