Article deleterious effects of fasd on cst published version

ISSN: 2472-2626 (ONLINE)
Deleterious Effects of Fetal Alcohol Spectrum Disorder on
Competency to Stand Trial
Jerrod Brown, MA, MS, MS, MS, Jeffrey Haun, Psy.D., ABPP, Natalie Novick Brown, PhD, &
Patricia A. Zapf, PhD
Abstract
Fetal Alcohol Spectrum Disorder caused by prenatal exposure to alcohol, produces brain damage
that leads to an array of cognitive, social, and adaptive disabilities. Related symptoms may
include suggestibility and confabulation contributing to inaccurate testimony and false
confessions. Complicating matters, functional impairments associated with the disorder may not
be readily apparent to legal and forensic mental health professionals, which can lead to
misdiagnosis and missed diagnosis. Improving identification of this disorder and conducting
thorough and reliable competency evaluations is important in order to protect the constitutional
rights’ of defendants.
Keywords: Competency to stand trial, Fetal Alcohol Spectrum Disorder (FASD), legal

The Deleterious Effects of Fetal Alcohol Spectrum Disorder/Brown/Haun/Novick Brown/Zapf
www.jghcs.info (2472-2626 ONLINE) JOURNAL OF SPECIAL POPULATIONS, VOLUME 1, NUMBER 1
2
Introduction
Fetal Alcohol Spectrum Disorder (FASD) encompasses a set of disorders that include
Fetal Alcohol Syndrome (FAS), Partial Fetal Alcohol Syndrome (pFAS), Alcohol-Related
Neurodevelopmental Disorder (ARND), Alcohol-Related Birth Defects (ARBD) and, most
recently, Neurodevelopmental Disorder Associated with Prenatal Alcohol Exposure (ND-PAE).
The latter diagnosis is listed in the Diagnostic and Statistical Manual of Mental Health Disorders
(DSM-5) under the Neurodevelopmental Disorders section, with diagnostic criteria included in a
section titled Conditions for Further Study. Fetal Alcohol Spectrum Disorder (FASD) is caused
by prenatal alcohol exposure, which damages the brain and leads to an assortment of cognitive,
social, and adaptive disabilities (Bishop, Gahagan, & Lord, 2007; Brown, Connor, & Adler,
2012). Cognitive deficits in FASD affect executive regulation, attention, short and long-term
memory, emotion regulation, information processing, sensory integration, and long-term
planning (Bishop et al., 2007; Conry & Fast, 2011; Kully-Martens et al., 2012). Executive
deficits may impair decision-making, problem solving, ability to link actions to consequences,
multi-tasking, and the capacity to detect problems and “shift gears” when behavior is leading to a
negative outcome (Roach & Bailey, 2009; Wartnik & Carlson, 2011). Adaptive and social
impairments may affect verbal and non-verbal information processing, pragmatic
communication, attachment patterns, capacity to resist the influence of peers and authority
figures, and the ability to express situation-appropriate emotions (Gralton, 2014; Thiel et al.,
2011; Westrup, 2013). These symptoms often co-occur with other serious mental and physical
health issues, substance abuse disorders, and victimization (Burd, Roberts, Olson, & Odendaal,
2007; Conry & Lane, 2009; Thiel et al., 2011).
Of direct relevance to competency, FASD symptoms render individuals vulnerable to
suggestibility and confabulation (Brown, Gudjonsson, & Connor, 2011; McLachlan, Roesch,
Viljoen, & Douglas, 2014; Mela, 2015). Suggestibility is driven by difficulties in integrating
information provided by others into one's own interpretation of events. Confabulation occurs
when individuals fill in memory gaps by unintentionally producing “recollections” of events that
never occurred (Brown, Gudjonsson, & Connor, 2011; Gudjonsson & Clark, 1986). Many false
memories stem from personal experiences, the media, or the suggestions of others.
Susceptibility to suggestion and confabulation can jeopardize the legal process when such
dynamics lead to inaccurate statements and false confessions to the police and others (e.g.,
mental health evaluators; Brown, Wartnik, Connor, & Adler, 2010; Cox, Clairmont, & Cox,
2008; Roach & Bailey, 2009).
Defendants with FASD may not be competent to stand trial. The U.S. Supreme Court has
held that a criminal defendant is not subject to trial if he or she lacks ability to factually and
rationally understand legal proceedings, rationally consult with counsel, or assist in his or her
defense (see Dusky v. U.S., 1960; Drope v. Missouri, 1975). Many tasks identified as necessary
for competent performance by criminal defendants (see Mossman et al., 2007; Zapf & Roesch,
2009) can be difficult or impossible for someone with cognitive, social, and adaptive deficits to
understand (Kirkish & Sreenivasan, 1999; Melton et al., 2007; Nestor, Daggett, Haycock, &
Price, 1999). In fact, defendants with FASD may be functionally unable to form working
relationships with defense attorneys, make rational legal choices, provide relevant and accurate
testimony, maintain attention during proceedings, and follow courtroom rules (Wartnik, Brown,
& Herrick, 2015). These concerns begin as early as the arrest process, where individuals with
FASD often have difficulty understanding Miranda and other legal rights, the significance of

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pending charges, and determining what information should be shared with authorities and
defense counsel. Potential competency problems may arise for individuals with FASD at any
point during legal proceedings (e.g., plea deals; McLachlan et al., 2014; Mela, 2015; Wartnik,
Brown, & Herrick, 2015). Without proper support, accommodations, and treatment, these
problems are likely to continue after sentencing and into community placement or supervision
(Chartrand & Forbes-Chilibeck, 2003; Douds, Stevens & Sumner, 2012; Gagnier, Moore, &
Green, 2011; Verbrugge, 2003).
Many legal professionals underestimate the prevalence of FASD in the criminal justice-
involved population and the severity of associated symptoms. As a result, those who come into
contact with the criminal justice system are typically undiagnosed or misdiagnosed (Brown et al.,
2015). Because the cognitive symptoms typically manifest in conduct problems, behavioral
symptoms are commonly misattributed to behavioral disorders (i.e., Attention-
Deficit/Hyperactivity Disorder, Autism Spectrum Disorder, Oppositional Defiant Disorder,
Conduct Disorder, and personality disorders), moral failure and willfulness, and/or poor
parenting. A consequence of being undiagnosed or misdiagnosed is a lack of necessary supports
and accommodations shown to reduce the risk of crime, which contributes to unjust outcomes.
Complicating matters, individuals with FASD may mask functional problems and present
without obvious impairments. This is particularly common for those who have average or higher
IQs. It is not uncommon for individuals with FASD to appear unimpaired during brief
interactions (Wartnik, Brown, & Herrick, 2015). As such, legal and forensic mental health
professionals may lack sufficient expertise in detecting FASD. There may be limited access to
childhood records that might better inform physician assessments. To enhance the likelihood of
identifying FASD, a forensic examiner should be prepared to differentiate among confusion,
confabulation, and/or feigning and use interview methods such as the D.E.A.R approach (see
Table 1). Such a nuanced approach may increase the accuracy of information provided by
defendants, which may improve the reliability of competency evaluations.
In sum, improved identification of FASD and reliable competency evaluations are critical
to protecting the constitutional rights of defendants with FASD. Competent and ethical
assessment of these individuals requires mental health and legal professionals to have
fundamental knowledge about the various symptoms and manifestations of FASD. Professionals
should be familiar with how FASD symptoms can impact a defendant’s functional legal abilities.
Better understanding of this vulnerable population is an important first step in improving short
and long-term outcomes and conserving strained resources of the criminal justice system.
Table 1: D.E.A.R.: A Suggested Interviewing Approach for Individuals with FASD
______________________________________________________________________________
D. Direct Language
Because FASD can include language comprehension and other communication deficits,
interactions should:
• Employ simple, concrete, and direct language
• Avoid using idiom, sarcasm, and colloquialisms
• Rely on open-ended questions rather than leading or closed questioning
• Verbally confirm that the interviewee comprehends the conversation
• Conduct a slow-paced, easy-to-follow conversation

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E. Engage Support System
Individuals with FASD are prone to an inability to make legal decisions. Further, they are
suggestible and will often confabulate and provide false statements or confessions. As such, it
is incumbent on an interviewer to:
• Ensure individuals with FASD have adequate representation
• Inquire if interviewee has parent, guardian, mentor, social worker, or lawyer
A. Accommodate Needs
Individuals with FASD are commonly impulsive, inattentive, and easy to intimidate.
Interviewers should:
• Choose a quiet location where distractions are limited
• Avoid making physical contact, even light contact on a shoulder, with the
interviewee
R. Remain Calm
Individuals with FASD often experience emotional dysregulation (e.g., anxiety and anger).
Interviewers should:
• Avoid overwhelming or stressing the interviewee
• Utilize a calm interview-style
____________________________________________________________________________
Adapted from Brown, J., Herrick, S., & Long-McGie, J. (2014). Fetal Alcohol Spectrum Disorders and Offender
Reentry: A Review for Criminal Justice and Mental Health Professionals. Behavioral Health, 1(1), 1-19.
Author Biographies:
Jerrod Brown, MA, MS, MS, MS, is the Treatment Director for Pathways Counseling Center,
Inc. Pathways provides programs and services benefiting individuals impacted by mental illness
and addictions. Jerrod is also the founder and CEO of the American Institute for the Advance-
ment of Forensic Studies (AIAFS), and the Editor-in-Chief of Forensic Scholars Today (FST).
Jerrod holds graduate certificates in Autism Spectrum Disorder (ASD), Other Health Disabilities
(OHD), and Traumatic-Brain Injuries (TBI). Jerrod is certified as a Youth Firesetter
Prevention/Intervention Specialist, Thinking for a Change (T4C) Facilitator, Fetal Alcohol
Spectrum Disorders (FASD) Trainer, and a Problem Gambling Treatment Provider. Jerrod is
currently in the dissertation phase of his doctorate degree program in psychology. Email:
jerrod01234brown@live.com
Jeff Haun, Psy.D., ABPP, completed his doctoral degree in clinical psychology at Pacific Uni-
versity and a postdoctoral fellowship in forensic-clinical psychology through the University of
Washington School of Medicine. He is a licensed psychologist (Minnesota) and is board-
certified in forensic psychology by the American Board of Professional Psychology. He has been
employed as a forensic psychologist at Minnesota State Operated Forensic Services since 2008,
where he conducts a variety of forensic evaluations with juveniles and adults, offers consultation
and training, and provides clinical supervision and training within the State Operated Forensic

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Services Forensic Psychology Fellowship Program. In addition, he provides consultation and
peer review services at PsyBar LLC, and has taught undergraduate courses on an adjunct basis at
Gustavus Adolphus College. Email: drjhaun@gmail.com
Natalie Novick Brown is a licensed psychologist in Washington State, Oregon, Florida, and
Arkansas. In her 20 years of practice, she has specialized in fetal alcohol spectrum disorders,
developmental disabilities, and child development among other things. Dr. Brown obtained her
doctorate in clinical psychology from the University of Washington in Seattle, which included an
18-month internship in forensic evaluation that was followed by a post-doctoral fellowship in
fetal alcohol spectrum disorders (FASD) with Dr. Ann Streissguth (pioneer researcher in the
field). Dr. Brown founded and is the Program Director for FASDExperts
(www.FASDExperts.com), a multidisciplinary group of professionals that conducts forensic
FASD evaluations in capital cases throughout the United States. She is a Clinical Assistant
Professor (courtesy staff) in the University of Washington’s School of Medicine, Department of
Psychiatry and Behavioral Sciences, where she consults with the Fetal Alcohol and Drug Unit on
secondary disabilities and conducts research on FASD. Dr. Brown has published numerous
articles and book chapters on FASD and conducted national and international trainings for legal,
criminal justice, government, and mental health professionals. Email:
natnovickbrown@gmail.com
Patricia A. Zapf obtained her Ph.D. in Clinical Forensic psychology from Simon Fraser
University in Canada and currently holds the position of Professor in the Department of
Psychology at John Jay College of Criminal Justice, The City University of New York. Dr. Zapf
was appointed Fellow of the American Psychological Association and Distinguished Member of
the American Psychology-Law Society in 2006 for outstanding contributions to the field of law
and psychology for her work in competency evaluation. In addition to her research, she serves as
consultant to various criminal justice and policy organizations and has a private practice in
forensic assessment. Email: patricia.zapf@gmail.com
References
Bishop, S., Gahagan, S., & Lord, C. (2007). Re‐examining the core features of autism: a
comparison of autism spectrum disorder and fetal alcohol spectrum disorder. Journal of
Child Psychology and Psychiatry, 48(11), 1111-1121.
Brown, N. N., Connor, P. D., & Adler, R. S. (2012). Conduct-disordered adolescents with Fetal
Alcohol Spectrum Disorder intervention in secure treatment settings. Criminal Justice
and Behavior, 39(6), 770-793.
Brown, N. N., Gudjonsson, G., & Connor, P. (2011). Suggestibility and Fetal Alcohol Spectrum
Disorders: I'll tell you anything you want to hear. The Journal of Psychiatry & Law,
39(1), 39-71.
Brown, J., Herrick, S., & Long-McGie, J. (2014). Fetal Alcohol Spectrum Disorders and
Offender Reentry: A Review for Criminal Justice and Mental Health Professionals.
Behavioral Health, 1(1), 1-19.
Brown, N. N., Burd, L., Grant, T., Edwards, W., Adler, R., & Streissguth, A. (2015). Prenatal
alcohol exposure: An assessment strategy for the legal context. International journal of
law and psychiatry, 42, 144-148.

6
Burd, L., Roberts, D., Olson, M., & Odendaal, H. (2007). Ethanol and the placenta: A review.
Journal of Maternal, Fetal, and Neonatal Medicine, 20, 361-375.
Brown, N. N., Wartnik, A. P., Connor, P. D., & Adler, R. S. (2010). A proposed model standard
for forensic assessment of Fetal Alcohol Spectrum Disorders. The Journal of Psychiatry
& Law, 38(4), 383-418.
Chartrand, L.N, & Forbes-Chilibeck, E.M. (2003). The Sentencing of offenders with fetal
alcohol syndrome. Health Law Journal, 11, 35-70.
Conry, J., & Fast, D. K. (2011). Mental health issues for people with fetal alcohol spectrum
disorders in the criminal justice system. Canadian Journal of Community Mental Health,
29(2), 65-70.
Cox, L. V., Clairmont, D., & Cox, S. (2008). Knowledge and attitudes of criminal justice
professionals in relation to fetal alcohol spectrum disorder. Can J Clin Pharmacol, 15(2),
e306-313.
Douds, A., Stevens, H., & Sumner, W. (2013). Sword or Shield? A Systematic Review of the
Roles FASD Evidence Plays in Judicial Proceedings. Criminal Justice Policy Review,
24(4) 492–509.
Drope v. Missouri, 420 U.S. 162 (1975).
Dusky v. United States, 362 U.S. 402 (1960).
Gagnier, K.R., Moore, T.E., & Green, M. (2011). A need for closer examination of FASD by the
criminal justice system: Has the call been answered? J Popul Ther Clin Pharmacol,
18(2), 426-439.
Gralton, E. (2014). Foetal alcohol spectrum disorder (FASD)–its relevance to forensic adolescent
services. Journal of Intellectual Disabilities and Offending Behaviour, 5(3), 124-137.
Greenspan, S., & Driscoll, J. (2015). Why People with FASD Fall for Manipulative Ploys:
Ethical Limits of Interrogators’ Use of Lies. In M. Nelson & M. Trussler (Eds.), Fetal
Alcohol Spectrum Disorders in Adults: Ethical and Legal Perspectives-An Overview of
FASD for Professionals (pp. 23-38). New York: Springer.
Gudjonsson, G. H., & Clark, N. (1986). Suggestibility in police interrogation: A social
psychological model. Social Behaviour, 1, 83–104.
Kirkish, P., & Sreenivasan, S. (1999). Neuropsychological assessment of competency to stand
trial evaluations: A practical conceptual model. Journal of the American Academy of
Psychiatry and the Law, 27, 101–113.
Kully-Martens, K., Pei, J., Job, J., & Rasmussen, C. (2012). Source monitoring in children with
and without fetal alcohol spectrum disorders. Journal of pediatric psychology, 37(7),
725-735.
McLachlan, K., Roesch, R., Viljoen, J. L., & Douglas, K. S. (2014). Evaluating the psycholegal
abilities of young offenders with Fetal Alcohol Spectrum Disorder. Law and Human
Behavior, 38, 10-22.
Mela, M. (2015). Medico-Legal Interventions in Management of Offenders with Fetal Alcohol
Spectrum Disorders (FASD). In Fetal Alcohol Spectrum Disorders in Adults: Ethical and
Legal Perspectives (pp. 121-138). Springer International Publishing.
Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2007). Psychological evaluations for
the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York,
NY: Guilford Press.

7
Mossman, D., Noffsinger, S. G., Ash, P., Frierson, R. L., Gerbasi, J., Hackett, M., et al. (2007).
AAPL practice guidelines for the forensic psychiatric evaluation of competence to stand
trial. The Journal of the American Academy of Psychiatry and the Law, 35, S3-S75.
Nestor, P. G., Daggett, D., Haycock, J., & Price, M. (1999). Competence to stand trial: A
neuropsychological inquiry. Law and Human Behavior, 23, 397–412.
Roach, K., & Bailey, A. (2009). The relevance of fetal alcohol spectrum disorder and the
criminal law from investigation to sentencing. University of British Columbia Law
Review, 42, 1-68.
Thiel, K. S., Baladerian, N. J., Boyce, K. R., Cantos, O. D., Davis, L. A., Kelly, K., ... & Stream,
J. (2011). Fetal alcohol spectrum disorders and victimization: implications for families,
educators, social services, law enforcement, and the judicial system. The Journal of
Psychiatry & Law, 39(1), 121-157.
Verbrugge, P. (2003). Fetal alcohol spectrum disorder and the youth criminal justice
system: A discussion paper. Ottawa: Department of Justice Canada.
Wartnik, A. P., Brown, J., & Herrick, S. (2015). Evolution of the Diagnosis of Fetal Alcohol
Spectrum Disorder from DSM-IV-TR to DSM-5: The Justice System in the United
States—Time for a Paradigm Shift!. In Fetal Alcohol Spectrum Disorders in Adults:
Ethical and Legal Perspectives (pp. 151-167). Springer International Publishing.
Wartnik, A. P., & Carlson, S. S. (2011). A judicial perspective on issues impacting the trial
courts related to Fetal Alcohol Spectrum Disorders. The Journal of Psychiatry & Law,
39(1), 73-119.
Westrup, S. (2013). Foetal Alcohol Spectrum Disorders: as prevalent as autism?. Educational
Psychology in Practice, 29(3), 309-325.
Zapf, P. A., & Roesch, R. (2009). Evaluation of competence to stand trial. New York: Oxford
University Press.

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