Fetal alcohol spectrum disorder and confabulation in psycholegal settings: A beginner’s guide for criminal justice, forensic mental health, and legal interviewers

Abstract

Fetal alcohol spectrum disorders (FASD) are neurodevelopmental/neurobehavioral conditions caused by prenatal alcohol exposure (PAE). Impairments caused by PAE contribute to the over‐representation of individuals with FASD in the United States juvenile and adult criminal justice systems. These same impairments can equally impact on individuals with FASD who are witnesses to or victims of crime who also have to navigate the complexities of the criminal justice system. Difficulties include increased susceptibility to confabulation throughout the legal process that, in turn, can contribute to increased rates of poor outcomes including false confessions and wrongful convictions. Individuals with FASD are particularity at risk of confabulation when they are subjected to tactics, such as stressful and anxiety‐provoking situations, threats, and leading, suggestive, or coercive questioning. Many professionals in the forensic context are unfamiliar with FASD or related confabulation risk and may unintentionally utilize tactics that intensify impacts of pre‐existing impairment. This article serves as a beginner’s guide for professionals working in criminal justice settings by (a) providing research‐based overviews of FASD and confabulation, (b) describing how FASD may lead to confabulation, and (c) suggesting ways that professionals can modify protocols when interacting with individuals with FASD. Suggestions in this article hold the potential to decrease the risk of confabulation in the criminal justice system and decrease problematic outcomes, such as false confessions and wrongful convictions among individuals with FASD.

Current considerations for fetal alcohol spectrum disorders: identification to intervention

“…The wide continuum of potential outcomes associated with prenatal alcohol exposure leads to a complex clinical presentation that necessitates development of targeted evidence-based interventions [52,53]. Focus has been on cognitive (particularly executive function, inhibitory control), academic (predominately math), behavioral (mood, secondary diagnoses), legal/justice (overrepresented and prone to confabulation, [54]), adaptive function (daily living skills, social skills, care facilities) and health outcomes (sleep, nutrition, cardiac, medication). In addition to some of the few FASD-specific interventions (e.g.…”

Intellectual, Developmental, and Physical Disabilities in U.S. Legal Settings: A Scoping Review

“…Relatedly, there was an article that discussed FASD in the context of sexual offense charges, raising questions about the ability of individuals with FASD to understand appropriate sexual behavior and consent to sexual activity (McMurtrie, 2011). Other themes in the FASD literature included the likelihood of individuals with FASD to confabulate (i.e., fill in gaps in one's recollection with fabricated elements without a specific intent to deceive) and strategies to reduce confabulation (e.g., using direct language, avoiding pressure; Brown, Jonason, et al, 2022); the value of expert evaluations of individuals with FASD in court contexts (Fast and Conry, 2009); and some of the challenges to meeting the needs of individuals with FASD in legal settings, such as the lack of formal diagnosis or limits to the supportive services available to this population (Jeffery, 2010).…”

“…• discussing how legal professionals, such as police officers, judges, lawyers, and forensic evaluators, should interact with people with intellectual and developmental disabilities (e.g., using clear and precise language, avoiding leading questions; Macvaugh and Cunningham, 2009;Guina et al, 2022;Flynn and Martinez, 2015;Brown et al, 2022) • providing training to legal professionals on how to most effectively work with individuals with disabilities (Callow, Tahir, and Feldman, 2017;Li, Williams, and Barry, 2022;Lorr, 2022;Schatz, 2018) There were very few studies that formally evaluated the effectiveness of these types of programs or accommodations.…”