FASD & Mental Health Criminal Defense in Minnesota

Mental health conditions and fetal alcohol spectrum disorders (FASD) can change a Minnesota criminal case at every stage — from whether a person even understands their rights during questioning, to whether they are competent to stand trial, to whether their condition is a defense or a reason for a different sentence. When a disability affects how someone thinks, remembers, or controls impulses, treating the case like any other can lead to a profoundly unjust result. Recognizing these issues early is one of the most important things a defense can do. This page explains the mental-health issues that most often arise in criminal cases, how Minnesota handles competency and mental-illness defenses, and — in detail — what FASD is and why it matters so much in the justice system.

Travis Keil helped co-author What Judges and Attorneys Should Know About FASD — the guidance judges and lawyers use to understand these cases — published by FASD United.

Why Mental Health and Cognitive Disability Matter in a Criminal Case

The criminal system is built around assumptions: that a person understood what they were doing, could control their behavior, can understand the charges against them, and can help their own lawyer. For many people with mental illness or a brain-based disability like FASD, one or more of those assumptions simply does not hold. When that is true, the law provides protections — but only if someone identifies the issue and raises it. A condition that goes unrecognized can look like a bad attitude, a lack of remorse, or even deliberate deception, when the real cause is a disability.

Common Mental Health Issues That Arise in Criminal Cases

Mental health concerns show up in criminal cases constantly, in many forms, including:

• Serious mental illness such as schizophrenia, bipolar disorder, or major depression, which can affect perception, judgment, and behavior.
• Trauma and PTSD, which can shape how a person reacts and how they present in interviews and court.
• Intellectual and developmental disabilities, which affect understanding and decision-making.
• Cognitive and brain-based disabilities like FASD or traumatic brain injury, which affect memory, impulse control, and the ability to connect actions with consequences.
• Substance use disorders, which frequently co-occur with mental illness and complicate both the case and any related treatment.
• Crisis states, where someone is acutely unwell at the time of arrest or questioning.

These conditions can affect a case in several distinct ways at once — the reliability of statements, competency, available defenses, and the right sentence. Each is handled differently under the law.

Competency to Stand Trial

One of the first questions a mental health or cognitive issue raises is competency — whether the person can understand the proceedings and help in their own defense right now. This is separate from guilt and separate from the person's mental state at the time of the alleged offense. If someone cannot understand the case or meaningfully assist their lawyer, the case cannot simply proceed as normal. Minnesota handles this through its statutory competency process, which can lead to evaluation, treatment, civil commitment, and in some situations dismissal. (See our detailed page on competency to stand trial in Minnesota and our complete guide to civil commitment in Minnesota.)

Mental-Illness Defenses

A separate question is whether a mental illness is a defense to the charge. Minnesota recognizes a narrow insanity defense — formally "not guilty by reason of mental illness" — which asks whether, at the time of the offense, the person's mental illness left them unable to understand the nature of their act or that it was wrong. It is a demanding standard, and a successful defense usually leads to commitment rather than release. Mental illness can also be relevant in other, narrower ways, such as whether a person formed the specific intent a charge requires. (See our pages on the insanity defense in Minnesota and criminal intent and mens rea.)

How a Condition Can Affect Confessions and Statements

Mental health and cognitive disabilities are especially important during police questioning. A person in crisis, with an intellectual disability, or with FASD may not truly understand their Miranda rights, may be highly suggestible, and may even agree with an interrogator or supply details just to end a stressful encounter. This is a documented risk: people with FASD, in particular, may make false confessions and may not understand the rights they are waiving. When that happens, the reliability and voluntariness of a statement can and should be challenged. (See our pages on Miranda rights and challenging a confession.)

Mental Health and Sentencing

Even where a condition is not a complete defense, it is often highly relevant at sentencing. A genuine, well-documented mental health or cognitive disability can support arguments for treatment instead of incarceration, for alternative or diversionary dispositions, and for a sentence that accounts for reduced culpability. Courts can consider a disability as a mitigating factor, and the right disposition is sometimes structured treatment and support rather than punishment that the person cannot learn from.

FASD: Fetal Alcohol Spectrum Disorders

FASD is a brain-based disability caused by prenatal alcohol exposure, and it is dramatically overrepresented in the justice system. Because it affects memory, impulse control, understanding of consequences, and the ability to navigate rules and court processes, FASD can shape a criminal case from the first police contact through sentencing — yet it frequently goes unrecognized. This section explains what FASD is, how it affects behavior, and why it matters so much for anyone accused of a crime.

This is an area Travis Keil knows well. Travis Keil has worked with FASD United — a leading national FASD organization — for years. Travis Keil is also the legal-services referral for FASD representation listed in Proof Alliance's FASD resource directory. Few criminal defense lawyers have this depth of focus on how a brain-based disability changes a case.

What FASD Is

FASD (fetal alcohol spectrum disorders) is a group of lifelong, diagnosable medical conditions caused by alcohol exposure before birth that injure the developing brain and affect behavior, memory, impulse control, and judgment. Prenatal alcohol exposure can change the size, structure, and functioning of the developing brain, producing lifelong brain injury and disability. FASD is a spectrum — it does not look the same in everyone, and people with FASD have different strengths and challenges. It is also more common than many people realize: research suggests as many as 1 in 20 children in the United States may have an FASD. There is no cure, because the underlying changes to the brain are permanent — but with understanding, support, and intervention, people with FASD can and do succeed.

How FASD Affects Thinking and Behavior

Because FASD is a brain injury, behaviors that look like willful misconduct are often the direct result of a disability. A central question, as FASD United frames it, is whether an action is purposeful misbehavior or a symptom of brain injury — whether the person can't rather than won't comply. Common areas of difficulty include:

• Understanding consequences and cause-and-effect. Abstract concepts like consequences, responsibility, and time can be genuinely hard to grasp.
• Impulse control. Difficulty resisting an urge — which can lead to conduct the person knows, in the abstract, is wrong.
• Memory. Trouble storing and recalling information, so something understood one day may be gone the next. This can also lead to confabulation — unintentionally filling memory gaps with inaccurate information.
• Information processing. Slower processing of spoken language, so a person may catch only a fraction of what is said.
• Executive functioning. Difficulty planning and sequencing the steps needed to meet a goal — including the "steps" of complying with court conditions.
• Emotional regulation. Trouble managing emotions, which can look like overreaction or take longer to settle.
• Suggestibility and social vulnerability. A tendency to be overly trusting or eager to please, and difficulty reading social cues.

None of these is a matter of choice. They are features of how the brain was affected before birth.

Why People with FASD End Up in the Justice System

The same traits that make daily life harder also raise the risk of justice-system contact. Difficulty understanding consequences, poor impulse control, susceptibility to peer pressure, and trouble with rules and routines can all lead to charges. The numbers are striking: according to FASD United, people with FASD are up to 30 times more likely than their neurotypical peers to have had contact with the justice system. Research has also found that the average age of first justice-system contact can be as young as around 12. The National Council of Juvenile and Family Court Judges has noted that features characteristic of FASD, such as attention deficits, hyperactivity, and impulsivity, are themselves predictors of justice involvement. Yet because FASD is so often under- and misdiagnosed, these symptoms frequently go unrecognized by the professionals working in the legal system.

How FASD Plays Out at Each Stage of a Case

• Police contact and questioning. A person with FASD may not understand their Miranda rights, may be highly suggestible, and may make a false confession — agreeing or supplying details to please an authority figure or end a hard situation.
• Pretrial and release conditions. Memory and executive-functioning problems can make it genuinely difficult to remember court dates and follow bail or release conditions, leading to missed appearances and alleged violations that look intentional but are not. (See our page on what happens at a first court appearance.)
• Probation. The same dynamic continues on probation, where complex conditions can set a person up to "fail" for reasons rooted in disability rather than defiance. (See our pages on probation and probation violation hearings.)
• Competency and defenses. FASD can be relevant to competency and, in some cases, to whether the person could form the intent a charge requires. (See our pages on competency to stand trial and criminal intent and mens rea.)
• Sentencing. FASD can be a powerful mitigating factor, and it points toward structured support and treatment rather than approaches that assume a level of self-control the person does not have.

FASD and Legal Competency

The brain injury associated with FASD creates real hurdles to meeting the standard requirements of legal competency — the ability to understand the proceedings and assist in one's own defense. The American Bar Association has recognized that defendants with FASD may face diminished-capacity issues, noting that such individuals "cannot always form the requisite intent required for certain crimes and do not fully understand the consequences of their actions." When FASD is a possibility, the right step is often a competency evaluation by an FASD-informed provider. Specific deficits that affect competency include:

• Understanding rights and charges. Deficits in abstract reasoning can make it hard to understand complex concepts like Miranda rights, legal consequences, or the specific nature of the charges.
• Suggestibility and false confessions. A strong desire to please authority figures, combined with memory problems, makes confabulation and false confessions a real risk.
• Information processing speed. Slower receptive language means a person may grasp only a fraction of what is said in real time — which can be misread as evasiveness or lack of cooperation.
• Memory and consistency. Trouble storing and recalling information can produce inconsistent accounts and undercut the ability to assist a lawyer.
• Executive functioning. Difficulty planning and sequencing can mean a defendant cannot follow the steps of a legal proceeding or the order in which they happen.

A critical point about competency: because people with FASD may not transfer learning from one setting to another, a defendant might understand a rule in the lawyer's office but be unable to apply it in the courtroom or the community. Understanding something once does not mean it will hold the next day or the next place.

How a "Diminished Capacity" Argument Works in Minnesota

The ABA's diminished-capacity language is important, but it has to be applied carefully in Minnesota, which does not recognize a freestanding "diminished capacity" defense the way some states do. In Minnesota, the practical avenue is intent: psychiatric and neurocognitive evidence can be offered to contest whether the person actually formed the specific intent a particular charge requires. If a charge demands that the State prove a defendant intended a specific result or knew a specific fact, evidence that FASD impaired that capacity can be directly relevant. Separately, FASD can support the narrow insanity defense in appropriate cases, and it is significant at sentencing. So the ABA's point lands in Minnesota not as its own defense, but as a reason to attack specific intent, to consider competency, and to argue for mitigation. (See our pages on criminal intent and mens rea, competency to stand trial, and the insanity defense.)

Why Standard Approaches Can Fail People with FASD

Many rehabilitation and probation programs assume that a person can control their behavior and learn from consequences through cognitive approaches. Research has pointed out that people with FASD often struggle with exactly the attention, executive functioning, and adaptive skills those programs rely on — so a one-size-fits-all approach can set someone up to cycle through the system repeatedly. Recognizing the disability allows for accommodations and dispositions that actually work: concrete instructions, external structure and reminders, treatment, and support rather than escalating punishment.

FASD at Sentencing and in the Courtroom

FASD should be considered a mitigating factor at sentencing, and standard disciplinary approaches often do not work for people with FASD — which is why alternatives to incarceration such as therapy, community-based programs, and other noncustodial measures can be far more meaningful. Several practical points, drawn from FASD United's guidance for legal professionals, matter here:

• Write it down, in plain language. Court orders and treatment plans should be explained verbally and put in writing, in simple, concrete terms.
• Watch for "telling you what you want to hear." Inconsistent memory plus a desire to please can lead a person to answer based on what they think the questioner wants, rather than the facts.
• Account for sensory and stress sensitivities. Sensitivities to light, touch, and sound can cause dysregulation in high-stress settings like a courtroom or jail.
• Identify a support person. Having someone who understands FASD assist the person throughout the process is strongly recommended.
• Ask the core question. Is the behavior purposeful misbehavior, or a symptom of a brain injury where the person can't — rather than won't — comply?

What This Means for a Defense

For these reasons, FASD is a recognized concern within the legal profession itself. In 2012, the American Bar Association passed Resolution 112B urging attorneys and judges to receive training to identify and respond effectively to people with FASD, and accommodation for a cognitive disability like FASD is understood as both a human-rights and a due-process issue. In practice, a defense that recognizes FASD can:

• Scrutinize the reliability and voluntariness of any confession or statement.
• Raise competency where the person cannot meaningfully understand or assist.
• Pursue evaluation and diagnosis to document the disability.
• Present FASD as a mitigating factor and push for alternative or diversionary dispositions and treatment.
• Help structure conditions the person can realistically meet.

The goal is a result that reflects what actually happened and who the person actually is — not a default process that mistakes disability for defiance.

Working With a Minnesota FASD and Mental Health Defense Lawyer

If you are facing charges and you or your loved one has a mental health diagnosis, a developmental or cognitive disability, a history of brain injury, or a possible FASD, it is important to raise it with a defense lawyer early. Many of these conditions are invisible, and many people have never been formally diagnosed. Identifying the issue can open the door to evaluations, defenses, protections around statements, and dispositions built around treatment and support. A Minnesota criminal defense attorney who understands FASD and mental illness — and who knows how these conditions affect questioning, competency, intent, and sentencing — is in a far better position to protect you than one who treats the case like any other.

Key Terms

• FASD: Fetal alcohol spectrum disorders — lifelong brain-based disability from prenatal alcohol exposure.
• Competency to stand trial: Whether a person can understand the case and assist in their defense right now.
• Not guilty by reason of mental illness: Minnesota's narrow insanity defense.
• Confabulation: Unintentionally filling memory gaps with inaccurate information.
• Mitigating factor: A circumstance that can support a lesser or alternative sentence.
• Diversion: An alternative track focused on treatment and support rather than conviction and punishment.

For a justice-system overview for courts, lawyers, families, and professionals, see FASD in the criminal justice system.

Frequently Asked Questions

How do mental health issues affect a criminal case in Minnesota?

They can affect the reliability of statements, whether a person is competent to stand trial, whether a mental-illness defense applies, and what sentence is appropriate. The law provides protections, but only if the issue is identified and raised — which is why telling your lawyer early matters.

What is FASD?

FASD, or fetal alcohol spectrum disorders, is a group of lifelong conditions caused by prenatal alcohol exposure that affect the brain. It can impair memory, impulse control, understanding of consequences, and the ability to follow rules and routines. It is a spectrum, so it looks different in each person, and there is no cure — but support and intervention help.

Why is FASD important in a criminal case?

Because it affects exactly the abilities the justice system assumes a person has. People with FASD may not understand their Miranda rights, may make false confessions, may struggle to remember court dates and conditions, and may act on impulse. Recognizing FASD can support challenges to statements, competency questions, mitigation at sentencing, and treatment-focused dispositions.

Can FASD be used as a defense?

FASD is not by itself a standalone "FASD defense," but it can be highly relevant — to the reliability of confessions, to competency, in some cases to whether a person could form the required intent, and as a significant mitigating factor at sentencing. How it applies depends on the facts and the charge.

What should I do if my loved one has FASD or a mental illness and is facing charges?

Raise it with a defense lawyer as early as possible, even if there is no formal diagnosis yet. Early identification can open the door to evaluation, protections around statements, available defenses, and dispositions built around treatment and support rather than punishment.

Does Keil Defense have experience with FASD cases?

Yes. Travis Keil has worked with FASD United, a leading national FASD organization, for years and co-authored its guidance for legal professionals on FASD in the justice system, and is the legal-services referral for FASD representation listed in Proof Alliance's FASD resource directory. That background means the firm recognizes how a brain-based disability affects a case — from questioning through sentencing — in a way most criminal defense practices do not.

Can I get an FASD evaluation for a criminal case?

Yes. There is no single simple test for FASD; diagnosis requires a trained team and various types of testing. When prenatal alcohol exposure is a possibility, a defense lawyer can request an evaluation by an FASD-informed provider, which can be important for competency, defenses, and sentencing. Getting the right diagnosis can also connect a person and family to services and support.

Do I need a lawyer who understands FASD?

If FASD or another cognitive disability may be involved, yes — it can make a real difference. FASD affects whether someone understood their Miranda rights, whether a confession is reliable, whether they are competent, whether they could form the required intent, and what sentence fits. A lawyer who recognizes these issues can raise protections that a lawyer unfamiliar with FASD may miss entirely.

Updated May 18, 2026 · Law verified as of May 31, 2026. This article is general information about Minnesota law, not legal advice.