The ADHD Evaluation
Every evaluation should begin with a comprehensive consultation where the clinician takes a full medical history, interviews the patient, parents, teachers, and other adults who have spent a lot of time with the patient. Since ADHD is heritable, a comprehensive evaluation will include a family history to determine if other family members have had ADHD. Many clinicians use ADHD rating scales to guide the interviews or ask the parent to have others fill out evaluation forms so that a full picture of the patient emerges from eyewitness observations. This is necessary to the diagnosis for two reasons. First, no single definitive test for ADHD exists. Second, in order to make an ADHD diagnosis, the clinician needs to know if the symptoms impair the patient’s functioning in more than one area of life, for instance home, school, church, sports, or work. In some cases, additional tests may be required—particularly if there are co-morbidities present. In the more complex cases, the clinician may also recommend intelligence tests; screening for social, emotional, and psychiatric problems; or tests for learning disabilities or processing problems.
Impacts of ADHD on the Attorney-Client Relationship
ADHD shows great variability in impact and severity. While the origins of ADHD are biological, its severity can be impacted by environment. Some of the more obvious impacts include short attention span, distractibility, time insensitivity, impaired working memory, impulsivity, emotional dysregulation, forgetfulness, losing things, inability to prioritize, or hyperactivity. What does that look like to you as you deal with your client? Consider the client you are speaking to in the courthouse hallway who is constantly scanning their environment and only seems to focus on what you are saying in short spurts. Or the client who just can’t sit still in court. Or the times you asked a client, after reading the police report, “What were you thinking at the time of the incident?” and your client responds, “I don’t remember,” or, “It happened so fast, I just did it,” or, “I was so upset, I just reacted.” We have all encountered these behaviors without realizing they were indicators of ADHD. Now, that you understand what you are seeing, here are seven strategies you can use to effectively deal with your client who has ADHD:
- If your client has a short attention span and is highly distractible, try to have your meetings with them in quiet places with no visual distractions. If your client shows signs of hyperactivity (constant movement), walk and talk is a great strategy especially if you can do it outside.
- If your client is unable to focus for a long meeting, either plan to meet with them in several 20-minute phone calls or 20- to 30-minute in-person meetings. If you must meet for a longer period of time, build in breaks at 20-minute intervals. The breaks can be for refreshments, walking around, playing a game, or anything you can think of to give them time to recharge their brains.
- Ask short narrowly focused open-ended questions. A question like, “Tell me what happened,” addressed to a neurotypical client is likely to elicit the full story. The client with ADHD, who has poor working memory, may give you a vague answer or claim that they don’t remember because the question overwhelms them. Better questions might be, “Where did you go after school?” or, “Who were you with?” or, “What were you doing?” Asking short open-ended but specific and narrowly focused questions will help your client to focus on the information that you seek.
- What if your client can’t get to court on time? People with ADHD are time insensitive. They experience difficulty in estimating time particularly longer intervals. One strategy to help them arrive on time is to break the longer interval (the time it takes to get to court) into its component parts, for example, each task that they must perform until they enter the courtroom. Then ask them to estimate how long each task takes. When you add the task estimates, you might find out that it takes your client two hours to get to court, but they were only allowing an hour. You can record the steps and time estimates on paper, snap a picture of it, and text it to your client as a visual reminder of what needs to be done and how long it takes to get to court on time. You have now educated your client about all the things they have to do to get to court on time and anchored the knowledge that they need to allow for two hours.
- What if your client forgets oral instructions and loses written ones? Ask your client what kind of reminders work for them. Some examples of good strategies include a text the night before or having a trusted friend or family member responsible for getting them up and out on time.
- If you need your client to do several things, understand that a long to do list is likely to seem overwhelming to them. Take the things you need your client to do and assign them one or two things at a time. Don’t assign new tasks until the original tasks are completed. If someone else can perform the tasks for your client, be open to that possibility.
- If your client is on ADHD medication, remind them to take it on the days they meet with you and for all court appearances.
Treatment and Accommodations for ADHD
Once you have a diagnosis in hand you will be able to determine if it raises the immediate need for treatment and accommodations for your client. Treatment for ADHD generally includes medication, cognitive behavioral therapy or ADHD coaching, exercise and mindfulness. Lifestyle changes can also create a more supportive environment for your client, and consequently, ADHD coaching for minors often involves the family. If your client is residing at home pending a hearing, creating a track record demonstrating compliance with the recommended treatments and improved behavior and academic performance can be persuasive evidence that the current placement should continue. The risk here is that if the juvenile does not comply with treatment or their behavior or academic achievement worsens, the case for a placement outside of the home will be that much stronger.
ADHD is a disability under the Americans with Disabilities Act 42 U.S.C. § 12101. As a result, your client may be entitled to reasonable accommodations at school and at every stage of the proceeding from the initial encounters with the police through disposition. Accommodations at school can include smaller classrooms, breaks for physical activity, quiet study halls, seating in the front of the classroom, structure, or assignments divided into manageable chunks. Other accommodations may be appropriate in court or other related settings. For instance, if your client is exhibiting symptoms of hyperactivity, such as getting up and moving at inappropriate times, fidgeting, kicking the chair, drumming their fingers, or chewing on their hair, fingernails, or writing utensils, you may request frequent breaks so that you can take your client for a walk and give them an opportunity to vent that pent up energy. If there are private rooms for attorney client consultations, a short aerobic exercise session (for example, 25 jumping jacks) may help. Other court room accommodations include giving the client a doodle pad where they can take notes or draw, squeeze hand toys to relieve stress, or even exercise balls in place of a standard seat. If the minor is being tried as an adult and there is a jury present, counsel should seek an instruction to the jury that the client has a medical condition and that the jury should disregard their behavior and the accommodations. Finally, because of the client’s limited attention span and problems with working memory, counsel may want to request that all courtroom staff be directed to keep their questions and instructions addressed to the respondent simple and brief. If opposing counsel examines the respondent using lengthy convoluted questions, object, seek a side bar with the judge, and make a record. See, State v. Draine, 936 N.W. 2d 205, 220 (2019). In Draine, the dissent questioned whether a juvenile respondent with low IQ and ADHD had the ability to understand the proceedings, noting his monosyllabic answers to 31 leading questions which included one 93-word question.
ADHD and Defense Strategy
In the course of juvenile court proceedings, the diagnosis of ADHD can impact strategy at all stages of a case. ADHD explains your client’s behavior, but they remain legally responsible for their actions. Even so, evidence of the impacts of ADHD upon your client can be helpful in juvenile court proceedings. Individual juvenile court judges, who are more knowledgeable about ADHD, ODD, and neurological development may be more open to evidence about the impact of ADHD and the benefits of treatment than the appellate courts have been. Bear in mind that at the appellate level, the case law on ADHD in delinquency cases, generally, has not been favorable to people with ADHD.
At the pretrial stage, counsel may want to consider motions relating to a client’s competency. To show incompetency the respondents must show they lack a "sufficient present ability to consult with [their] lawyer with a reasonable degree of rational understanding” and that they lack “a rational as well as factual understanding of the proceedings against” them. Dusky v. United States, 362 U.S. 402 (1960). This standard makes it difficult to demonstrate that ADHD alone renders a juvenile incompetent for the purpose of standing trial. However, there are cases which have held that ADHD coupled with other conditions rendered the respondent not competent to stand trial. Typically, these other factors include low intelligence; ODD, schizophrenia, bipolar disorder, and other mental illnesses; “tender age”; and findings of “neurological immaturity and distractibility consistent with ADHD.” In re Hyrum, 212 Ariz 328 (Ariz. Ct. App. 2006).
If the juvenile respondent has given a statement to the police, counsel will have to consider the voluntariness of that statement and the waiver of the right to remain silent. That inquiry includes the broad principles relevant to statements made in custody: Did the client knowingly waive their rights? The inquiry for the client with ADHD should be expanded to include: Were the respondents rights explained using simple language and short sentences? How long was the client confined or restrained before making the statement? Inactivity for the hyperactive can be a form of duress. If your client’s evaluation notes problems with working memory, you may want to explore that as well. If your client can’t remember something they were just told, how can they voluntarily waive their rights? Do the circumstances under which the statement was given indicate that the client was acting impulsively in waiving their rights? Courts using a totality of the circumstances test to evaluate whether a juvenile has knowingly waived their Miranda rights or voluntarily provided a confession have taken a diagnosis of ADHD into consideration in making that determination. See In re J.J.C, 294 Ill. App. 3d 227 (Ill. App. Ct. 1998); People v. Robinson, 301 Ill. App. 3d 634 (Ill. App. Ct. 1998); In re S.W., 124 A.3d 89 (D.C. 2015) (finding waiver of Miranda rights to be knowing but involuntary.)
In addition to providing assistance in determining whether a respondent’s statement was voluntary, evidence of ADHD may be relevant on issues with regard to the truthfulness of any statement given by the respondent. One of the foremost experts on ADHD, Dr. Russell Barkley noted, “A lack of truthfulness in describing their own ADHD symptoms and delinquent or antisocial actions is common in children and teens with ADHD, making their reports of such highly unreliable and untrustworthy.” Barkley, Russell A., “Truthfulness and ADHD,” The ADHD Report, 2019. Dr. Barkley attributes this to a lack of self-awareness of their behavior and their lack of impulse control that could lead to “lying.” Another study found that ADHD is a predictor for false confessions. The leading explanation (62.2 percent) for providing false confessions was “to cover up for someone else.” Russell A. Barkley, “ADHD and False Confessions,” The ADHD Report, 2020. This is not surprising when viewed in the larger context of the impacts of ADHD. People with ADHD experience boredom as a form of pain. Boredom in a stressful situation without freedom of movement could lead to impulsive behavior to say whatever is needed that holds the possibility of release. In addition, people with ADHD often make mistakes because of their distractibility and forgetfulness
If the juvenile believes that they have made a mistake and that their mistake resulted in the arrest of another, making a false confession to take all of the responsibility for the underlying act is a possible response. Many people with ADHD also experience Rejection Sensitive Dysphoria (RSD), which might also lead them to take the blame for a crime in the belief that this will please others and result in their being accepted. RSD is extreme emotional sensitivity and pain triggered by the perception—real or imagined—of being a disappointment to people important in the sufferer’s life. Additionally, the statements of a teen with ADHD may be unreliable and untrustworthy for reasons such as poor working memory, a desire to please the questioner or frustration with the questioning. State v. Draine, at 936 N.W 2d. at 221. Before concluding that your client is lying when their current statement differs from the one they gave the police, it is important to explore these possible underlying motivators, give them the benefit of the doubt, and inquire further. It is possible that in the stress of a custodial interrogation, their memory failed, they responded to inducements to please the questioner or other persons, or they just needed to move and were willing to do or say anything to regain freedom of movement.
At trial, a diagnosis and history of ADHD can be used to provide context for the client’s behavior and to counter evidence of scienter. As previously noted, ADHD is more of an explanation than an excuse. While ADHD impacts each person differently, your client’s history could be relevant on the issues of intent and premeditation. For instance, if your client has demonstrated an inability to plan, this can be used to show a lack of premeditation. Similarly, evidence of emotional dysregulation and/or impulsivity may be used to support a theory that the client acted on impulse. Other impacts of ADHD that could assist in putting forward a defense include poor social skills or RSD. This can show up as an extreme need for approval and acceptance and a strong desire to please others. This need for social acceptance can explain gang membership as well.
At the posttrial stage, a disposition plan that includes ADHD treatment and accommodations supported by expert testimony regarding the harmful effects of detention may provide a persuasive alternative to incarceration. If the Respondent cannot control their impulses, treatment for ADHD is a critical part of a dispositional plan. The inability to self-regulate or control behavior has been viewed as “the most important factor explaining the developmental origins of antisocial behavior.” A 2017 meta-analysis established empirical evidence of the link between impaired self-control and criminal behavior as even more important than socioeconomic status in predicting crime. Incarceration or placement in any type of coercive environment is likely to exacerbate the symptoms of ADHD. Research also has shown that such a placement without treatment may result in a cycle of more poor choices and negative coping mechanisms or substance abuse.
There is ample precedent for ADHD treatment being upheld as being an appropriate part of a disposition plan. Courts in many states have ordered juvenile respondents to meet with physicians and take prescribed medication to control their ADHD symptoms. See In re J.L.Y., 596 N.W. 2d 692, 695 (Minn. Ct. App. 1999); People v. Calvin S., GO52793@*2 (CA Ct. App. Jun. 27, 2017). Before advocating for or accepting this disposition, counsel should note that many ADHD patients fail to take their prescribed medication, so the client and their parent(s) should be fully supportive of the treatment option because lack of compliance could, later, be used as evidence in aggravation at a dispositional hearing, as a violation of probation or as a justification for placement in a more structured setting where treatment recommendations would be followed. See State v. Blimling, 25 Neb. App. 693, (Neb. Ct. App. 2018); In re William H, 2006 Ct Sup. 2865, 2874 (Conn. Super. Ct. 2006).
The Primary Takeaway
ADHD is a neurological condition that should be taken into consideration in how defense counsel relates to their client and the strategies that they employ.