18.1 Clash with Common Law Fundamentals

Our justice systems are rooted in Anglo Saxon law and based upon a few fundamental beliefs: we are rational beings, we know right from wrong, and we have free will and can foresee consequences. These fundamental underpinnings are reflected in the Supreme Court of Canada decision of R. v. Ruzic (2001, p. 715), quoting from R. v. Chaulk (1990):

…this assumption of the rationality and autonomy of human beings forms part of Canadian criminal law: “At the heart of our criminal law system is the cardinal assumption that human beings are rational and autonomous (Ferguson, 1989). This is the fundamental condition upon which criminal responsibility reposes. Individuals have the capacity to reason right from wrong, and thus to choose between right and wrong.”

Ferguson (1989) continues: “It is these dual capacities – reason and choice – which give moral justification to imposing criminal responsibility and punishment on offenders. If a person can reason right from wrong and has the ability to choose right or wrong, then attribution or responsibility and punishment is morally justified or deserved when that person consciously chooses wrong” (p. 140).

Our laws are peppered with presumptions reflecting this historical concept, which begins with a general and strong presumption of sanity. Exceptions to this presumption have existed since the 1800s, but historically, the threshold for criminal responsibility has been very low, with few shades of gray. In common law, there is a parallel fundamental presumption that one intends the natural consequences of one’s actions, a principle that is applied in criminal courts every day, at virtually every stage of the adjudication process.

Our systems entrench a presumption of innocence, and so we have developed rules around bail, but our bail laws also are grounded in the presumption people act rationally. Bail generally is structured upon the logical premise that if a court threatens adverse consequences for failure to comply with release conditions, accused parties will choose to follow the conditions in order to avoid the consequences. An extension of this logic is an assumption that the harsher the threat of adverse consequences or of more and tighter restrictions, the greater the likelihood of compliance.

The presumption of rational decision-making also is present at the trial stage, infused into rules of evidence. For example, the confessions rule is a rule developed in common law to offset risk of a wrongful conviction. This rule states that no confession made to a person in authority can be admitted into evidence unless first it is proven to be voluntary, which historically has meant it must be free of threats or inducements. In its original formulation, this rule assumed no one in his or her right mind would confess to something he/she did not do unless threatened or bribed. In other words, the rule assumes we all think through and recognize the consequences of what we say. At the sentencing stage of a case, the presumption of rationality again figures prominently, especially in concepts such as general and specific deterrence, about which more will be said later. Our sentencing regimes tend to rest upon a principle of “just deserts,” which is a logical extension of any system that derives moral and legal authority from the tenets described in R. v. Ruzic (2001), above.

The point of these observations is to emphasize how great a challenge our justice systems present to people with FASD accused of crimes and conversely, how great a challenge the condition of FASD presents to our systems’ participants. In a consensus conference held in 2013, chaired by Ian Binnie, former justice of the Supreme Court of Canada, the jury found:

The evidence we have heard is compelling that those with FASD are likely to have a diminished capacity to foresee consequences, make reasoned choices or learn from mistakes. Therefore, their actions are likely to clash with assumptions about human behaviour at almost every stage of the justice system. (Canada, IHE, 2013)

The problem noted above is compounded by the fact FASD often is an invisible condition at first blush, which means the presumption of full competence is routinely applied to affected people with reduced cognitive abilities.

It behooves us to consider that many of the assumptions made about human behavior when our laws were being formed in the nineteenth century have not been borne out by modern developments in science, yet they continue to be the default position absent evidence to displace them. And we tend, or at least it is easy, to revert to default positions, especially when tired and rushed and when the alternative is difficult. If we are to ensure persons with FASD do not get trampled, we must remain ever-vigilant and on occasion have the courage to put old ideas aside in the interests of justice. One judge put it this way:

The cognitively challenged are before our courts in unknown numbers. We prosecute them again and again and again. We sentence them again and again and again. We imprison them again and again and again. They commit crimes again and again and again. We wonder why they do not change. The wonder of it all is that we do not change. (R. v. J. H., 2002, para. 167)

18.2 A Few Words About Our Adversarial Systems

Before turning to how our respective courts have tried to meet the challenges of FASD, a brief description of criminal courts generally may be of benefit, especially to medical professionals involved in assessments. In fact, the workings of the adversarial process likely are counterintuitive to most health professionals trained in the medical perspective, which includes mental health professionals. For example, criminal courts in a common law system are adversarial in nature. Courts operate on a theory that if two parties (the State and the individual) are equally armed (represented by trained lawyers) and do battle in the sense of putting their strongest case forward before a neutral finder of facts (judge or jury), then the truth will emerge. This system tends to serve us well in determining guilt and innocence. However, once past that stage, either by trial or an admission of guilt, effectiveness of the adversarial model in finding constructive or therapeutic solutions tends to break down. For this reason, many jurisdictions have developed therapeutic courts that incorporate a more individualized and collaborative approach, which is aimed at including a therapeutic component in sentence orders. As long as the rigors of the adversarial process are in place, it can be very difficult to gather and present evidence needed to inform judges in a timely way of the need for a therapeutic approach.

Regardless of whether one is in a therapeutic court or more traditional trial court, it is important for everyone to remember two things: (a) a court’s decision is only as good as the information placed before it, and (b) a judge can base his or her decision only on the evidence presented. Unlike most European systems, judges in our systems do not have inquisitorial powers. Although judges may have relevant knowledge from life experience or other sources, a legacy of our adversarial process is the limited extent to which they can rely upon knowledge beyond the evidence presented in the cases before them.

One final point bears mentioning before turning to how FASD has fared in our respective courts. The cases that become published and in turn, sometimes get referenced in later cases or law journals, are a very small fraction of the volumes of cases that go through courts every day. Also, the percentage of cases that actually proceed to trial is very small, usually not more than 5%. Reality is that almost every jurisdiction faces limited resources and crushing volumes, with a large proportion of cases concluded in busy intake dockets. This means that without a great deal of commitment on the part of many people on many levels, starting with decision makers charged with building capacity, frontline workers doing assessments, lawyers, and judges, accused persons with a disability like FASD can easily be left behind and deprived of access to justice. Thus, we all must do our part to pay attention, to act, and to educate.

18.3 Some Common Words of Advice

As the pages that follow will make clear, criminal law has evolved differently in our three jurisdictions, and therefore challenges presented by FASD have been dealt with differently. However, there are a few points the authors of this chapter would like to emphasize for professionals involved in preparing, defending, or prosecuting cases involving accused persons with FASD. First, it is imperative professionals know the relevant law in the jurisdictions where case is being tried. Second, professionals must know the science.

Judges sitting in courtrooms will want to arrive at just results. The role of advocates is to lead judges to such a result within limits permitted by law. Judges likely have a good handle on the law and what is possible within the law but are less likely to know the science. Therefore, the goal for advocates and experts is to translate the relevance and significance of scientific facts to the legal framework within which judges must make rulings. This often requires communicating complex concepts in lay language that judges unfamiliar with the science can understand. Because experts invariably have in-depth knowledge in specialized areas, it is common for them to use acronyms and scientific lingo when communicating with others who have similar training. However, when explaining or eliciting testimony in the courtroom about scientific phenomena such as FASD, it is important to avoid lingo. If specialized terminology must be used, it should be explained in lay terms.Footnote 1 It also is important to remain focused on the primary objective sought by calling the evidence. In other words, testimony should be kept relevant and preferably, not repetitive. Judges usually do hear things the first time or will ask for clarity, if not.

18.4 Fetal Alcohol Spectrum Disorder and the Law in New Zealand

Low levels of awareness and uptake, absence of any prevalence studies, lack of diagnostic capacity, and barriers to essential supports and services stand out as major features of the position regarding FASD in the New Zealand justice context. Although the position is better in the Youth Justice system than in the adult criminal courts, we have a long way to go before justice is accomplished for blameless victims of this neurodisability and the community, which should expect that we would be identifying the true underlying cause of offending and properly addressing it so as to reduce risk of reoffending.

18.4.1 Adult Court System

Teina Pora spent 21 years in prison for a rape and murder he confessed to but did not commit. It was not until the Privy CouncilFootnote 2 heard evidence in 2015 from Drs. Valerie McGinn and Craig Immelman regarding Pora’s FASD that it became clear why he had made frequently contradictory and often implausible confessions. On the basis of the doctors’ evidence about the various ways Pora’s FASD impacted his executive functioning, his confessions were found to be unreliable, and the convictions were quashed (Pora v R, 2015). This outcome attracted widespread public attention in New Zealand and put the significance of FASD in the criminal justice system in the spotlight in a way that had not happened previously.

Before Pora, there had been only a small number of cases in adult criminal courts in New Zealand where evidence of FASD was available. In a 2011 article, Judge Stephen O’Driscoll drew attention to international research showing the close link between FASD and contact with the Youth Justice and Criminal Justice systems (O’Driscoll, 2011, p. 119). Among other things, he expressed concern about how rarely FASD was being recognized by courts in New Zealand at all levels, the very limited FASD diagnostic capacity in the country, and lack of any prevalence research. Prior to Pora, the very few reported cases in adult courts involving evidence of FASD were for sentencing, and FASD usually was treated as a double-edged sword, justifying some credit in mitigation on the basis of reduced moral responsibility on the one hand but also being viewed as a risk factor requiring protection of the public on the other hand (e.g., Komene v. NZ Police, 2009). However, in one case, a man’s FASD was the basis for imposing a noncustodial sentence focused on rehabilitation instead of imprisonment for various charges including indecent assault, but FASD was not seen as sufficient justification for a discharge without conviction so as to avoid a second-strike warning under our three-strikes legislation (NZ Police v. Stipich, 2012).

Despite the high public profile the Pora case has given FASD in the criminal justice context, the disorder continues to have a low profile in New Zealand’s adult criminal justice system. Throughout the country there has been only a slight increase in requests for FASD assessments since Pora and a correspondingly small increase in the number of cases where evidence of the neurodevelopmental disorder was made available to the court. There also has been very little, if any, increase in diagnostic capacity. A prevalence study still has not been carried out.

Where an FASD diagnosis was available to courts, results have been mixed. In some cases, FASD continued to be viewed as a double-edged sword (Dodds v. R, 2016). FASD was the basis for finding reduced moral culpability for murder and together with the man’s relative youthfulness, justified a relatively modest discount of 2 years off the minimum period of imprisonment of 15 years and 6 months (R v. Whiting-Roff, 2018). In relation to bail, FASD was treated as a factor counting against a defendant in one case because of an anticipated inability to comply (NZ Police v. Moyle, 2018), but in another case, FASD was viewed favorably because the bail placement was supported by the neuropsychologist, McGinn, who had diagnosed the defendant’s FASD (R v. Fawcett, 2018). Evidence regarding the impact of FASD on a defendant’s inability to express remorse for offending was reason for the Court of Appeal to find the sentencing judge had erred in not giving this issue proper weight (Pomare v. R, 2017).

On a few occasions, an FASD diagnosis was the basis for finding a person to have a mental impairment for the purpose of fitness to stand trial proceedings.Footnote 3 In some of those cases, the finding was that the person concerned was unfit to stand trial due to the FASD (M v. R, 2019; NZ Police v. Hansen, 2020; NZ Police v. Herbert, 2019). In M v R, the judge who decided disposition found it was necessary in the public interest to make the most restrictive order available due to M’s high risk of reoffending, which was a consequence of her FASD. An FASD diagnosis was one of the main reasons, together with youths, for a substantial discount of 50% off the starting point of imprisonment for aggravated robbery in R v Puru (2018). The defendant’s vulnerabilities due to his FASD, which had been described by McGinn in her assessment, were described by the judge as being very important to his decision about the discount.

A therapeutic focus was adopted in sentencing a man facing a large number of dishonesty and disorder-type offenses, and intensive supervision was imposed in NZ Police v Morrison (2019). In fact, this is one of very few cases where a judge demonstrated, and set out in some detail, awareness of the significance of FASD in the criminal justice context and carefully balanced the competing factors and interests in coming to a result. The judge noted that the type of multidisciplinary management needed in the community for the defendant was beyond the means of the Corrections Department to provide, but he aimed to address that problem by imposing special conditions that were recommended by McGinn, the neuropsychologist who diagnosed the FASD. In R v Sheers (2020), an FASD diagnosis was the basis for a finding that it would be manifestly unjust to apply the three-strikes law and impose the maximum sentence of 14 years imprisonment without parole on a charge of aggravated armed robbery, instead allowing eligibility for parole after one-third of that sentence to be retained.

18.4.2 Youth Court

Recognition of the connection between those with FASD and the criminal justice system has been different in the Youth Court in New Zealand in both the pre- and post-Pora periods. In fact, diagnoses of FASD in the context of fitness to stand trial proceedings in the Youth Court were appearing from at least 2010 onward (e.g., NZ Police v. NJ, 2010; NZ Police v. UP, 2011; R v. BMS, 2010). That has continued to be the case with FASD being found a mental impairment without necessarily the criteria for intellectual disability (ID) also being established. In some of these cases, young persons were found unfit to stand trial as a result of their mental impairment (i.e., FASD) (e.g., NZ Police v. KP, 2017; NZ Police v. MA, 2016) but in other cases were found fit to proceed (e.g., R v. CD, 2020). FASD also was featuring in sentencing decisions as a reason for adopting a more therapeutic and less punitive approach in the interests of both the young person and the community, given what the FASD research had shown to be most effective in reducing recidivism (NZ Police v. ED, 2014). There were two reasons for this situation from this author’s (FitzGerald’s) point of view.

  1. 1.

    Fitness to Stand Trial. The first reason, which also is relevant in the context of adult courts, is that in 2004, the law regarding fitness to stand trial changed significantly. Until then, the only basis for finding a person unfit to stand trial for charges in New Zealand was if he or she had a mental disorder, which meant a mental illness in terms of our Mental Health legislation. Under the Criminal Procedure (Mentally Impaired Persons) Act of 2003, which came into force in September 2004, the definition of being unfit to stand trial meant a defendant who was unable, due to mental impairment, to conduct a defense or instruct counsel to do so. The term “mental impairment” was left undefined in the Act intentionally so as to increase the range of the fitness provision to ensure people with intellectual disabilities were not excluded (see Collins, 2015, p. 816).

    At the same time, the Intellectual Disability (Compulsory Care and Rehabilitation) Act of 2003 came into force, which provided disposition options for those who were found unfit on account of an ID, the definition of which included a person having a permanent mental impairment that became apparent during the developmental period and which resulted in significantly sub-average general intelligence of 70 or less, with a confidence level of not less than 95%, and significant deficits in adaptive functioning. However, by leaving mental impairment undefined, those with a significant mental health concern that did not satisfy the strict diagnostic criteria for mental disorder ID could be found unfit to stand trial.

    Since 2004, the number of fitness cases this author (FitzGerald) has heard in Youth Court where a mental disorder was the mental impairment has been minimal and still in single digits, even after 16 years. The number of cases where the mental impairment was an ID as legally defined is larger but still small and has included young people with FASD. However, the number of young people who had a significant mental impairment that did not satisfy the legal definitions for either mental disorder or ID has been the greatest in number, and those with FASD in particular were represented in this group. Given the “Swiss cheese” nature of the brain damage caused by FASD, it has not been unusual for young people to present with intelligence quotients (IQs) above 70 with the 95% confidence level but whose adaptive functioning scores in several domains were in the extremely low range.

    A serious problem for those with FASD who do not have ID is lack of access to adequate supports and services, whether these individuals are found fit or unfit. Although leaving the term mental impairment undefined has allowed people with a wide range of mental health concerns other than mental disorder or ID to be found unfit, adequate options for disposition are largely limited to those with a mental disorder or ID. To make matters worse, if a person found unfit does not have a mental disorder or ID and is not liable to be detained under a sentence of imprisonment (thus ruling out young people in Youth Court), the only order available to a court is to order their immediate release without any ability to impose any terms or conditions on such release. Therefore, for those with high and complex needs and risk factors that require managing, this often is a most unsatisfactory situation. Having been found unfit and in need of significant supports and services but not being mentally disordered or intellectually disabled, these individuals simply are released back to family or caregivers with no support provided. For persons with FASD who are not intellectually disabled, release without support usually means that after going through long, slow, complex fitness proceedings, whether they are found fit or unfit, there is nothing adequate or appropriate as a disposition option to meet their needs or manage risk. An issue that plagued fitness proceedings until the law was amended in 2018, particularly in the Youth Court, was the delay caused by the statutory requirement to hold the hearing to determine involvement in the alleged offending before the hearing to determine fitness. In a number of cases, the impact of FASD on a young person’s cognitive functioning and serious memory deficits were reasons for charges being dismissed due to the delays that had occurred in such proceedings (see NZ Police v. NL, 2017; NZ Police v. VT, 2015).

  2. 2.

    Solution-focused Justice. The second reason for adopting a more therapeutic and less punitive approach regarding FASD is that from 2007 on, this author (FitzGerald) was presiding over a solution-focused court established in the Auckland Youth Court, known as the Intensive Monitoring Group (IMG), for young people at moderate to high risk of reoffending who had moderate to severe mental health concerns. The mental health criterion was not set with any foresight as to what would be revealed. What we in New Zealand refer to as “solution-focused” courts are the same as the “problem-solving” courts that developed out of Drug Courts started in the United States in the late 1980s. Solution-focused courts in New Zealand involve a non-adversarial, coordinated, inter-agency approach to the cases of young people who meet entry criteria. Many of those who qualified for the IMG were those who had gone through the fitness process and were found to have a mental impairment but however were found fit to stand trial and remain in the Youth Court. Young people with an FASD diagnosis were represented in this group. It also was significant that the Regional Youth Forensic Service (RYFS), which supported the IMG, was able to screen and assess for neurodevelopmental disabilities such as FASD. This was unlike the situation in the adult courts where the forensic service was focused on responding only to persons showing signs of acute mental illness.

    With the benefit of these assessments and input from members of the IMG court team, in particular the health, education, and social work professionals who did not have a direct voice in the conventional adversarial court process, an unmistakable pattern emerged. Alternative explanations were consistently provided for such things as repetitive bad behavior and non-compliance with rules. In addition, alternative options to the sanctions courts normally would impose for such behavior were being suggested, which were shown to be more effective in achieving the desired results. The epiphany these changes caused was a realization that the so-called indicators of criminal recidivism were identical to the indicators of FASD. Experience showed that by following the advice of those who understood the disability and providing structure, support, supervision, keeping things simple, and building on strengths (“the five S’s”), remarkably positive change was possible. Other Youth Court judges have had similar experiences. As a result, the profile of FASD in the Youth Court has continued to increase steadily over the past 10 years in a number of respects.

Awareness of the many effects of FASD on young people, including communication disorders and learning disabilities, has prompted a lot of work in the Youth Court to cater to such needs. For example, providing communication assistance to those who need it and making adaptations in court processes has enabled all young people to participate in a meaningful way. Since 2015, work has been ongoing to modify the ways in which information is conveyed to young people so as to make it comprehensible and enable their proper participation in proceedings, with speech-language therapists now essential members of many Youth Court teams. Unlike the situation in adult courts, FASD diagnostic capacity has continued to grow in the Youth Court, with the necessary training provided to some in the Regional Youth Forensic Services. However, adequate capacity has not yet been established nationwide.

18.4.3 Sentencing

An FASD diagnosis has been a significant factor in sentencing decisions in Youth Court in a variety of ways. In all of the following examples, McGinn was the expert who diagnosed the FASD, whose evidence was accepted by the judges involved in reaching their decisions. McGinn was the expert in the vast majority of cases where evidence of FASD was provided to courts at all levels.

First, imposing a community-based therapeutic sentence as opposed to a residential order was preferred in some cases on the grounds that the high stress and over-stimulating conditions of a residence would cause ongoing agitation, worsen emotional volatility, and lead to youths with FASD mimicking antisocial behaviors. This change also was based on literature that showed punishment does not change brain-based behaviors, so young persons would not learn to behave appropriately through ongoing containment in a residence (NZ Police v. ED, 2014, supra). In fact, community-based therapeutic interventions that provide a high level of structure and support have been found to be much more effective with the FASD population than residential settings (NZ Police v. KM, 2019; NZ Police v. MQ, 2019; NZ Police v. TM, 2019).

Secondly, in some cases the FASD diagnosis was a reason to justify not transferring young people to adult courts for sentencing to imprisonment because punishment was known to be ineffective in changing behaviors of youths with FASD and likely would increase dangerousness. The provision of a high level of structure and support is much more effective (NZ Police v. KM, 2019; NZ Police v. MQ, 2019; NZ Police v. TM, 2019). A third reason was to explain why little, if any, weight could be assigned to deterrence (NZ Police v. MQ, 2019, supra).

Another significant reason for the different response to FASD in the Youth Court is found in the legislation that governs our Youth Justice system (i.e., Oranga Tamariki Act of 1989), which not only requires that victims’ issues be addressed and young people are held accountable but also requires that young persons’ well-being and best interests are a primary consideration and that the underlying causes of their offending are addressed. The scheme of the Act provides for individualized, tailored plans to be made that address all issues and support young people as they move forward on a positive crime-free pathway. The plans are able to be applied in a way that meets the individualized needs of young people with FASD, subject to supports and services being found. There have been numerous cases over the past 10 years or so where this has happened successfully for this population and where plans characterized by the five S’s have been adopted.

18.5 Fetal Alcohol Spectrum Disorder and the Law in Canada

In Canada, criminal courts first began to recognize FASD, often by a different name, in the early 1990s. In 1995, a court sentencing an FASD offender accurately observed there were very few reported cases involving FASD (R. v. Abou, 1995). Even as recently as 2009, authors of an oft-cited scholarly article on Canadian criminal law noted that judges were only “starting to grapple with the problems presented by FASD throughout the criminal law” (Roach & Bailey, 2010, p. 2). Today, there are many hundreds of reported cases involving FASD, the vast majority of which involve the sentencing context. Besides sentencing, FASD also is relevant in at least four other contexts: threshold criminal responsibility, fitness to stand trial, bail, and admissibility of confessions.

18.5.1 Threshold Criminal Responsibility and Fitness to Stand Trial

In the 1990s, the Canadian Criminal Code (Code) (1985) was amended significantly with respect to crime and mental health. One change renamed the term “not guilty by reason of insanity” to “not criminally responsible” (NCR). Despite the name change, the idea is still rooted in the same concept as competence to stand trial in the United States, and both are based upon the historic McNaughten test imported from Britain in the 1800s. In Canada, accused persons are presumed to not suffer from a mental disorder. However, section 16 (1) of the Code states:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

A similar but different test is applied to determine fitness to stand trial. Section 2 of the Code states:

…unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings, (b) understand the possible consequences of the proceedings, or (c) communicate with counsel…

Both tests require that incompetency or inability be based upon a ‘mental disorder.’

Courts in Canada never have had difficulty in finding that FASD constitutes a mental disorder. That said, it would be rare for a diagnosis of FASD alone to support a finding of NCR because rarely would FASD alone deprive one of capacity to know right from wrong or appreciate the nature and quality of one’s actions.Footnote 4 It is more common to find cases in which FASD has been found to support a finding of unfitness to stand trial, although in most of those cases there also is a contributing comorbid condition, and the finding usually is based upon inability to effectively communicate with counsel (e.g., R. v. Dewhurst, 2009). The test that generally is accepted when assessing fitness is described as a limited cognitive capacity test , which is quite a low standard (see R. v. Taylor, 1992). Absent extreme cognitive impairment, a person with FASD rarely will meet this test, which requires only an ability to relate facts, no analytical ability (R. v. Jobb, 2008).

Compared to the United States, there are very few cases in Canada where an NCR or unfitness finding is sought by defense, which likely is due primarily to the fact there is no death penalty in Canada. In many cases, even when jail is a likely outcome in the event no finding of NCR is made, defense counsel will choose not to pursue an NCR finding because a successful application runs the risk of an indeterminate restriction of liberty, potentially for a longer period of time than an offender might serve in a jail sentence.

18.5.2 Bail

There is a presumption in Canada that persons accused of crimes should be released from custody pending trial unless charges are in a defined serious category of offenses, they have demonstrated they are not likely appearing in court if released, or there is a substantial likelihood of offending if released. Persons with FASD typically are poor candidates for release pending trial because they often have a history of breaching court orders or failing to appear in court or both. There is little recorded case law that addresses FASD in relation to bail, partly because these matters involve interim applications where decisions must be made quickly, most often in docket courts. However, persons with FASD appear in bail hearings every day across the country.

Two practices are important for helping people with FASD at bail hearings. First, it is important that judges be made aware of the disorder with as much supporting documentation and relevant evidence as possible. This process goes a long way in showing that an accused person’s track record is not simply a matter of indifference to court orders but rather adaptive impairment due to a medical condition. The second practice, which is most critical, is to present a plan showing the accused person will have assistance in the community that involves structure, support for staying focused on release conditions, and help with appointments (e.g., R. v. T.J.J., 2011). It also is not lost on judges that in many cases, persons with FASD often are quite vulnerable in prisons. In other words, safety while on remand is a legitimate consideration (e.g., R. v. J.H.B., 2012).

Going forward, a recent amendment to the Criminal Code likely will help persons with FASD in the bail context. Although the amendment does not specifically reference FASD, it does instruct judges and peace officers responsible for deciding whether accused persons should be released to “give particular attention to the circumstances of (a) Aboriginal accused, and (b) accused who belong to a vulnerable population that is over-represented in the criminal justice system and who is disadvantaged in obtaining release under the Part” (Canada, Code, 1985, Section 493.1 CC; hereafter CC). The latter provision, and possible the first as well, applies to persons with FASD.

18.5.3 Confessions

As already mentioned—and exemplified in the Pora decision—people with FASD can be very suggestible or gullible and prone to confabulation, which makes them vulnerable to giving false or exaggerated confessions. In Canada, the “confessions rule” has been expanded over time to include factors such as whether voluntariness was overcome by oppressive circumstances, whether a statement was the product of an operating mind (which simply requires accused persons to understand what they are saying and that they are making statements to police officers who can use such statements to their detriment), and whether, in a few cases, police trickery was involved. The leading authority regarding admissibility of confessions in Canada is R. v. Oickle (2000), which emphasizes that when a court is considering whether to admit a statement into evidence, the court must look at the totality of circumstances. Clearly, FASD is a relevant circumstance.

Another area where FASD sometimes underlies applications to exclude self-incriminating evidence is in the context of “Mr. Big scenarios,” which often are used by Canadian police to elicit confessions to undercover officers. Under such scenarios, police lead a target into a relationship with an undercover agent posing as an important figure in an organized crime organization. The target person is told that in order to make sure he is worthy of membership in the criminal organization, he will have to confess something serious to “the boss,” another undercover agent. Often, persons with FASD are easily manipulated under such a scenario. Courts have not found this police tactic is inherently improper but have excluded confessions in circumstances where there is blatant unfairness or doubt about whether the confession is true versus confabulation or bravado (see R. v. J.C., 2015; R. v. J.J.G., 2015; R. v. N.R.R., 2013).

18.5.4 Sentencing

A few basic observations about sentencing in Canada may help to put the courts’ treatment of FASD into context. In Canada, most criminal law is codified in the Criminal Code, which applies across the country. This includes a limited number of sentencing provisions that all judges must follow. The Code sets out the relevant purpose, principles, and objectives of sentencing that judges must apply and prescribes maximum sentences for all offenses and minimum sentences for a few. Beyond that, guidelines and precedents are established by judges. There are no sentencing grids. Relative to other jurisdictions, sentencing judges in Canada have a great deal of latitude.

The cardinal principle in Canadian sentencing law is proportionality: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (S. 718. 1 CC). Aggravating and mitigating factors must be considered (S. 718 CC). A second principle is parity, which means “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (S. 718. 2(b) CC). The Code also incorporates the principle of restraint by providing in S. 718.2(d):

an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Judges are directed to consider specified objectives, which in part include denouncing unlawful conduct, deterring offenders and other persons from committing offenses, supporting offender rehabilitation, and where necessary, separating offenders from society (S. 718 CC).

Three additional factors are important in Canadian sentencing law and potentially important to offenders with FASD. First, if jail sentences are less than 2 years, then a period of probation can be added, but there is no such option for sentences of over 2 years that must be served in a federal penitentiary. Sometimes, courts will adjust sentences one way or the other to allow access to programming that might exist in a particular setting. Second, unique to Canada is the option in some cases to allow sentences to be served in the community rather than jail, subject to strict conditions under a Conditional Sentence Order. Third, a body of law has developed in relation to the sentencing of Indigenous offenders, which flows from the reference to “particular attention to the circumstances of Aboriginal offenders” in s. 718.2(e) above. In a case named R. v. Gladue (1999),Footnote 5 the Supreme Court noted the over-incarceration of Indigenous people and set factors judges must consider when crafting sentences, factors that recognize the systemic intergenerational effects of colonialism. Thus, references to “Gladue factors” have entered the lexicon of sentencing law in Canada, and it is not uncommon to see FASD dealt with in conjunction with Gladue factors.

18.5.5 Proportionality: Fetal Alcohol Spectrum Disorder as a Mitigating Factor

It now is well established that FASD will be considered a mitigating factor by sentencing courts, thereby reducing moral blameworthiness. At least six Courts of Appeal in Canada have now expressly confirmed this principle.Footnote 6 However, there are at least two strong caveats that run through all these authorities: (a) there must be a basis to support diagnosis, and (b) the court must be able to connect the condition to offense conduct. In R. v. Ramsay (2012), the Court emphasized the importance of expert evidence that allows courts to put the relevance of FASD into proper context, stating at paragraph 16:

Crafting a fit sentence for an offender with the cognitive deficits associated with FASD presents at least two identifiable challenges: accurately assessing the moral blameworthiness of the offender in light of the adverse cognitive effects of FASD; and balancing protection of the public against the feasibility of reintegrating the offender into the community through a structured program under adequate supervision. Medical reports assessing the prospect of the offender’s rehabilitation and reintegration into the community are essential to the task and must be carefully analyzed.

The court went on at paragraph 25 to address FASD in the context of proportionality:

The degree of moral blameworthiness must therefore be commensurate with the magnitude of the cognitive deficits attributable to FASD. The more acute these are shown to be, the greater their importance as mitigating factors and the less weight is to be accorded to deterrence and denunciation, all of which will serve to “push the sentence … down the scale of appropriate sentences for similar offences.Footnote 7

This sliding scale approach has been cited by many later authorities, including several courts of appeal. However, one of the risks in this approach is a potential for courts to look for an easily measurable feature, such as IQ, losing sight of the fact that FASD is a diffuse brain injury wherein multiple domains are affected.

The extent to which an FASD diagnosis is apt to result in sentence reduction based on diminished responsibility will vary from case to case, but it is fair to say that courts have not simply paid lip service to FASD as a mitigating factor. For example, in the recent decision of R. v. J.P. (2020), in which the accused person with FASD had conscripted his juvenile nephew’s assistance with two robberies, the sentencing judge did not find the offender’s FASD to be mitigating, but the Court of Appeal disagreed and reduced the sentence by 2 years. In the Friesen decision, the Court of Appeal reduced a manslaughter sentence from 6 to 4 years due to FASD (R. v. Friesen, 2016). In Ramsay, supra, the sentence was not changed upon appeal, but both courts found the neurological deficits in FASD should reduce the sentence by 3.5–5 years from what the prosecution had sought. In R. v. Ramalho (2004), the FASD diagnosis resulted in a Conditional Sentence Order being imposed instead of jail. In R. v. Soosay (2012), one of the author’s decisions, prosecution sought a global sentence of 33 months in the penitentiary for two robberies and a break-and-enter offense, but the Court imposed an 8-month jail sentence, most of which was served by the time of sentence, followed by a short Conditional Sentence Order and probation.

While cases where FASD has been found to reduce moral culpability are plentiful, there also are cases wherein courts have declined to find reduced culpability, either because the defense was unable to show the behavior at issue was connected to the disorder, or there was no formal diagnosis. Two blunt examples of a court declining to find mitigation absent a report, even where indicia were present, can be found in R. v. Halversen (2020) and R. v. Joamie (2013). In some cases where circumstances point to FASD, but there is no formal diagnosis, courts still will proceed on the assumption that the disorder applies (e.g., see R. v. Brown, 2014; R. v. C.O., 2006; R. v. Green, 2013; R. v. Morgan, 2013). It is an error to judicially diagnose an FASD (R. v. Harris, 2002), but it also would be an error to simply ignore a relevant fact.

18.5.6 Denunciation and Deterrence

Apart from reducing moral blameworthiness, a finding of FASD can operate to reduce, if not displace, the relevance of denunciation and deterrence as objectives. Particularly where evidence finds that an offender is unable to learn from mistakes, control impulses, or connect actions to consequences, denunciation and deterrence are less likely to be given weight. This is particularly so with respect to specific deterrence, which is aimed at reducing recidivism. In most cases where an offender keeps reoffending, a court will apply the step principle or jump principle by progressively increasing sentences. However, applying this principle to people who cannot connect their offense behavior with sentencing consequences serves no purpose other than locking the person up.

The effect of FASD on the notion of general deterrence, which does not involve the sentence’s message to the offender but rather to the public and others of like mind, is less clear-cut. Most courts are loathe to say there is no room for general deterrence, but the emphasis on general deterrence usually will be tempered by an FASD diagnosis. There certainly is no room for an exemplary sentence. As stated in R. v. Abou (1995), “it is simply obscene to suggest that a court can properly warn other potential offenders by inflicting a form of punishment upon a handicapped person” (see also R. v. Ayorech, 2002; R. v. Resler, 2011).

18.5.7 Rehabilitation

There are cases in Canada in which courts have placed little weight on rehabilitation as a factor based on the idea that FASD is not curable or is a life-long disability. Although judges still hear this argument periodically, fortunately these notions have been discredited. The most recent denunciation of such thinking can be found in J.P., supra, discussed above in the context of proportionality. J.P. found the sentencing judge was wrong in concluding that rehabilitation only applied when offense behavior was due to curable conditions. Specifically, the higher court found that “the idea of rehabilitation as a sentencing objective has broader meaning than that accorded by the judge” (R. v. J.P., 2020, supra, note 41, at para. 58) and followed another Court of Appeal decision R. v. Friesen (2016), supra, to find (para. 36), “Rehabilitation is not limited to the traditional view of correcting the accused’s attitude to prevent him from recidivating. It can also deal with finding a way to control and modify the behaviour.” Two other decisions that explain how the objective of rehabilitation should apply when sentencing offenders with FASD are R. v. Charlie (2015) and R. v. Kendi (2011, at para. 11).

18.5.8 Parity in Sentencing

It sometimes is argued that reducing a sentence due to FASD can result in disparate sentences. However, the Canadian Supreme Court has pointed out in the seminal case of R. v. Ipeelee (2012, paras. 78–79) that parity does not mean all sentences for similar behavior must be the same but rather there must be a reason for dissimilarity. FASD, if linked to the offending conduct, almost always will be a compelling reason to individualize the sentence.

18.5.9 Dangerous Offenders

There is no question that safety of the community will in many cases trump all other sentencing objectives. In cases where an offender is clearly dangerous, a court may have no choice but to separate the offender from society for a long period of time, even if the reason for dangerousness is beyond the offender’s control. In Canada, there is a provision that allows a court to designate a person as a ‘dangerous offender,’ which may result in an indeterminate jail sentence (Section 753 CC). This designation is rare and would not be made without a lengthy hearing and full psychiatric assessment. Unfortunately, the designation has been applied to many offenders with FASD.

When a person is found to be a dangerous offender, an indeterminate sentence is not automatic. For example, a court might impose a determinate sentence combined with a Long Term Offender Order (LTO), which would allow for extremely close and lengthy monitoring following release. In this context, evidence showing an offender can be treated and managed in the community is paramount. See R. v. M (2000) for an example of how a court was persuaded that FASD was sufficiently manageable in the community to warrant LTO designation rather than an indeterminate sentence (see also R. v. Keenatch, 2019).

18.6 Fetal Alcohol Spectrum Disorder and the Law in the United States

FASD began to present in US courts in the early to mid-1990s as fetal alcohol syndrome (FAS), partial fetal alcohol syndrome (pFAS), and fetal alcohol effects (FAE). In 1994, the Florida Supreme Court recognized the relevance of maternal consumption of alcohol in utero and its dilatory effects upon a developing fetus in Dillbeck v. State (1994). In the late 1990s, the Governor of the State of Washington recognized the potential impact of FASD on state resources and created an Advisory Panel on FAS/FAE, chaired by one of this chapter’s authors. Consistent with the principles articulated in Ruzic, supra, is the discussion in Dillbeck v. State (1994):

Evidence concerning certain alcohol related conditions has long been admissible during the guilt phases of criminal proceedings to show lack of specific intent (and diminished capacity) … (I)f evidence of a self-induced condition such as voluntary intoxication is admissible then so too should be evidence of other commonly understood conditions that are beyond one’s control such as epilepsy … Just as the harmful effect of alcohol on the mature brain of an adult imbiber is a matter within the common understanding, so too is the detrimental effect of this intoxicant on the delicate, evolving brain of a fetus held in utero. As with ‘epilepsy, infancy or senility,’ … we can envision few things more certainly beyond one’s control than the drinking habits of a parent prior to one’s birth. We perceive no significant legal distinction between the condition of epilepsy … and that with alcohol related brain damage in issue here (as) both are specific commonly recognized conditions that are beyond one’s control. (Dillbeck v. State, 1994, p. 217)

In 2000, the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, text revision (DSM-IV-TR; American Psychiatric Association [APA], 2000), recognized FASD was a factor in ID but did not contain a specific mental disorder for the central nervous system (CNS) dysfunction in FASD. The absence of a specific disorder in DSM-IV-TR resulted in mental health professionals diagnosing cognitive disorder not otherwise specified. This omission was addressed in Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5; American Psychiatric Association [APA], 2013), which contained the diagnosis neurodevelopmental disorder associated with prenatal alcohol disorder (ND-PAE) . With ND-PAE, mental health professionals were able to diagnose CNS dysfunction in FASD. DSM-5 also converted the diagnosis “mental retardation” to “intellectual disability,” which is relevant to the subject of FASD.

18.6.1 Effective Advocacy and Presentation of Forensic Evidence

Forensic experts often apply science to answer referral questions and provide facts that are developed and relied upon as evidence. In so doing, forensic experts help judges and juries better understand psycho-legal issues relevant to cases. Although the discussion that follows is based upon experience in US courts, the information applies equally to New Zealand and Canada.

Providing effective advocacy and presentation of effective forensic evidence starts the moment a case first comes to the attention of defense counsel. Capital defense lawyer Cyndy Short (2004) notes:

What is the formula for success? First, you must form teams that are collaborative in nature and in fact. We must seek a wide array of voices and opinions to challenge our point of view, both lawyers and non-lawyers. We must seek the right resources to help us know the client and all his complexities. We must find a way to infiltrate his world so we can put his experiences into the proper context … We must tell our story from the first witness who takes the witness stand after voir dire to the last witness who testifies before the penalty phase closing. (Short, 2004, p. 8)

This perspective is on point. By its very nature, guilt-innocence and mitigation issues are intertwined, requiring counsel in both processes to engage in close working relationships. There is no reason to represent capital or other criminal defense clients differently under today’s bifurcated trial system in the USA (Wartnik, 2011). Yet, many capital defense teams are “teams” in name only. One lawyer prepares guilt/innocence defense, and the other prepares mitigation, as if the two processes involve separate cases … never do the twain meet. This approach does disservice to clients and seriously jeopardizes potential for successful presentation of both guilt-innocence and mitigation phases. One way to bridge the divide is through multidisciplinary teams of diagnostic experts, which happens to be a very effective way to present expert testimony in FASD cases.

18.6.2 Mitigation

The process of developing mitigation evidence in a case must start early to maximize success in educating prosecutors so as to preclude filing or facilitate withdrawal of “death penalty notices.” Mitigation also must start early if there is any hope of influencing favorable evidentiary rulings by judges once proceedings begin. This advice is particularly important in cases involving lesser known (and misunderstood) conditions such as FASD, where a number of evidentiary challenges are likely. Challenges may include competency to stand trial (CST), competency to waive Miranda rights, and competency to waive certain trial rights.

Building a team in capital cases begins with bringing mitigation specialists on board at the beginning of a case, so informed decisions can be made expeditiously regarding choices of experts. For example, should individual experts be retained, or does a case require an ensemble team of experts who are accustomed to working together and have established protocols that are compliant with evidentiary rules governing admission of expert testimony (i.e., Daubert or Frye)? Because FASD assessment is somewhat complex and involves both medical and mental health criteria, multiple experts likely are necessary in high-stakes cases. For example, at least one medical expert is needed to assess physiological characteristics such as facial abnormalities and growth deficit as well as order and evaluate neuroimaging evidence (e.g., magnetic resonance imaging, quantitative electroencephalography, diffusion tensor imaging). Psychologists are necessary to administer psychological testing, conduct adaptive assessments, and review all documented information about a defendant’s lifelong functioning (including offense conduct) to determine consistency with FASD.

A medical diagnosis only addresses whether a defendant has an FASD, which may be fetal alcohol syndrome (FAS), partial FAS (pFAS), or alcohol-related neurodevelopmental disorder (ARND) under Institute of Medicine guidelines (Institute of Medicine [IOM], 1996; Novick Brown, Wartnik, Connor, & Adler, 2010). In cases using the 4-Digit Code (Astley, 2004), ARND is diagnosed as either static-encephalopathy/alcohol exposed (SE/AE) or neurobehavioral disorder/alcohol exposed (ND/AE). SE/AE is equivalent to severe ARND, and ND/AE is equivalent to moderate ARND (Astley, 2013). In cases involving FASD, psychologists or psychiatrists may address mental state, which as noted is diagnosed as ND-PAE under DSM-5, and also may address comorbidities. Psychologists may provide objective test data regarding cognitive limitations and volitional capacity. Psychologists also may assess competency (e.g., CST, Miranda waiver) and address the “nexus” (i.e., poignant connection between FASD diagnosis and subject criminal behavior). The nexus is at the heart of the principle articulated by the court in Ruzic, supra, and the judicially recognized reality of FASD articulated by the Supreme Court of Florida in Dillbeck, supra.

To date, there has been no challenge to a peer-reviewed model for assessing FASD in the forensic context (Novick Brown et al., 2010), which involves a multidisciplinary team comprised of at least three independent FASD experts (i.e., medical doctor, neuropsychologist, and psychologist), each of whom conducts an assessment in his/her respective field of specialization. Review of capital caselaw involving a collaborative multidisciplinary team (often referred to as the gold standard) versus single experts shows the former is the more effective approach. Of course, where offense category and indigent defense funding constraints preclude the expense of multidisciplinary teams, single practitioners also can be effective, particularly with DSM-5. In such cases, diagnostic focus on mental state (e.g., neuropsychological testing with adaptive assessment and ND-PAE diagnosis) and either competency assessment or nexus analysis are key.

Referral question(s) provided to forensic experts frame the general direction of the diagnostic assessment process. Therefore, questions must be crafted carefully to address critical factors that support development of effective presentations. Just because a particular defendant has an FASD does not automatically establish a basis for determining he or she lacks capacity to form mens rea. Similarly, an FASD diagnosis alone is insufficient to justify mitigation at sentencing. In order to effectively present a sound basis for verdicts of not guilty due to lack of mens rea or diminished capacity as well as a finding that the disorder constitutes mitigation at sentencing, it is necessary for forensic experts to clearly explain, in terms understandable to the trier of fact, the nexus between the disorder and criminal behavior(s) at issue. Such testimony can properly prioritize the brain damage in FASD over potentially misleading comorbidities that may be present. A case in point is Williams v. Stirling (2019), which is discussed later.

Effective expert testimony requires strict adherence to local evidentiary rules governing admission of such testimony (e.g., Daubert, Frye, hybrid of the two). Adherence to evidentiary rules affords protection against prosecutorial allegations that protocols used in the diagnostic process constitute “junk science,” which may compel a judicial decision to deny or reject such evidence. Although the junk science objection rarely arises anymore due to the robust nature of FASD science, counsel and experts should be alert to the possibility as a last ditch effort by the prosecution when all else has failed.

18.6.3 Competency to Stand Trial

The first issue likely to be raised once a charge has been filed may be concern on the part of counsel or the court regarding a defendant’s CST. In fact, this concern may arise even before counsel becomes aware of facts suggesting a need for FASD investigation. Whenever a CST concern manifests during case proceedings, judges will either order a competency evaluation or authorize funding for such an evaluation. Whoever initiates the process (i.e., defense counsel or judge) usually formulates specific referral question(s) to be answered by an expert. Framing the referral question(s) needs special care in the case of possible FASD (i.e., factors that may make a defendant incompetent must be linked due to the disorder).

When a forensic expert determines a defendant appears incompetent to stand trial, it is defense counsel’s responsibility to ensure the judge is educated—not only about the specific factors constituting presumed incompetency but also about the reason for those factors (i.e., FASD). Some judges perceive defendants are competent if they are oriented to time and place and little more. A technique that has proven successful in educating judges about the factors in FASD that compromise CST is for defense counsel to ask questions of experts that are aimed at dispelling myths and misconceptions judges may hold about FASD. Properly presented, experts also can provide illustrative examples of conduct that may at first blush cause judges to think defendants are competent (e.g., driving a car, completing high school with special education services, holding entry-level jobs) but in fact are misleading. Lay witnesses (e.g., teachers, coaches, therapists) can add poignant testimony about firsthand observations of defendants struggling with routine tasks in the community to contextualize and support expert testimony. Counsel will need to proactively explore all areas where a client’s relative strengths might be misleading, as one or more of these areas likely will be raised by the prosecution. For example, if a client plays chess, it would be helpful to have the evaluating expert testify that young children are able to play chess, perhaps using a PowerPoint slide depicting an 8-year-old child sitting in front of a chess board.

Standards for competence to stand trial were set by the Supreme Court in Dusky v. U.S. (1960), supra. Dusky determined the test for competence was whether a defendant had “sufficient present ability to consult with his(/her) lawyer with a reasonable degree of rational understanding, and whether he(/she) has a rational as well as factual understanding of the proceedings against him(/her).” In Drope v. Missouri (1975), the Court added an additional prong to the test by requiring defendants also must be able to assist in preparing the defense. Thus, to be competent in the United States, a defendant must be able to (1) consult with a lawyer with a reasonable degree of rational understanding, (2) otherwise assist in the defense, (3) have a rational understanding of the criminal proceedings, and (4) have a factual understanding of the proceedings (White, Meares, & Batchelor, 2014). Incompetence may be due to a change in mental status or additional information that has become known, such as information about functional impairments (Brown, Carter, Haun, Wartnik, & Zapf, 2019).

An important case with respect to CST and FASD is U.S. v. Duhon (2000). Authored by a U.S. District Court magistrate in the context of whether a man with mild ID could be restored to competency, the Court found that while restoration therapy might improve capacity to “rote” learn and recite factual legal information, this type of learning was insufficient to establish competence in someone with permanent brain damage. Rather, competence required rational understanding of the legal process with ability to apply factual knowledge, not just recite it. This case demonstrates that the permanent brain damage found in persons with FASD as well as ID makes it highly unlikely restoration treatment will produce competency.

18.6.4 Intellectual Disability

Persons with FASD may have comorbid ID, even when IQs are above 70. For defendants in this category, it is important for experts to apply the 5-point standard error of measurement (SEM) to the obtained IQ score and also use the Flynn correction (i.e., downward adjustment of IQ by −0.3 points per year since the year the IQ test was developed). During testimony, experts should explain the lack of precision in test scores, including why it is the standard of practice in mental health to adjust test scores using the SEM as well as the Flynn correction for test obsolescence. See Hall v. State (2014) for a cogent analysis of IQ score imprecision and why applying the SEM is essential.

Another effective way to support an ID diagnosis in defendants with FASD and IQs over 70 (+/− 5 points) requires assessment of adaptive functioning, which quantifies performance levels in communication, practical, and social skills that include age equivalencies. For example, based upon such assessment, a defendant with FASD and an IQ of 81 might be equivalent functionally to a 7-year-old child in terms of receptive and expressive communication skills, which is highly relevant to CST. This approach might be used in conjunction with the analysis in Roper v. Simmons (2005) and applicable state law involving child capacity to commit crimes. Child capacity is part of our common law, which has been recognized in many states by statute and case law. For example, in Washington State, State v. Ramer (2004) discusses RCW 9A.04.050, its child capacity statute, and the seven child capacity criteria as they relate to an adult defendant with FASD: (1) nature of the crime, (2) age and maturity, (3) whether the person evidences a desire for secrecy, (4) whether the person told the victim not to tell (if applicable), (5) whether the person engaged in prior conduct similar to that charged, (6) any consequences attached to such prior conduct, and (7) whether the person made any statements acknowledging his/her behavior was wrong and could lead to detention (note 68). This approach works very well as a way to “connect the dots” following testimony regarding a defendant’s adaptive behavior deficits and intellectual performance. [See Chap. 8 in this book for detailed information about adaptive assessment.]

18.6.5 Suggestibility, Confabulation, and False Confession

A study of defendants with ID found 41 individuals who had confessed to crimes they did not commit later were exonerated (Smith, Palloway, Patton, & Beyer, 2008). The study’s authors concluded that people with ID were easily manipulated—an issue that is not included in screening tools that measure adaptive behaviors. Susceptibility to suggestibility presents particular problems for defendants with FASD, whether or not they have comorbid ID. Impairments in FASD, particularly executive function deficits and associated social dysfunction, may lead to false confessions or exaggerated confessions where impaired defendants assume more criminal responsibility than is warranted in misguided efforts to protect codefendants. Memory impairments and suggestibility also may result in factual admissions or inconsistencies presumed to be associated with guilt, which create the potential that evidence of innocence will be ineffective with the jury, thereby reducing the possibility of a not guilty verdict. An inherent obstacle in the context of suggestion and confabulation is that US judges and jurors believe strongly in the integrity of law enforcement interrogation as well as the accuracy of overtly voluntary admissions and confessions. Unless interrogations are videotaped, it often is impossible to analyze the nature of questioning that elicited defendant responses.

A good example of the suggestibility problem is found in Cyntoia Brown v. Tennessee (2014). Despite Brown’s IQ of 134, her ARND diagnosis was associated with a high level of suggestibility (Novick Brown, Gudjonsson, & Connor, 2011), which led trial counsel to recommend she not testify due to the likelihood she would be led during cross-examination to make statements inconsistent with her police statement. Experts involved in the case indicated that because of the memory and communication deficits in her ARND, Brown was highly inclined to confabulate. Notably, in trial settings, habeas corpus hearings, and hearings on petitions for post-trial relief, presentation of the type of evidence presented by the multidisciplinary team in Cyntoia Brown has been demonstratively effective.

Finally, a must-read case is in re: S.M.S, a Youth, 2010 MT 18 (S. Ct. of Montana, 2010). S.M.S., a juvenile, was arrested and questioned by police without notice to or the presence of his parent pursuant to a statute permitting such interrogation. During questioning, S.M.S. confessed to a sexual offense involving a younger child. Although the Supreme Court of Montana reviewed the interrogation video, the court issued an opinion that found the police officer’s actions appropriate but failed to address whether the officer used leading questions. Testimony regarding the severity of S.M.S.’s FASD-associated cognitive impairments was challenged by the State’s expert, and the Court concluded S.M.S.’s confession was voluntary without addressing whether it had been given knowingly and intelligently.

18.6.6 Sentencing

Effectiveness in presenting evidence and recommendations directed at obtaining successful sentencing decisions requires that experts have clear understanding of sentencing laws in case jurisdictions. It is the court’s responsibility to make protection of public safety the first priority in sentencing. This priority requires defense counsel to provide courts with assurance that sentences permitting defendants to remain in the community or serve a minimum time in custody are reasonable and appropriate. This “reasonable and appropriate” requirement means sentences must meet the community safety standard as well as serve the best interests of society and defendants. To be effective, defense counsel depend upon testimony from experienced expert witnesses. Experts must be able to explain clearly and in detail that defendants do not present future risk to the community. Experts also must explain why defendants would not present a danger to the community if provided services, providing treatment plans with recommendations of services to reduce risk.

18.6.6.1 Bail

There are two vehicles in the United States by which defendants may be authorized to remain in the community pending prosecution. First, defendants may be released on personal recognizance, which is based upon certain conditions that include promising to return to court as directed, not being arrested for a new crime, and not having contact with the alleged victim of the charged crime. Second, courts may offer the option of release pending trial under specific conduct conditions, subject to bail paid either in cash or by property bond (e.g., real estate, stocks, bonds). When defendants with FASD are released on either personal recognizance or posting of bail, capacity to abide by court-ordered conditions of conduct largely depends upon their understanding of bail conditions and whether they have support systems for assistance and guidance. To maximize understanding and compliance, conditions should be stated in clear, simple, concrete terms that avoid abstract concepts.

18.6.7 Solution-Focused Justice and Treatment Courts

Treatment courts in the United States use a carrot-or-the-stick approach to divert juvenile offenders and adult defendants out of the criminal justice system. The inducement offered to offenders is that their crimes will be dismissed upon successful completion of specific court-ordered treatments (the carrot). Under this agreement, offenders agree to waive trial and go directly to sentencing if they fail to complete required treatments (the stick). With respect to defendants with FASD who are offered diversion, it is important that the treatment programs use FASD-informed protocols designed to accommodate the learning and adaptive deficits in this population. Otherwise, these defendants likely will get “the stick” because of impairments they have no control over.

18.6.8 Death Penalty

Of the three common law countries we have focused on in this chapter, the United States is the only one that permits defendants who commit capital offenses to be sentenced to death. In 2003, the Supreme Court’s decision in Atkins v. Virginia (2002), supra, precluded the death penalty for persons with ID, indicating such a penalty would constitute cruel and unusual punishment under the Constitution’s Eighth Amendment. However, the Supreme Court left it to the individual states to define ID (referred to as “mental retardation” [MR] at the time of Atkins) and establish methodologies for implementing Atkins. As a result, states adopted a variety of definitions of MR/ID, which created a situation of unequal justice among the states. For example, a defendant convicted of a capital offense with an IQ of 75 could be found to have MR/ID in one state but not in another state. The defendant would not be subject to the death penalty in the former state but could be executed in the latter state.

The above predicament was caused by some states excluding adaptive behavior deficits from consideration unless the IQ prong was first met. Other states required concurrent consideration of adaptive deficits and IQ but varied with respect to the cutoff point in IQ score (e.g., 70 versus 75). In 2013, DSM-5 changed the name, definition, and criteria for ID, requiring concurrent consideration of IQ and adaptive behavior deficits and defining “intellectual” functioning as mostly executive function abilities. The Supreme Court in Hall v. State (2014), supra, adopted DSM-5 changes, finding an IQ score was inherently imprecise and subject to adjustment with the SEM and stating at page 7:

The question this case presents is how intellectual disability must be defined in order to implement these principles and the holding of Atkins. To determine if Florida’s (IQ score) cutoff rule is valid, it is proper to consider the psychiatric and professional studies that elaborate on the purpose and meaning of IQ scores to determine how the scores relate to the holding of Atkins.

Many cases have reinforced the ruling in Hall, supra, and refined how courts handle ID (e.g., Brumfield v. Cain, 2015; Webster v. Warden, 2015; Moore v. Texas, 2017, 2019; Lane v. Alabama, 2019; White v. Kentucky, 2019; and Williams v. Stirling, 2019, supra, note 72). Williams, in particular, is significant as it involves comorbid ID in the context of underlying FASD. In this case, the Fourth District Court of Appeals found FASD was a brain-based disorder with cause-and-effect implications regarding offense conduct. [See Chap. 2 for more discussion about this case.]

Three years after Atkins, the Supreme Court ruled in Roper v. Simmons (2005), supra, that juveniles under age 18 could not be executed as this violated the Constitutional prohibition against cruel and unusual punishment in that juveniles lacked maturity and responsibility due to immature brain development. This case has important implications in the context of FASD, where according to research, brain development is delayed significantly (Treit et al., 2013). Thus, the brain of a 25-year-old with FASD likely is years away from mature development.

18.7 Conclusion

Our criminal courts are the vehicles through which people who have offended against society are held to account. There are both substantive and procedural differences from one country to the next and in the case of the United States, from one state to the next. However, to the extent possible, judges in all jurisdictions try to come up with just results. FASD is a spectrum of disorders that challenges the courts in a unique way. FASD often is invisible—masked or overshadowed by other disorders. FASD defies and belies some of the most fundamental tenets of our traditional justice systems. It often is difficult to access resources to both identify and respond effectively to the condition. And, we are learning it is far more prevalent than we ever would have imagined only a decade ago.

It would be unrealistic to think there ever will be a magic bullet to solve the many problems posed by FASD, but we all must do what we can. We need more capacity to diagnose. We need more widespread understanding of relevant issues at all levels. We need courts to follow the science and where old assumptions are shown to be wrong, set them aside. Perhaps most importantly, professionals in legal systems and in the medical community need to work together so that when people are being held to account for their actions, responses are always based upon fact and not assumptions.