“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.” (Green, M. 2006).

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.”  (Moore, T. E. and Green, M. 2004).

FASD is also a largely invisible disability, with no obvious physical markers.  Yet, 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.”  (Green, M. 2006).  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:

• act inappropriately when touched 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.

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:

• Keep your questions short to avoid asking too much at once.   Complicated and wordy questions can be especially difficult to process and respond to, by a person with FASD. 
• Listen actively to the person’s responses.  If he or she is not responsive, try to reword your questions accordingly.
• Be patient.

If you are representing a person who you suspect may have FASD, you should 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 one simple question: “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 (Malbin, D.V. 2004).