FASD, Diagnosis, and the Criminal Case: Why a New Minnesota Finding Matters in Court

What the Report Found

A few points from the FASD United executive summary stand out:

• FASD is common. The report cites an estimate that roughly 1 in 20 Americans has an FASD — a group of lifelong, brain-based conditions that can affect learning, impulse control, memory, and social judgment.
• Diagnostic capacity is thin nationwide. The review identified only about 193 providers offering FASD diagnostic services across the entire country — a number the report describes as far short of what current prevalence would require.
• Minnesota leads the nation in the number of diagnostic outlets, with eleven — more than any other state. That is a genuine strength. But "the most" still means a small number relative to need, with real wait times.
• Most diagnostic capacity is built for children. The report notes that the majority of clinics diagnose only up to age 18 or 21, leaving adults — including adults in the justice system — with few places to turn for an age-appropriate assessment.

You can read the full FASD United report through their organization directly. The point here is to connect their public-health finding to something they don't address: what an undiagnosed FASD can mean when a person is accused of a crime.

Why Diagnosis Matters in a Criminal Case

FASD is a brain-based disability, not a character flaw and not an excuse. But it can shape behavior in ways that are directly relevant to how the legal system treats a person. When an FASD has never been diagnosed — which, given the capacity gap above, is common — those effects can be invisible to police, prosecutors, and even courts. Here is where it can matter.

Police Questioning and Confessions

People with an FASD can be highly suggestible, eager to please authority figures, and prone to answering the way they think an officer wants — including agreeing to things that didn't happen. They may not fully grasp a Miranda warning even when they say they do. That combination can produce statements that look voluntary and reliable on the surface but deserve careful scrutiny. (See our pages on Miranda rights and police questioning and challenging a confession.)

Competency to Stand Trial

The legal question of competency is practical: can this person, right now, understand the proceedings and meaningfully assist their attorney? Cognitive impairment from an FASD can bear directly on that question. Minnesota's competency process — including the court-appointed examiner, the option to retain an independent expert, and the "forensic navigator" role created by the state's 2023 reforms — is exactly the framework where an FASD assessment can become decisive. (We cover this in detail on our competency to stand trial page.)

Intent and State of Mind

Many crimes require the state to prove a particular mental state — that a person acted intentionally, knowingly, or with a specific purpose. An FASD can affect impulse control, cause-and-effect reasoning, and the ability to foresee consequences. That doesn't automatically negate intent, but it can be genuinely relevant to what the state must prove. (See our overview of criminal intent and mens rea.)

Sentencing and Dispositions

Perhaps the clearest place diagnosis matters is at sentencing. Understanding that a person has a lifelong, brain-based disability — rather than reading their conduct as defiance or indifference — can reshape what an appropriate, workable disposition looks like. It can inform arguments for treatment-oriented outcomes, appropriate supervision conditions, and dispositions a person can actually succeed on rather than predictably fail. A person set up to fail on conditions they cannot meet is a person headed back to court.

The Adult Gap Is a Justice-System Problem

The report's finding that most diagnostic capacity stops at age 18 or 21 is especially significant for criminal defense. The people who most need an assessment to be understood by a court are frequently adults — and they are precisely the group with the fewest places to get evaluated. That gap can mean a person's disability is never named at the moment it matters most.

This is why the defense role matters. Recognizing the possibility of an FASD, connecting a client with a qualified evaluation, and presenting that information to the court is often the difference between a case that is understood and one that is not.

What This Means If FASD May Be Part of Your Case

If you or a family member is facing charges and prenatal alcohol exposure, a developmental disability, or a history of learning and behavioral challenges may be part of the picture, it is worth raising early with a defense attorney. The right assessment can inform competency, questioning, intent, and sentencing — but only if someone recognizes the question and pursues it.

Travis Keil has worked on FASD and the justice system as a co-author of legal-professional guidance and is listed in the Proof Alliance FASD directory. If FASD may be relevant to a Minnesota criminal case in Chanhassen or anywhere in the state, Keil Defense can help. Call (651) 315-3097 for a confidential consultation.