Young Offenders with Fetal Alcohol Spectrum Disorder Demonstrate More Impairment on Psycholegal Abilities

Individuals with a diagnosis of fetal alcohol spectrum disorder (FASD) experience a range of physical, cognitive, and behavioral deficits thought to interfere with their ability to competently navigate the arrest, interrogation, and trial process. This study examined the psycholegal abilities of young offenders with FASD, including their understanding and appreciation of Miranda rights, and adjudication capacities (factual knowledge of criminal procedure, appreciation of the nature and object of the proceedings, ability to participate in a defense and communicate with counsel). Two groups of young offenders (50 with FASD and 50 without prenatal alcohol exposure) completed Grisso’s Instruments for Assessing Understanding and Appreciation of Miranda rights and the Fitness Interview Test—Revised to assess overall rates of impairment in youth with FASD, as well as differences between the groups. Potentially important predictors of psycholegal abilities were also evaluated. Results indicated the majority of young offenders with FASD (90%) showed impairment in at least one psycholegal ability, and rates of impairment were significantly higher than the comparison group. However, considerable within-group variability was observed. IQ and reading comprehension emerged as robust predictors of participants’ psycholegal abilities, while the FASD diagnosis differentiated participants’ scores on the FIT-R. These findings underscore the importance of individualized and comprehensive forensic assessments of psycholegal abilities in this population when warranted. Additional system level strains for this population are discussed, including problems in approaching competency remediation, and the potentially growing need for accommodation and forensic assessments in the face of limited financial and professional resources in legal settings.

fetal alcohol spectrum disorder, psycholegal abilities, juvenile justice

Two groups of young offenders—50 offenders with FASD and 50 offenders with no history of prenatal alcohol exposure—were compared with respect to their scores on two measures of psycholegal abilities: Grisso’s Instruments for Assessing Understanding and Appreciation of Miranda Rights and the Fitness Interview Test – Revised.  In addition, predictors of psycholegal abilities, such as IQ and reading ability, were also examined in these two groups.

After being recruited and providing informed consent to participate, participants were administered a battery of measures, including a semi-structured interview asking about demographic information and previous legal experiences, clinical forensic assessment measures (Grisso’s Miranda Instruments; Fitness Interview Test – Revised; Canadian Rights Comprehension Supplement; Rights Comprehension Confidence), and intellectual and academic testing (WASI; WRAT-4). Scores on the various measures for the offenders with FASD were compared to those obtained by the offenders without prenatal alcohol exposure.

Results indicated that the offenders with FASD had considerable difficulty with comprehension of rights as measured by Grisso’s Instruments for Assessing Understanding and Appreciation of Miranda Rights and the Canadian Rights Comprehension Supplement. More than half (60%) of the offenders with FASD demonstrated impaired performance on the Comprehension of Miranda Rights (defined as earning a “zero” on one or more of the four warnings). Approximately one-third (34%) demonstrated impaired understanding of at least one warning prong on the comparatively easier Comprehension of Miranda Rights-Recognition (CMR-R) instrument. Finally, near three-quarters (72%) demonstrated impaired performance on the Comprehension of Miranda Vocabulary (CMV) instrument.

“Participants with FASD earned significantly lower scores across [Grisso’s] four instruments, relative to the comparison group, indicating that offenders with FASD had substantial difficulty both understanding and appreciating their rights” (p. 15).

“In spite of substantially more impaired performance across Grisso’s four instruments, participants with FASD provided similar mean ratings of both understanding and confidence about waiver decisions relative to the comparison group” (p. 16). While there was a relationship between higher scores on Grisso’s instruments and confidence in the group of offenders without prenatal alcohol exposure, this “relationship did not hold up in the FASD group, suggesting their confidence judgments did not as accurately reflect actual understanding and appreciation of their rights” (p. 16).

With respect to predictors of comprehension, as a general finding “young offenders with weaker intellectual and reading abilities, regardless of diagnostic group [FASD v. no prenatal alcohol exposure], experience significantly more difficulty understanding and appreciating their arrest rights compared with participants with stronger skills in these areas” (p. 17).

Results indicated that participants in the FASD group demonstrated considerable difficulty across the three sections of the FIT-R: Understanding, Appreciation, and Communication.  “In total, 76% of young offenders in the FASD group demonstrated impaired performance on the Understanding scale, 24% had impaired scores on the Appreciation scale, and similarly, 24% had impaired scores on the Communication scale” (p. 17).

“Participants in the FASD group earned significantly lower scores on the FIT-R (with lower scores reflecting a greater degree of impairment) across the three subscales. They had more difficulty understanding elements of the arrest and trial process, appreciating their involvement and possible consequences of the proceedings, and adequately participating in their defense through appropriate communication with counsel, than comparison participants” (p. 17).

“Overall, 76% of young offenders with FASD demonstrated impairments in one or more domains on the FIT-R, compared to only 28% in the comparison group” (p. 17).

Even after controlling for IQ, group membership (FASD v. no prenatal alcohol exposure) “remained a significant predictor of scores on the Understanding and Communication subscales, suggesting that some aspect of the FASD diagnosis contributed to raters’ evaluation on these indicators” (p. 18).

“As a group, a high proportion of young offenders with FASD showed deficits in their psycholegal abilities, and rates of impairment were substantially higher in this group compared with other young offenders” (p. 18).

“Offenders with FASD may not demonstrate flagrant symptoms of mental illness, such as poor orientation or appreciation of the trial process that is delusional in nature. However, they are more likely to have significant cognitive impairments, coupled with behavioral and emotional challenges that may substantially increase their risk of meeting the threshold for a finding of incompetence in court. These findings speak to the need to carefully assess these [competence-related and decisional] capacities in young defendants with an FASD diagnosis” (p. 19).

With respect to remediation of these deficits, it appears that “extra time and effort on the part of lawyers and judges to explain important case-specific concepts and court procedures is likely warranted. Intervention recommendations designed to optimize learning for young offenders with FASD might include using simple language, repeating information, ensuring attention is captured before communicating information, gauging comprehension frequently to assess adequacy of learning, and using applied or multimodal methods of presenting information” (p. 18).

Of course, it is also important to highlight that not all offenders with FASD demonstrated impaired performance on measures of psycholegal ability, thus there is a variability of legal skills within this group of offenders, just as in all adolescents more generally. Thus, while it may be important for police, lawyers, and clinicians to remain mindful of the increased vulnerability of this group of offenders in legal contexts, “it is nevertheless important to undertake an individualized approach when assessing the psycholegal abilities of a young person with FASD” (p. 19).

“A final result worth highlighting is the limited awareness and misplaced confidence young offenders with FASD held in terms of their own legal knowledge, lending mixed support to speculation about whether they have sufficient insight to make decisions about their rights. Though many young offenders with FASD showed compromised understanding and appreciation of their rights, as a group they tended to feel more confident about their decision-making abilities than was warranted. Combined, these factors may increase a young suspect’s risk for making poor decisions based on limited understanding of their rights while expressing misplaced confidence to police or lawyers” (p. 19).

Waiver of Rights in Canada v. United States

“Many young offenders with FASD showed substantial deficits in their arrest rights comprehension, raising the question of whether they faced an increased risk of providing invalid rights waivers without substantial efforts to clarify their meaning and relevance. The U.S. case law does not require extensive clarification efforts from police, Canadian officers are tasked with ensuring that young suspects understand and appreciate arrest warnings in order to secure a knowing and intelligent waiver. Unequipped to identify vulnerable suspects, it remains unclear whether they have the necessary training or skill to accomplish this task. This may constitute an area of inquiry for forensic clinicians who are tasked with assessing the admissibility of waivers and statements in court” (p. 18).

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