A REVIEW FOR CRIMINAL JUSTICE PROFESSIONALS
Confabulation is a commonly observed deficit in individuals with FASD. Simply, the act can be defined as the unintentional communication of falsehoods, incomplete information, and the absence of facts with no intent to deceive.
Confabulation among those with FASD may lead to a host of criminal justice consequences (e.g., false confessions and testimony, suggestibility, wrongful conviction, and subsequent imprisonment). FASD-related criminal justice consequences may also result in diminished comprehension of Miranda rights compromised ability to understand the filed criminal charges, and decreased understanding of the trial process…
Criminal justice professionals are likely to come in contact with individuals with FASD on a regular basis. This may be partially related to deficits in adaptive behavior and executive functioning that are unrelated to IQ. The exact number of individuals with FASD currently in the criminal justice system is unknown; however, it is clear that FASD poses a significant problem for the criminal justice system. Prevalence rates in correctional settings have been reported to range from 10% to as high as 24% in two separate studies. A review of Canadian data found that those with FASD were 19 times more likely to be incarcerated compared to non-FASD-impacted individuals. Another study in the United States found that 60% of the participants with FASD over the age of 12 had been involved with the criminal justice system. Researchers from another study found that this population was 40 times more likely to be involved with the juvenile justice system.
Understanding crucial components of the legal process can be challenging for those with FASD. Deficits associated with a diagnosis of FASD may impact the ability for someone with this condition to understand their Miranda rights, interrogative procedures, and an overall comprehension of legal proceedings. FASD-associated deficits may also contribute to confabulation during various portions of the legal process. Criminal justice professionals should be aware that when interviewing someone with FASD they may unknowingly provide inaccurate information and contradictory statements.
Executive functioning deficits are frequently observed in persons with FASD. Executive functioning deficits can have devastating effects on the individual and their ability to comprehend or communicate effectively. These deficits may also contribute to an increase in confabulation. Prenatal alcohol exposure has been associated with widespread neuropsychological deficits, which may amplify involvement in the criminal justice system. Such deficits can contribute to increased vulnerability, victimization, and subsequent legal involvement. FASD-related deficits can also impact daily functioning, general intelligence, memory, language, attention, learning, visuospatial abilities, fine and gross motor skills, and social and adaptive functioning. Impairments in verbal and nonverbal learning as well as memory, and social skill deficits have also been reported in FASD-affected individuals. Diminished intellectual capacity is another common neurocognitive finding in individuals with FASD.
Confabulation is one of the many issues that can arise as a result of damage through prenatal alcohol exposure. Confabulation is not the same as lying. Confabulation can result in a wide range of errors in memory, including distortions, false realities of events, unintentional embellishments and elaborations of memory, and paraphrasing of existing memories. Confabulation among individuals with FASD can create complex legal issues for the criminal justice system. Unfortunately, professionals are rarely aware of the nature of confabulation and the factors contributing to this secondary consequence of FASD. Those with FASD who are suspects of a crime can be highly vulnerable to wrongful conviction and incarceration. Additionally, individuals with FASD who are witnesses to a crime may incorrectly report details of the event. Criminal justice professionals should be aware of the possible presence of confabulation and the consequences that may follow for individuals with FASD involved in the justice system.
FASD-related consequences may contribute to a host of adverse outcomes associated with the criminal justice system. Compared to non-FASD-impacted persons, those with FASD are more likely to confabulate, lack adequate understanding of Miranda and constitutional rights, and demonstrate impairments in the ability to understand the trial process. The presence of confabulation may be an indicator of a profound cognitive impairment. Criminal justice professionals should be aware that when interviewing someone with FASD, they may unknowingly provide inaccurate information and contradictory statements. As such, confabulation may greatly impact legal decisions and outcomes. Well-intentioned professionals may inadvertently not recognize the signs of confabulation. Confabulation can lead to the acknowledgement of a crime that was not committed. Recognition and knowledge of confabulation during the investigative process may prevent the potential for wrongful arrest, conviction, and subsequent incarceration of an innocent individual.
Jerrod Brown, MA, MS, MS, MS, is the Treatment Director for Pathways Counseling Center Inc. Pathways provides programs and services benefitting individuals impacted by mental illness and addictions. Mr. Brown is also the founder and CEO of the American Institute for the Advancement of Forensic Studies (AIAFS).
Pamela Oberoi MA, is currently the Manager of the Refugee Mental Health Program at Pathways Counseling Center.
Jeffrey Long-McGie, MA, MBA, is a Research Fellow at the AIAFS, and currently training to become a licensed police officer.
Judge Anthony (Tony) Wartnik, BA, JD, was a trial judge for 34 years in King County, Washington.
Erv Winkauf, MA, is a retired 40-year law enforcement veteran with 19 years of teaching experience. He currently serves as Chairperson of the Concordia University Criminal Justice Department in St. Paul.
Sarah Herrick, MA, LP, LPCC, CCFC, has worked with sexual abusers ranging in age from ten to elderly since 1991 in residential, community mental health, and prisons settings. Currently she is working with civilly committed sex offenders.
Attali, E., De Anna, Dubois, B., & Dalla Barba, G. (2009). Confabulation in Alzheimer’s disease: poor encoding and retrieval of over-learned information. Brain, 132, 204-212.
Autti-Ramo, I. (2000). Twelve-year follow-up of children exposed to alcohol in utero. Dev Med Child
Neurol, 42, 406–411.
Bookstein, F., Streissguth, A., Sampson, P., Connor, P., & Barrb, H. (2002). Corpus Callosum
Shape and Neuropsychological Deficits in Adult Males with Heavy Fetal Alcohol Exposure.
NeuroImage, 15, 233-251.
Boulding, D. (2007). What Judges and Lawyers Need to Know About Fetal Alcohol Spectrum
Disorder and Witnesses. Retrieved from http://www.davidboulding.com/pdfs/14-1.pdf
Brown, N., Gudjonsson, G., & Connor, P. (2011). Suggestibility and Fetal Alcohol Spectrum Disorders: I’ll Tell You Anything You Want to Hear. The Journal of Psychiatry & Law, 1, 39- 73.
Burd, L., Fast, D., Conry, J. (2010). Fetal Alcohol Spectrum Disorder as a Market for Increased Risk of Involvement with Correction Systems. Journal of Psychiatry & Law, 38, 559-584.
Burgess, P., & Shallice, T. (1996). Confabulation and the Control of Recollection. Memory, 4, 359- 412.
Ciaramelli, E., & Spaniol, J. (2009). Ventromedial Prefrontal Damage and Memory for Context: Perceptual Versus Semantic Features. Neuropsychology, 23, 649-657.
Clare, I.C.H., & Gudjonsson, G.H. (2010). The Vulnerability of Suspects with Intellectual Disabilities During Police Interviews: A Review and Experimental Study of Decision- Making. Mental Handicap, 8, 110–128.
Conry, J. (1990). Neuropsychological Deficits in Fetal Alcohol Syndrome and Fetal Alcohol Effects. Alcoholism: Clinical and Experimental Research, 14, 650-655.
Conry, J., & Fast, D.K. (2000). Fetal alcohol syndrome and the criminal justice system. Vancouver, B.C.: Law Foundation of British Columbia.
Cooper, J. M., Shanks, M. F., & Venneri, A. (2006). Provoked confabulations in Alzheimer’s disease. Neuropsychologia, 44, 1697–1707.
Dalla Barba, G., & Boisse, M. F. (2010). Temporal consciousness and confabulation: Is the medial temporal lobe “temporal?” In R. Langdon & M. Turner (Eds.), Delusions and confabulations (pp. 95–117). New York, NY: Psychology Press.
Demery, J., Hanlon, R., & Bauer, R. (2001). Profound Amnesia and Confabulation Following Traumatic Brain Injury. Neurocase: The Neural Basis of Cognition, 7, 295-302.
Fast, D., & Conry, J. (2004). The Challenge of Fetal Alcohol Syndrome in the Criminal Legal System. Addiction Biology, 9, 161–166.
Fast, D. K., Conry, J., & Loock, C. A. (1999). Identifying fetal alcohol syndrome among youth in the criminal justice system. Journal of Developmental & Behavioral Pediatrics, 20(5), 370-372.
Fotopoulou, A. (2008). False Selves in Neuropsychological Rehabilitation: The Challenge of Confabulation. Institute of Psychiatry, King’s College London, UK. P. 541-565.
Fotopoulou, A., Conway, M. A., & Solms, M. (2007). Confabulation: Motivated Reality Monitoring. Neuropsychologia, 45, 2180–2190.
Fraser, C. (2008). Victims and Fetal Alcohol Spectrum Disorder (FASD): A Review of the Issues. Victims of Crime Research Digest, 1, 24-28.
Fryer, S.L., Tapert, S.F., Mattson, S.N., Paulus, M.P., Spadoni, A.D., & Riley, E.P. (2007). Prenatal Alcohol Exposure Affects Frontal-Striatal BOLD Response During Inhibitory Control. Alcoholism: Clinical and Experimental Research, 31, 1415–1424.
Garrett, B. (2008). Judging Innocence. Columbia Law Review, 1, 55-142.
Gibbard, W., Wass, P., & Clarke, M. (2003). The Neuropsychological Implications of Prenatal
Alcohol Exposure. Can Child Adolescolence Psychiatic Review, 12, 72–76.
Gilboa, A., & Verfaellie, M. (2010). Telling It Like It Isn’t: The Cognitive Neuroscience of Confabulation. Journal of the International Neuropsychological Society, 16, 961–966.
Glowinski, R., Payman, V., & Frencham, K. (2008). Confabulation: a spontaneous and fantastic review. Australian and New Zealand Journal of Psychiatry, 42, 932–940.
Green, C.R., Mihic, A.M., Nikkel, S.M., Stade, B.C., Rasmussen, C., Munoz, D.P. and Reynolds, J.N. (2009), Executive function deficits in children with fetal alcohol spectrum disorders (FASD) measured using the Cambridge Neuropsychological Tests Automated Battery (CANTAB).
Journal of Child Psychology and Psychiatry, 50, 688–697.
Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.).
New York: Kluwer Academic/Plenum Publishers.
Guerri, C., Bazinet, A., & Riley, E.P. (2009). Fetal Alcohol Spectrum Disorders and Alterations in
Brain and Behavior. Alcohol & Alcoholism, 44, 108–114.
Johnson, M. K. 1991. Reality monitoring: Evidence from confabulation in organic brain disease
patients. In G. P. Prigatano & D. L. Schacter (Eds.), Awareness of deficit after brain injury:
Clinical and theoretical issues. New York: Oxford Univ. Press. Pp. 176–197.
Johnson, M., & Raye, C. (1998). False memories and confabulation. Trends in Cognitive Science,
Kapur, N., & Coughlan, A.K. (1980). Confabulation and frontal lobe dysfunction. J Neurol
Neurosurg Psychiatry, 43, 461-463.
Kully-Martens, K., Pei, J., Job, J., & Rasmussen, C. (2012). Source monitoring in children with and
without Fetal Alcohol Spectrum Disorders. Journal of Pediatric Psychology, 37, 725-735. Kully-Martens, K., Treit, S., Pei, J., & Rasmussen, C. (2013). Affective decision-making on the Iowa Gambling Task in children and adolescents with fetal alcohol spectrum disorders.
Journal of the International Neuropsychological Society, 19(02), 137-144.
MacPherson, P., & Chudley, A. E. (2007). FASD: screening and estimating incidence in an adult correctional population. In 2nd International Conference on Fetal Alcohol Spectrum
Disorder, Victoria BC, March (pp. 7-10).
Malbin, D. V. (2004). Fetal Alcohol Spectrum Disorder (FASD) and the role of family court judges in
improving outcomes for children and families. Juvenile and Family Court Journal, 55(2), 53-
Mattson, S.N. &Riley, E.P. (1998) A review of the neurobehavioral deficits in children with fetal alcohol syndrome or prenatal exposure to alcohol. Alcohol Clin Exp Res, 22, 279–294.
Mattson, S.N., Crocker, N., & Nguyen, T.T. (2011). Fetal Alcohol Spectrum Disorders: Neuropsychological and Behavioral Features. Neuropsychol Rev, 21, 81–101.
Mattson, S.N., Gramling, L., & Delis, D. (1996). Global–Local Processing in Children Prenatally Exposed to Alcohol. Child Neuropsychol, 2, 165–175.
McLachlan, K., Roesch, R., Viljoen, J., & Douglas, K. (2014). Evaluating the Psycholegal Abilities of Young Offenders With Fetal Alcohol Spectrum Disorder. Law and Human Behavior, 38, 10-22.
Moscovitch, M. (1989). Confabulation and the frontal systems: Strategic versus associative retrieval in neuropsychological theories of memory.Varieties of memory and consciousness: Essays in honour of Endel Tulving, (pg. 133-160).
Moscovitch, M., & Melo, B. (1997). Strategic retrieval and the frontal lobes: evidence from confabulation and amnesia. Neuropsychologist, 35, 1017-1034.
Nahum, L., Ptak, R., Leemann, B., & Schnider, A. (2009). Disorientation, Confabulation, and Extinction Capacity: Clues On How the Brain Creates Reality. Biological Psychiatry, 65, 966–972.
Nathaniel-James, D. A., Foong, J., & Frith, C. D. (1996). The mechanisms of confabulation in schizophrenia. Neurocase: The Neural Basis of Cognition, 2, 475-483.
Nedjam, Z., Devouche, E., & Dalla Barba, G. (2004). Confabulation, But Not Executive Dysfunction Discriminate AD From Frontotemporal Dementia. European Journal of Neurology, 11, 728– 733.
O’Connor, M. J. & Paley, B. (2009), Psychiatric conditions associated with prenatal alcohol exposure. Dev Disabil Res Revs, 15, 225–234.
Olson, H., Olson, C., Feldman, J., Streissguth, A., Sampson, P., & Bookstein, F. (1998). Neuropsychological Deficits in Adolescents with Fetal Alcohol Syndrome: Clinical Findings. Alcoholism: Clinical and Experimental Research, 22, 1998-2012.
Pezdek, K., Lam, S.T., & Sperry, K. (2009). Forced Confabulation More Strongly Influences Event Memory If Suggestions Are Other-Generated Than Self-Generated. Legal and Criminological Psychology, 14, 241–252.
Popova, S., Lange, S., Bekmuradov, D., Mihic, A., & Rehm, J. (2011). Fetal alcohol spectrum disorder prevalence estimates in correctional systems: a systematic literature review. Can J Public Health, 5, 336-340.
Rasmussen, C., & Bisanz, J. (2009). Executive functioning in children with Fetal Alcohol Spectrum Disorder: Profiles and age-related differences. Child Neuropsychology, 15(3), 201-215.
Rasmussen, C. (2005). Executive Functioning and Working Memory in Fetal Alcohol Spectrum Disorder. Alcoholism: Clinical and Experimental Research, 29, 1359-1367.
Rutman, D., & Van Bibber, M. (2010). Parenting with Fetal Alcohol Spectrum Disorder. Int J Mental Health Addiction, 8, 351-361.
Schnide, A. (2003). Spontaneous confabulation and the adaptation of thought to ongoing reality. Nature Reviews Neuroscience 4, 662-671.
Schnider, A. (2003). Spontaneous Confabulation and the Adaptation of Thought to Ongoing Reality. Neuroscience, 4, 662-671.
Schnider, A. (2008). The Confabulating Mind: How the Brain Creates Reality. Oxford: Oxford University.
Schnider, A., & Ptak, R. (1999). Spontaneous confabulators fail to suppress currently irrelevant memory traces. Nat Neurosci, 2, 677-681.
Schnider, A., Von Daniken, C., & Gutbrod, K. (1996). The mechanisms of spontaneous and provoked confabulations. Brain, 119, 1365-1375.
Streissguth, A. P., Bookstein, F.L., Barr, H.M., Sampson, P.D., O’Malley, K., & Young, J.K. (2004) Risk factors for adverse life outcomes in fetal alcohol syndrome and fetal alcohol effects. J Dev Behav Pediatr, 25, 228–238.
Streissguth, A.P., Barr, H.M., Kogan, J. & Bookstein, F. L., (1996). Understanding the Occurrence of Secondary Disabilities in Clients with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE): Final Report to the Centers for Disease Control and Prevention (CDC), August, 1996, Seattle: University of Washington, Fetal Alcohol & Drug Unit, Tech. Rep. No. 96-06, (1996).
Stuss, D., Alexander, M., Lieberman, A., & Levine, H. (1978). An extraordinary form of confabulation. Neurology, 28, 1166.
Stuss, D.T., & Benson, D.F. (1984). Neuropsychological studies of the frontal lobes. Psychol Bull, 95, 3-28.
Turner, M., & Coltheart, M. (2010). Confabulation and Delusion: A Common Monitoring Framework. Cognitive Neuropsychiatry, 15, 346–376.
Welsh, M.C., & Pennington, B.F. (1988). Assessing Frontal Lobe Functioning in Children: Views from Developmental Psychology. Developmental Neuropsychology. 4, 199–230.
Williams, D. (2010). Theory of own mind in autism: Evidence of a specific deficit in self-awareness? Autism, 14, 474-494.
Zannino, G.D., Barban, F., Caltagirone, C., & Carlesimo, G.A. (2008). Do Confabulators Really Try To Remember When They Confabulate? Cogn Neuropsychol, 25, 831-852.
Zaragoza, M., Payment, K., Ackil, J., Drivdahl, S., & Beck, (2001). Interviewing Witnesses: Forced Confabulation and Confirmatory Feedback Increase False Memories. Psychological Science, 12, 473-477.