FASD & the Justice System

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… (R. v. Henry, [1996] Y.J. No.39 at para. 6 (S.C.), MacCallum Terr. Ct. J.). (Conry and Fast, 2000).

“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.” (R. v. Henry, [1996] Y.J. No.39 at para. 6 (S.C.), MacCallum Terr. Ct. J.) (Conry and Fast, 2000).

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.”  

Sometimes it may be useful to have someone 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…?”

“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).