Investigation stage

In questioning by police, research has shown that a victim or witness with FASD “may believe that the correct response must be whatever answer the questioner may appear to want, whether or not the response is factually true.” This observation also relates to accused persons with FASD. 

For example, during interviews, an accused or witnesses with FASD “may have a tendency to misrepresent or confabulate. They have very poor memories, they are very suggestible, and they are often eager to please authority figures. As a result, they may present multiple versions of events, or they may agree to whichever version of events they think the interviewer wants to hear. False confessions and false accusations are not uncommon.” 

Accordingly, lawyers representing a client with FASD should be fully briefed on the circumstances surrounding their client’s encounter with police. Lawyers may need to explain police contacts and interrogations in the context of the client’s disorder. 

This should also be a live issue for police in charge of questioning witnesses or victims.  

Confessions - Charter of Rights and Freedoms and voluntariness

The communication and information processing challenges for people with FASD may affect their ability to understand the nature and scope of their rights under the Charter of Rights and Freedom (Charter), such as their right to counsel and their right to remain silent.

Research has shown that “high waiver standards are supported by sample Supreme Court authority and in some cases where a person with FASD talks to the police without consulting counsel, they may not knowingly and intelligently waive their right to counsel.”  [LINK TO Roach, K. and Bailey, A. 2009].

In cases such as R. v. Henry and R. v. Sawchuk, FASD and the cognitive disabilities that come with it have been the basis for the exclusion of incriminating statements made to police and denial of valid waiver. 

Depending on the facts of your case and the depth of your client’s impairments, you might also be able to argue that police should have better helped protect the rights of people with FASD. Some questions to look at when reviewing interrogation recordings or transcripts:

  • Was your client simply mimicking what the police officer said to them?
  • Did the police take any steps to ask questions that required reasoning or understanding, such as “What does it mean to waive your rights?” or “What is a lawyer?”

This is important because FASD affected individuals may be able to repeat something they did not necessarily understand. See our Policing section for other examples of FASD-informed questioning techniques – coming in September 2020. [NOT UPLOADED YET]

Problems with voluntary statements

People with FASD may not be able to understand what waiving their rights means. As a result, they may waive their rights without understanding the potential consequences. They may also have language or cognitive impairments that interfere with their ability to communicate or listen. As one report notes, “Some people with FASD think of waiving rights in terms of waving hands, that’s how concrete they are.”

An accused person with FASD may not understand the words used in the reading of their Charter rights, (i.e. may not know that “counsel” means “lawyer”).

People with FASD also may be more eager to talk in order to be seen to be helpful to police. A typical scenario:

With a warrant out for his arrest, a person with FASD turned himself in to the police. He called his lawyer, who of course advised him to say nothing until the lawyer arrived.  By the time the lawyer got there, the person with FASD had provided a video statement.  (A. wanted to be helpful and had no sense of the need to listen to and follow his lawyer’s advice.)

Someone with FASD may also be prone to “confabulation” – blending their lived experience with things they have been told or have seen on television or in movies, so that fictional elements become fact to them. This can be an effect of FASD-related disabilities, and should not be confused with lying. It’s important to realize that people’s stories could be subject to change and influence in ways you might not expect. 

See the “Trial” section below for authorities and suggestions on how the cognitive difficulties associated with FASD could affect a client’s exercise of Charter rights under ss. 10(b). [LINK TO TRAIL SECTION within this document]

Potential for false confessions

People with FASD, and in particular youth, are vulnerable to false confession.  Many have trouble controlling impulsive behaviour, struggle with poor communication skills and are easily confused under pressure.  They may not understand or hear the entire legal caution, become “chatty” after arrest and say self-incriminating things. They are likely to get “brain freeze” after the first few words and understand nothing further, especially if someone is speaking quickly.

People with FASD are also frequently characterized as hyper-suggestible. They may, upon repeated questioning, incorporate suggestions into their own retelling of what happened. 

People with FASD are very susceptible to certain types of interrogation methods commonly used by police, for example:

  • “minimization” – where the interrogator downplays the seriousness of the offence
  • “false friends” methods - where the investigator purports to just want to help out the accused

This is because they may trust and want to please people in authority. In questioning by police, a victim or witness with FASD “may believe that the correct response must be whatever answer the questioner may appear to want, whether or not the response is factually true.” 

If you suspect that the person you represent may have FASD and has made a confession, consider first whether there is sufficient evidence of a crime to begin with.  If yes, then consider whether:

  • the accused confessed simply to please or appease the interrogator
  • the accused confessed to something he / she does not have the capacity to remember
  • the accused understood the ramifications of the confession
  • the people who conducted or were present at the interrogation were familiar with the signs and symptoms of FASD.

Problems facing witnesses and victims with FASD

In questioning by police, research has shown that a victim or witness with FASD “may believe that the correct response must be whatever answer the questioner may appear to want, whether or not the response is factually true.” 

Witnesses and victims with FASD face the same difficulties with adaptive behaviour, language, attention, reasoning and memory as accused individuals with FASD. 

When questioning victims or witnesses with FASD or preparing them to testify at trial:

  • Use open-ended questions
  • Avoid figures of speech
  • Do not lead them in a particular direction
  • Let them tell their story
  • Be patient

It’s also a good idea to take frequent breaks when working with people with FASD.  They will tire easily.