[Posted on 4 March, 2020 by Clare Allely]
This blog will discuss the importance of both judges and jurors having an understanding the true nature of autism spectrum disorder (ASD) and how a defendant with this disorder may present during court proceedings. Research has recently highlighted the need and significance for expert insights into ASD and its related symptomology in cases involving defendants with ASD (Freckelton & List, 2009). Specifically, there are a variety of ASD features that may be perceived by jurors, judges and other criminal justice professionals as being indicative of the individual’s guilt or lack of remorse. Defendants with ASD can display a range of behaviours or expressions during the court proceedings which may make them appear bizarre, odd and can be misinterpreted as evidence of their guilt and lack of remorse. Some of the key ones highlighted in this blog include:
- Lack of outward expressions of empathy
- Inappropriate expressions or behaviours
- Odd, unusual or bizarre behaviours
- Unusual ways of speaking
- Unusual eye contact
- Impaired ability to recognise simple conventions in conversation
- Repetitive interest and/or particular obsessions
Lack of outward expressions of empathy
It is now a well-established finding that many individuals with ASD have an impaired ability to appreciate the subjective experiences of others(typically referred to as an impaired Theory of Mind (ToM). As a result,the individual with ASD may not display any outward expressions of empathy or intersubjective resonance. This may make others view them as being cold and calculating. This apparent lack of feeling can lead jurors to consider them to be guilty. This lack of outward expression in some defendants with ASD can have a negative impact on them when it comes to sentencing decisions.
Inappropriate Expressions or Behaviours
Defendants with ASD may also exhibit facial expressions that the jury and judge might consider awkward or inappropriate. For example, they may suddenly laugh out loud (or appear to be excited when describing an offence) when they are undergoing questioning in court about their alleged offence. Or they may suddenly start laughing when the alleged victim is being questioned during court proceedings (Allely & Cooper, 2017). As previously highlighted by Murphy (2018), such odd behaviours in a defendant with ASD during court proceedings may become particularly marked or obvious when they are feeling stressed, are experiencing some type of sensory hypersensitivity and impaired emotional regulation. For most people, a court setting is stressful. For some individuals with ASD, the court setting may be experienced as being particularly stressful and overwhelming. Further, the outward expression does not necessary reflect what the individuals with ASD is feeling or thinking inside. It is of critical importance that criminal justice professionals (e.g., judges, lawyers) and jurors, recognise and have some understanding of how such inappropriate expressions or behaviours are related to the diagnosis of ASD and not necessarily indicative of the individual’s level of remorse or how seriously they are taking the proceedings.
Odd, unusual or bizarre behaviours
Defendants with ASD can sometimes exhibit odd, unusual or bizarre behaviours in the courtroom. For instance, in the State versus Burr, 2007, the accused appeared in court with a bag draped over his head and answered with questions from the Book of Deuteronomy. The Book of Deuteronomy is the fifth book of the Jewish Torah, where it is referred to as “Devarim”. Chapters 1–30 of the book consist of three sermons or speeches delivered to the Israelites by Moses on the plains of Moab, shortly before they enter the Promised Land.
Unusual ways of speaking
A large subgroup of individuals with ASD can have a manner of speaking which may be considered odd or pedantic, for instance, going into excessive and unnecessary detail (and often at great length) when asked a question about something. In addition to the manner of speaking, some individuals with ASD may exhibit verbal utterances which are sudden and unexpected. They may also speak at an increased volume unexpectedly during conversation. An unusual or odd-sounding prosody can also be exhibited in some individuals with ASD. A common expression of this is talking in a monotonous voice.
Unusual eye contact
Research has also indicated that some defendants with ASD can be viewed as having no interest in the court proceedings and/or are viewed as being arrogant. For many individuals with ASD, making and maintaining eye contact with someone can be extremely difficult. This can have potentially negative consequences for a defendant with ASD who has such difficulties. Throughout the trial they may look down at the table in front of them which can lead jurors and criminal justice professionals to assume that they are so ashamed and guilty over what they have done that they are completely unable to look their alleged victim(s) (or the judge, jurors, etc) in the eye. It is well-known that some individuals with ASD will not be able to look others in the eye (not because they are guilty, etc) but because it is a coping mechanism. By looking at something which is inanimate, such as the table in front of them in the courtroom, they are reducing the amount of sensory information they are receiving (which can be even more crucial in an unfamiliar and stressful setting such as a courtroom – where there are lots of people and a lot of people talking). Essentially, they are engaging in this behaviour or strategy because it helps to minimise sensory overload.
It is crucial that jurors and judges are made aware of the diagnosis of ASD and why a defendant with ASD may present in this way and that it is not automatically evidence of guilt or shame over what they have allegedly done (see Allely & Cooper, 2017). It is important to note here that not all individuals with ASD have difficulty in making and maintaining eye contact. Some individuals with ASD may adopt strategies which make the other person think that they are maintaining eye contact when in actuality they are looking at the space between the eyes in order to minimise as much as possible sensory overload. Other individuals with ASD may have unusually intense eye contact. This again can be perceived potentially as challenging in court and, in addition to lack of outward expressions of emotion, can make them appear to be very cold and calculating to jurors and other criminal justice professionals.
Impaired ability to recognise simple conventions in conversation
Some defendants can appear to be rude during court proceedings simply because they struggle to recognise and detect simple conventions in conversation. Take the following scenario. When a lawyer is presenting material or talking during the court proceedings, a defendant with ASD may have difficulty in being able to recognise or detect social cues which signal the end of a conversation, thus leading them to suddenly interrupt or not recognise when they have been asked a question (Murrie et al., 2002).
Repetitive interest and/or particular obsessions
The defendant with ASD may exhibit repetitive interests and/or obsessions throughout the court proceedings. Their alleged criminal offending behaviour may also comprise of their repetitive interests and/or obsessions. Often, these repetitive interests and/or obsessions can be misunderstood or misinterpreted by jurors and criminal justice professionals and they can be viewed as being odd and bizarre as a result (Cea, 2014). A defendant with ASD may shift the topic of the court discussions to a topic which is of interest to them and it can be difficult for anyone to interrupt them. The interest may be one of the individual’s preoccupations. Jurors may perceive this behaviour as an indication that the defendant is deliberately being evasive and trying to avoid answering the question that has been asked of them. As mentioned earlier, they may also go into excessive and unnecessary detail (and often at great length) when asked a question. Their responses may, in addition to being detailed and lengthy, it can also be repetitive (Allely & Cooper, 2017).
The importance of informing the jury of the defendant’s diagnosis of ASD
Given the above, it is therefore of great importance that a jury (and judge) is informed of the defendant’s diagnosis of ASD and how they may appear in court as it may help the jury and other criminal justice professionals to understand the behaviours and expressions they may exhibit during court proceedings (e.g., Cea, 2014).
Judges’ attitudes regarding the sentencing of offenders with high functioning ASD
The attitudes of 21 United States (US) trial judges for the California Superior Court on the sentencing of offenders with high functioning ASD (hfASD) were explored by Berryessa (2016). In order to do this, Berryessa developed a semi-structured 20-question interview protocol. It was reported by 15 of the 21 judges that when making sentencing decisions a defendant’s hfASD diagnosis would be an important consideration and that information regarding a defendant’s diagnosis of hfASD may be useful for judges and jurors in helping them to understand how ASD features or symptomology may have been a contributory factor in the individual’s offending behaviour. 12 of these 15 judges reported considering a diagnosis of hfASD to be a mitigating or an aggravating factor. A diagnosis of hfASD was reported by nine judges as being a potential mitigating factor in sentencing.Of the 21 judges, three viewed hfASD as being a potential aggravating factor.Therefore, presenting information about hfASD in court during sentencing may be detrimental to the individual (e.g., some judges may hold the belief that difficulties with impulse control associated with ASD will likely result in recidivism).
Findings from the study by Berryessa (2016) also revealed that a significant majority of the judges reported that, given that the prison environment may be particularly harmful for some individuals with ASD, they would likely want to try and avoid imprisoning such individuals if possible.Indeed, it has been suggested that long prison sentences may be particularly damaging for an individual with ASD (see Cea, 2015; Allely, 2015; Robertson & McGillivray, 2015;Allely & Cooper, 2017). Judges stated that there is a need for alternatives to imprisonment (diversionary measures) for some individuals with hfASD.However, they were aware that the criminal justice system may not have the resources or the means to offer diversionary measures.
As highlighted by Cea (2014), judges who view ASD as a mitigating factor can take into consideration the severity of a defendant’s ASD when they are making sentencing decisions. This may then result in a hearing on whether the individual needs special treatment as opposed to imprisonment, or whether the individual should receive specific health services during their imprisonment. ASD as a mitigating factor is not the same as an ASD defence. This is due to the fact that no two individuals with ASD are the same (also the fact that ASD is on a spectrum) which presents a real challenge for the ‘bright-line rule’. If ASD is considered a mitigating factor, there is no need for a ‘bright-line rule’ because a judge can take into consideration a range of information in order to determine whether or not the severity of the diagnosis of ASD warrants a lower sentence, including: the facts pertaining to the case, the testimony of the defendant, the defendant’s medical history and testimony from medical experts (Cea, 2014).
It is imperative that defendants with a diagnosis of ASD receive a fair trial(Cooper & Allely, 2017). Having an increased understanding of how defendants with ASD are perceived by legal professionals, jurors, judges and other decision makers within the criminal justice system is crucial (Maras, Marshall & Sands, 2019). During court proceedings,many defendants with a diagnosis of ASD may exhibit behaviours which are perceived by the jurors and other criminal justice professionals as being particularly odd, bizarre or inappropriate. Such behaviours may have a potentially negative impact on the juries’ perception of their ‘guilt’ and the sentencing decision made by the Judge (Allely & Cooper, 2017).