The prevalence of autism in the general population suggests that a judge, a prosecutor, or a defense attorney will encounter one or more autistic individuals in a criminal courtroom during the course of a career. The autistic individual may be involved in a criminal proceeding as a criminal defendant or as a prosecution or defense witness. Whatever role the autistic individual plays in our criminal justice system, the neurological disability itself, regardless of where it falls on the autism spectrum, cannot be allowed to engender bias of any kind against the individual. To prevent this bias within the criminal justice system, judges, prosecutors, and defense counsel must understand autism and take affirmative actions both to identify autistic individuals and to counter both explicit and implicit bias with affirmative actions.
“Autism is a neurological developmental disability with an estimated prevalence of one to two percent of the American and worldwide population. The diversity of the disability means that each person’s individual experience of autism and needs for supports and services can vary widely.” Autism, Off. of Disability Emp’t Pol’y, U.S. Dep’t of Lab. “However, all children, youth, and adults on the autism spectrum experience a common atypical neurological profile with several key traits. Namely, they have atypical language and communication, social interaction, motor coordination and sensory processing, and executive functioning.” Id.
Individuals with autism may have “[p]ersistent deficits in social communication and social interaction across multiple contexts, as manifested by,” for instance, “[d]eficits in social-emotional reciprocity, ranging, for example, from abnormal social approach and failure of normal back-and-forth conversation; to reduced sharing of interests, emotions, or affect; to failure to initiate or respond to social interactions” and “[d]eficits in nonverbal communicative behaviors used for social interaction, ranging, for example, from poorly integrated verbal and nonverbal communication; to abnormalities in eye contact and body language or deficits in understanding and use of gestures; to a total lack of facial expressions and nonverbal communication.” Diagnostic Criteria for 299.00 Autism Spectrum Disorder, in Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5) (2013).
An absence of normal eye contact or a too-prolonged silence in response to a converser will likely cause neurotypical (non-autistic) individuals to misinterpret these signals negatively, even though an autistic individual has no ability to control these mannerisms. Those misinterpretations may cause a law enforcement officer, a prosecutor, a defense attorney, a judge, or a jury to equate these seemingly abnormal signals as indicative of, for instance, an accused’s guilt.
The non-autistic law enforcement officer on the witness stand may refer to an autistic individual’s demeanor and responses during arrest and questioning as extremely reserved, unemotional, robotic, with very short answers, despite the serious nature of the situation. Such a legitimate, accurate description of the autistic accused creates for the jurors, when unaware of the defendant’s autism, at the minimum an unfair inference of guilt of the charged offense. Any prosecution witness could testify accurately that the autistic accused had acted strangely, refusing to look the witness in the eye and barely answering the witness’s questions. Again, a jury without knowledge of the defendant’s autism may find that witness’s evaluation as implicit indicia of guilt.
Even without resort to trial testimony, the defendant’s physical manifestations of autism reflected in even passive courtroom behavior while seated at the defense table will be observed by the jury, who will, if uninformed of the accused’s autism, use those perceptions against the accused. “Why does the accused seem so disinterested in the proceedings or why can’t he look his defense counsel in the eye when they speak at the defense table? He must be guilty.” Those juror thoughts are always a real possibility when the accused is autistic.
Faced with an autistic individual as a client in a criminal case, defense counsel has to evaluate whether the defense must take prophylactic actions with regard to the client’s often-apparent autistic mannerisms and their potential adverse impact on the fact-finder, whether a jury or a judge.
When the theory of the defense does not involve the accused’s autism, a criminal defense attorney may decide it is best not to inform the jury that the defendant is autistic, believing either that the client’s autism is immaterial or that the jury will be prejudiced against the client because she is autistic. If the client’s autism has physical manifestations, such as abnormalities in eye contact and body language, lack of facial expressions, or nonverbal communication, then the defense cannot assume that these adverse indicators will never surface during the client’s trial, even if the accused is not expected to testify. Instead, the defense must devise and implement strategies to neutralize those adverse effects.
Initially, the defense needs to ensure that adequate evidence of the client’s autism is available to submit to the court, when necessary, including a qualified expert’s evaluation. Counsel should be careful to select a professional who is both credentialed and experienced in evaluating individuals on the autism disorder spectrum as opposed to, for example, a primary care physician who may lack such credentials and expertise.
Recent research has “demonstrated that neurotypical adults hold negative implicit attitudes toward autistic adults. These findings may help explain why autistic adults experience discrimination from neurotypical adults.” Cheryl L. Dickter et al., Implicit and Explicit Attitudes Toward Autistic Adults, 2 Autism in Adulthood 144, 145 (2020), https://bit.ly/3okv8dr. Neurotypical adults without positive experiences with autistic individuals do not appreciate or understand how individuals with autism interact with the world and find the obvious manifestations of autism abnormal and difficult to interpret.
A defense attorney should consider obtaining a stipulation of fact from the prosecution that acknowledges to the jury that the accused has autism that results in various mannerisms, behaviors, and demeanors, listing the specific ones the accused has that are pertinent, and that due to autism the defendant cannot control those observable manifestations. This stipulation of fact, with the consent of the court, should be read to the jury either before the prosecution’s opening statement or at the inception of the government’s case-in-chief. This same information could be presented as the stipulated expected testimony of an autism expert. If the prosecution will not agree to such a stipulation, then the defense should request an admonition to the jury before evidence is taken to a similar effect as the stipulation of fact or expected testimony.
A prosecutor calling a witness who is an autistic person should consider these same strategies to ensure that the witness’s autistic manifestations on the witness stand do not undermine the credibility of that person’s testimony on behalf of the government.
A defendant’s autism should be advanced by the defense in a bail hearing for the court’s consideration in determining the circumstances of either pretrial release or custody placement. As autism is a significant aspect of who the defendant is, the defense cannot begin too early to reveal that reality to the court and the prosecution.
Defense counsel should devote a portion of the voir dire to questions to ascertain the experiences and views of the venirepersons as to autism and individuals with autism, whether counsel is permitted to ask questions or only to submit them to the judge to ask. Certain responses could generate challenges for cause by showing bias or reveal a basis for a peremptory challenge.
Another approach includes calling a defense expert witness to testify before the jury as to the source of the defendant’s behavioral manifestations of his autism. This may become necessary particularly when a prosecution witness’s testimony tends, whether intentionally or not, to cast the accused’s autistic behaviors as indicators of guilt. The defense should be entitled to counter that evidence with an expert opinion concerning the potential cause of the accused’s unusual demeanor and behavior. The jury should not be left uninformed that these specific behaviors are likely uncontrollable manifestations of autism rather than implicit telltale signs of guilt.
Courts, as well as defense attorneys representing individuals with autism, must be attuned to the adverse consequences the client’s autism and its manifestations may create at trial. “To implement the presumption [of innocence], courts must be alert to factors that may undermine the fairness of the factfinding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” Estelle v. Williams, 425 U.S. 501, 503 (1976).
Autism covers a diverse spectrum of individuals, behaviors, and challenges that neurotypical individuals do not instinctively recognize and comprehend. Whether the defendant is being sentenced by a judge or a jury, the sentencer needs to take into account the specifics of the defendant’s autism and how it impacts the autistic individual’s ability to cope with everyday life. Expert reports and testimony should be submitted at sentencing addressing how this defendant’s autism should be considered in making all applicable sentencing decisions, such as probation and prison placement.
Defense counsel should not wait until sentencing to reveal to the sentencer that the defendant has autism and how that autism should factor into the sentencing. By addressing the accused’s autism from the inception of the case and throughout the trial, as discussed above, the sentencer will be well aware of the defendant’s autism and its specific pragmatic impact on this autistic individual’s day-to-day life. In that way, the sentencer will not view the reference to the defendant’s autism as a last-minute mitigating factor that did not even merit mentioning in the guilt phase of the trial.
A defendant with autism should not have to traverse the criminal justice system while being stigmatized and discriminated against because of behaviors, demeanor, and conduct beyond the autistic individual’s control due to the ignorance and bias of actors in the system. Defense counsel has an obligation to ascertain the client’s autism and its manifestations and protect that client from uninformed bias and prejudice at all stages of the criminal case. Counsel must reject the urge to bury the client’s autism in hopes it will not become apparent or relevant during the proceedings.