CONCEPT Continuing & Professional Studies, Palo Alto University

This webinar on Fetal Alcohol Spectrum Disorder (FASD) and Competency to Stand Trial (CST): A Review for Forensic Evaluators is presented by Jerrod Brown, PhD & Patricia Zapf, PhD.

Fetal Alcohol Spectrum Disorder (FASD) is a permanent disorder caused by prenatal exposure to alcohol. FASD encompasses a range of symptoms including cognitive (e.g., intelligence, executive control, and memory), social (e.g., communication skills and suggestibility), and adaptive (e.g., decision making ability and capacity to solve problems) impairments. In combination with co-occurring disorders (e.g., ADHD, depression, anxiety, and substance use), the identification and assessment of FASD can become a complicated endeavor. To help address these complexities, Neurodevelopmental Disorder Associated with Prenatal Alcohol Exposure (ND-PAE) was identified as a disorder for future study in the Diagnostic and Statistical Manual-5th Edition (American Psychiatric Association, 2013). Nonetheless, many cases of FASD still go unidentified, which is particularly problematic because the disorder increases the likelihood of involvement in the criminal justice system. Further, the symptoms of FASD make it more difficult for an individual to participate in the criminal justice system (i.e., waive rights, enter pleas, stand trial, and abide by community supervision).

Despite limited empirical evidence, it is likely that FASD causes deficits in an individual’s abilities relevant to competence to stand trial (CST). CST refers to a defendant’s capacity to comprehend legal proceedings, make informed legal decisions, serve as a witness, behave in the manner dictated by the court, accurately complete legal paperwork, and contribute to the development of one’s legal defense. Decisions of competency are ultimately made by judges in most jurisdictions. These decisions are made in light of evidence gathered in CST evaluations, which are typically conducted by a psychologist or psychiatrist. These evaluations often include the administration of several validated instruments that assess a range of constructs including cognitive abilities and functioning, psychopathology, and knowledge of the legal system.

The cognitive and social deficits of FASD can complicate the validity of CST evaluations in several ways. First, individuals with FASD often can display average to good verbal skills, which may mask their true developmental level. This highlights the importance of relying on a developmentally sensitive approach when conducting CST evaluations. Second, the combination of deficits in memory and proneness to social pressure might predispose defendants with FASD to suggestibility and confabulation, which could contribute to inaccurate assessments as well as false confessions, false testimony and wrongful convictions. Third, profoundly different impressions of a defendant may be garnered by simply using different styles of interview questions. Specifically, the presence of FASD may not be detected by interviewers who rely on yes/no questions, which could help a defendant conceal these impairments. Fourth, the presence of co-occurring psychiatric disorders and other impairments increase the difficulty of discerning the source of CST deficits. Unfortunately, there is a dearth of professionals who are experts in both CST evaluations and FASD.

Two conceptualizations of CST may be helpful in distinguishing the impact of FASD on CST. Bonnie’s reconceptualization of competence (1992) asserts that competency is a function of the defendant’s capacity to (a) effectively assist in their own legal defense and (b) make informed and valid legal decisions. In contrast, Grisso’s (2003) conceptual model focuses on five components of competency: (1) functional, (2) causal, (3) interactive, (4) judgmental, and (5) dispositional. In combination with the criteria for ND-PAE, these models of CST have the potential to illuminate how FASD can systematically impact different aspects of CST. Evidence of the impact of FASD on CST can be gleaned from several case law, media, and caregiver and professional examples.

The principal aim of this webinar is to familiarize mental health and legal professionals with FASD and its long-ranging impacts on competency to stand trial. Through a review of the current research and case law, participants are trained in four key topics. First, the webinar systematically describes the risk factors, red flag indicators, and symptoms of FASD. During this process, any myths and misconceptions of FASD are dispelled. Second, the webinar reviews major conceptualizations of CST with an eye towards better understanding the different ways that FASD can limit a defendant’s competency to stand trial. Third, the webinar discusses how FASD can impact CST evaluations and highlight ways by which professionals can avoid such pitfalls. Finally, we conclude with an exploration of current gaps in knowledge of FASD and CST and the identification of future research directions.