A REVIEW FOR CRIMINAL JUSTICE PROFESSIONALS
Introduction
Confabulation is a commonly observed deficit in individuals with FASD. Simply, the act can be defined as the unintentional communication of falsehoods, incomplete information, and the absence of facts with no intent to deceive.
Confabulation among those with FASD may lead to a host of criminal justice consequences (e.g., false confessions and testimony, suggestibility, wrongful conviction, and subsequent imprisonment). FASD-related criminal justice consequences may also result in diminished comprehension of Miranda rights compromised ability to understand the filed criminal charges, and decreased understanding of the trial process…
Criminal justice professionals are likely to come in contact with individuals with FASD on a regular basis. This may be partially related to deficits in adaptive behavior and executive functioning that are unrelated to IQ. The exact number of individuals with FASD currently in the criminal justice system is unknown; however, it is clear that FASD poses a significant problem for the criminal justice system. Prevalence rates in correctional settings have been reported to range from 10% to as high as 24% in two separate studies. A review of Canadian data found that those with FASD were 19 times more likely to be incarcerated compared to non-FASD-impacted individuals. Another study in the United States found that 60% of the participants with FASD over the age of 12 had been involved with the criminal justice system. Researchers from another study found that this population was 40 times more likely to be involved with the juvenile justice system.
Understanding crucial components of the legal process can be challenging for those with FASD. Deficits associated with a diagnosis of FASD may impact the ability for someone with this condition to understand their Miranda rights, interrogative procedures, and an overall comprehension of legal proceedings. FASD-associated deficits may also contribute to confabulation during various portions of the legal process. Criminal justice professionals should be aware that when interviewing someone with FASD they may unknowingly provide inaccurate information and contradictory statements.
Executive functioning deficits are frequently observed in persons with FASD. Executive functioning deficits can have devastating effects on the individual and their ability to comprehend or communicate effectively. These deficits may also contribute to an increase in confabulation. Prenatal alcohol exposure has been associated with widespread neuropsychological deficits, which may amplify involvement in the criminal justice system. Such deficits can contribute to increased vulnerability, victimization, and subsequent legal involvement. FASD-related deficits can also impact daily functioning, general intelligence, memory, language, attention, learning, visuospatial abilities, fine and gross motor skills, and social and adaptive functioning. Impairments in verbal and nonverbal learning as well as memory, and social skill deficits have also been reported in FASD-affected individuals. Diminished intellectual capacity is another common neurocognitive finding in individuals with FASD.
Confabulation is one of the many issues that can arise as a result of damage through prenatal alcohol exposure. Confabulation is not the same as lying. Confabulation can result in a wide range of errors in memory, including distortions, false realities of events, unintentional embellishments and elaborations of memory, and paraphrasing of existing memories. Confabulation among individuals with FASD can create complex legal issues for the criminal justice system. Unfortunately, professionals are rarely aware of the nature of confabulation and the factors contributing to this secondary consequence of FASD. Those with FASD who are suspects of a crime can be highly vulnerable to wrongful conviction and incarceration. Additionally, individuals with FASD who are witnesses to a crime may incorrectly report details of the event. Criminal justice professionals should be aware of the possible presence of confabulation and the consequences that may follow for individuals with FASD involved in the justice system.
Conclusion
FASD-related consequences may contribute to a host of adverse outcomes associated with the criminal justice system. Compared to non-FASD-impacted persons, those with FASD are more likely to confabulate, lack adequate understanding of Miranda and constitutional rights, and demonstrate impairments in the ability to understand the trial process. The presence of confabulation may be an indicator of a profound cognitive impairment. Criminal justice professionals should be aware that when interviewing someone with FASD, they may unknowingly provide inaccurate information and contradictory statements. As such, confabulation may greatly impact legal decisions and outcomes. Well-intentioned professionals may inadvertently not recognize the signs of confabulation. Confabulation can lead to the acknowledgement of a crime that was not committed. Recognition and knowledge of confabulation during the investigative process may prevent the potential for wrongful arrest, conviction, and subsequent incarceration of an innocent individual.
Jerrod Brown, MA, MS, MS, MS, is the Treatment Director for Pathways Counseling Center Inc. Pathways provides programs and services benefitting individuals impacted by mental illness and addictions. Mr. Brown is also the founder and CEO of the American Institute for the Advancement of Forensic Studies (AIAFS).
Pamela Oberoi MA, is currently the Manager of the Refugee Mental Health Program at Pathways Counseling Center.
Jeffrey Long-McGie, MA, MBA, is a Research Fellow at the AIAFS, and currently training to become a licensed police officer.
Judge Anthony (Tony) Wartnik, BA, JD, was a trial judge for 34 years in King County, Washington.
Erv Winkauf, MA, is a retired 40-year law enforcement veteran with 19 years of teaching experience. He currently serves as Chairperson of the Concordia University Criminal Justice Department in St. Paul.
Sarah Herrick, MA, LP, LPCC, CCFC, has worked with sexual abusers ranging in age from ten to elderly since 1991 in residential, community mental health, and prisons settings. Currently she is working with civilly committed sex offenders.
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