FASD in the Criminal Justice System: What Judges and Attorneys Should Know

People with fetal alcohol spectrum disorders (FASD) are dramatically overrepresented in the criminal justice system — by some estimates up to 30 times more likely than their peers to have contact with it — yet FASD is routinely unrecognized, undiagnosed, and misunderstood by the professionals deciding their cases. Because there is no simple test for FASD and its effects are often invisible, the responsibility for spotting it frequently falls to judges, attorneys, and caseworkers. When prenatal alcohol exposure is possible, the right move is to request a qualified FASD evaluation and to consider how the disorder bears on competency, intent, suggestibility, sentencing, and the conditions a court imposes.

This page is a working resource for judges, defense attorneys, prosecutors, and the families who navigate these cases. It draws on guidance I co-authored with FASD United, What Judges and Attorneys Should Know about FASD, and on the peer-reviewed and bar-association sources cited below. It is written to be shared — print it, cite it, or hand it to a colleague.

What FASD Is

Fetal alcohol spectrum disorders are a group of diagnosable medical conditions caused by alcohol exposure before birth. The resulting brain differences can produce poor impulse control, emotional dysregulation, slowed information processing, memory problems, and deficits in adaptive and executive functioning. These are not failures of character or effort — they are the downstream effects of a prenatal brain injury, and they are permanent.

Critically, there is no single test for FASD. Diagnosis requires a trained, multidisciplinary team performing several kinds of assessment. Many people living with FASD have normal-range IQs and present as more capable than they are, which is exactly why the disorder is so often missed in a courtroom.

Why FASD Matters at Every Stage of a Case

The effects of FASD map directly onto the moments that decide criminal cases. Understanding the connection changes how a competent professional reads a defendant's behavior.

Understanding rights and charges

Deficits in abstract reasoning make it genuinely difficult for some individuals with FASD to grasp complex concepts — what a Miranda warning actually means, what a particular charge entails, or what the consequences of a plea will be. Apparent understanding ("Yes, I get it") is not reliable evidence of real comprehension.

Suggestibility and false confessions

A strong desire to please authority figures, combined with memory impairment, leaves many people with FASD highly susceptible to confabulation — unintentionally supplying inaccurate information — and to false confessions. Under questioning, a person may answer according to what they believe the questioner wants to hear rather than according to the facts. This is one of the most consequential and least recognized risks in the entire system.

Information processing speed

Slower receptive language means a person may absorb only a fraction of what is said in real time. In a courtroom, that can look like indifference, evasiveness, or lack of cooperation, when it is actually a processing limitation.

Memory and consistency

Difficulty storing and retrieving information can produce inconsistent accounts. Someone may understand a concept one day and have no recollection of it the next — which undermines both their testimony and their ability to assist counsel.

Executive functioning

Competency assumes the ability to plan and to understand sequential steps toward a goal. A defendant with FASD may be unable to track the stages of a proceeding or the order in which they occur, even when each individual concept seems within reach.

FASD and Legal Competency

The brain differences associated with FASD create real hurdles for meeting the standard requirements of competency. The American Bar Association has recognized that because individuals with FASD cannot always form the intent required for certain crimes, and do not fully understand the consequences of their actions, they may face diminished-capacity issues.

In Minnesota, competency to proceed is governed by the rules and statutes substantially revised in recent years (see our separate page on competency to stand trial). FASD belongs squarely in that analysis: a cognitive or developmental impairment that prevents a person from rationally consulting with counsel, understanding the proceedings, or participating in their own defense is a competency problem, whatever its label. Where prenatal alcohol exposure is plausible, counsel should consider raising it — and should know that a party may retain an independent examiner to evaluate it. In some cases, an incompetency finding can also lead to civil commitment after an incompetency finding.

Identifying FASD

Until universal screening exists, identification usually begins with an alert professional. If there is any possibility of prenatal alcohol exposure, judges and attorneys should request an FASD evaluation and consider whether targeted interventions are warranted. Again: there is no quick test, and a normal presentation does not rule FASD out. The cost of a missed diagnosis — a coerced confession, a defendant punished for symptoms they cannot control, a treatment plan designed to fail — is high.

Recommendations for the Courtroom and Beyond

When working with an individual who has, or may have, FASD, the following practices make the process fairer and more effective:

• Treat FASD as a mitigating factor at sentencing. Several jurisdictions now formally recognize FASD as a basis for mitigation; even where statutes are silent, the disorder bears directly on culpability.
• Rethink standard discipline. Conventional punishment is often ineffective for people with FASD. Alternatives to incarceration — therapy, community-based programs, and other noncustodial measures — tend to be more meaningful.
• Account for sensory sensitivities. Light, sound, and touch can dysregulate an individual in high-stress settings like a courtroom or jail.
• Don't assume knowledge transfers between settings. A defendant may understand a rule in the lawyer's office yet fail to apply it in the community or courtroom.
• Read answers with care. Inconsistent memory plus a desire to please can produce responses aimed at the questioner's expectations rather than the truth.
• Ask "can't" versus "won't." Before treating conduct as willful noncompliance, consider whether it is a symptom of a brain injury — whether the person can't rather than won't comply.
• Put it in writing, simply. Court orders and treatment plans should be explained verbally and provided in writing, in plain, concrete language.

Why This Matters for Minnesota Defense

What this means for you or your family member: If you are facing charges and there is any history of prenatal alcohol exposure — including in adoptive or foster situations where the history may be incomplete — it is worth raising early. FASD can shape whether a confession should be suppressed, whether competency is in question, whether intent can be proven, and what a just sentence looks like. These are not abstract points; they change outcomes. A defense that recognizes FASD can build the case around what the evidence actually shows about how a person's brain works.

Official Resource

The guidance summarized here is published by FASD United in the fact sheet What Judges and Attorneys Should Know about FASD, which I co-authored. You can read more at FASDUnited.org, and download the official fact sheet below.

Download: What Judges and Attorneys Should Know about FASD (PDF, FASD United)

Key Terms

• FASD (fetal alcohol spectrum disorders): Diagnosable conditions caused by prenatal alcohol exposure, affecting brain function for life.
• Confabulation: Unintentionally producing inaccurate information — a known risk in FASD that fuels false confessions.
• Diminished capacity: A reduced ability to form criminal intent or appreciate consequences, relevant to culpability.
• Adaptive functioning: The practical, everyday skills needed to meet life's demands — often impaired in FASD.
• Executive functioning: Planning, sequencing, and goal-directed thinking — central to both daily life and legal competency.

Frequently Asked Questions

How common is FASD in the justice system?

People with FASD are sharply overrepresented — some research suggests they are up to 30 times more likely than their peers to have contact with the justice system. Because FASD is under- and misdiagnosed, the true numbers are likely higher than recorded.

Is there a simple test for FASD?

No. Diagnosis requires a trained, multidisciplinary team using several types of assessment. There is no single quick test, and many people with FASD present as more capable than they are, which is why it is so often missed.

How does FASD affect a criminal case?

It can bear on whether a person truly understood their Miranda rights, whether a confession is reliable, whether the defendant is competent to proceed, whether the required criminal intent can be proven, and what a fair sentence looks like. It is relevant from arrest through sentencing.

Can FASD be a mitigating factor at sentencing?

Yes. FASD should be considered as a mitigating factor, and several jurisdictions formally recognize it. Standard punishment is often ineffective for people with FASD; noncustodial alternatives such as therapy and community-based programs are frequently more meaningful.

What should I do if I think a defendant or loved one has FASD?

If prenatal alcohol exposure is possible, raise it early and request a qualified FASD evaluation. Identification often depends on an alert attorney, judge, or family member, because there is no universal screening in place.

Co-authored by Travis Keil, Keil Defense — Chanhassen, Minnesota, with FASD United. Concerned that FASD may be a factor in your case or a loved one's? Call 651-315-3097 for a confidential consultation.

Updated May 18, 2026 · Law verified as of June 8, 2026. This article is general information about Minnesota law, not legal advice.