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Court’s Response to Neurodiverse Persons

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Court’s Response to Neurodiverse Persons
By Alyssa Invernizzi
Posted: 2023-07-19T13:49:32Z

Our summer intern, Alyssa Invernizzi, reports on a webinar organized by NAWJ-USA entitled "Improving the Court’s Response to Neurodiverse Persons."

The National Association of Women Judges organized a webinar on July 11th entitled "Improving the Court's Response to Neurodiverse Persons." It was led by Dr. Martha L. Rodgers, Ph.D. and moderated by Renee Stackhouse. Rodgers discussed throughout the panel ways to offer new responses that the court can elicit when they encounter a neurodiverse person. Neurodiverse describes someone who usually has one or more conditions or disorders that are genetic, learning, etc. Her goal was to reveal the increased interest in these communities and discover the correct way to communicate in these cases to obtain reliable and valid information.


The webinar explains different conditions that neurodiverse people adhere to and what random observations or recommendations judges see occurring in the courts. It was noted that autism spectrum disorder and Attention Deficit Disorder (ADHD) are most commonly seen today in the court system. These intellectual disorders cause a person to feel easily victimized or confused. Although most of these are prevalent in children, they can continue into adolescence. With young children, they may need help to reconstruct a context. This means that language such as "tell me about…." is the most reliable for receiving vital information. This is better known as the narrative prompt. This assumes a high level of cognitive functioning where the subject can identify an event with a context of place, time, or other memorable details. Another beneficial approach to strip the context method is to ask open-focus questions. This provides some direction as to where to search in one's memory for relevant information. Simply asking, "What did ____ say?" makes the choice much less demanding as it only requires recognition memory rather than a well-developed searching capacity. These prompts all fall under the skill-based practice that judges should follow. This is the most reliable way to approach neurodiverse persons as an underlying cognitive science and methodology. Asking questions that elicit a "yes/no" only response will not be reliable because that can be challenging for those experiencing communication or cognitive impairment struggles.


Although these are the most reliable questions, the survey that NAWJ conducted from women judges reported random observations that confuse their ability to approach the subject effectively. Comments include subjects in denial, minors with unrecognized mental health problems, limits of psychological testing, and vexatious litigants. Judges may not understand what they are getting themselves into without information regarding one's condition on the pre-hearing form. IAWJ's programs focus on inclusive justice in the court systems and strengthening judicial integrity within our member judges. NAWJ's strategies ensure that both the subject and the judge can clearly understand the case and the information presented. Seeing neurodiversity as a social justice movement is critical to noticing their struggles in social and professional environments.


The NAWJ Neurodiversity survey also provided recommendations to prevent further unknowns when confronting neurodiverse persons in court. Suggestions include providing the diagnosis in a pre-hearing form, information sharing amongst defense and prosecution regarding neurodiversity, access to a booklet for the attorneys, having support personnel present in the hearing, or allowing consultants or local continuing education experts to discuss ways to conduct the hearings in these situations. These recommendations can significantly improve the court systems and recognize that this group of individuals is treated adequately.


Something insightful that Rodgers mentioned was that there could be a situation where a child is questioned about the acts of their parents. She said that interviewing young children can be tricky in abuse trials because the child may absorb the delusional thinking of the parent. Not only is this traumatic for a child but also, they may feel confused about what they saw if one parent was abusing another (unaware of their relationship troubles). Thinking about potential childhood amnesia is significant in questioning not only children but also neurodiverse people because they may not understand or remember events in context.


Lastly, the NAWJ surveyed about half of the judges to reflect on what incidents they have experienced in court concerning neurodiversity. Most reported that they find out that a person is neurodiverse through courtroom staff or personal observations. It is typically never addressed in the first trial. Only about half of the time are the judges aware of their needs, and only 10% had advance notice of the neurodiversity. Although most judges are familiar with making formality changes in the instance of neurodiversity, the issues were found to be resolved poorly or could have been better. Most judges reported that the accommodations led to a reasonable outcome. However, they wished they knew some people were intimated or in denial of their condition. As a result, jurists were dealing with unknown diagnoses or unreliable reporting. Rodgers advised that some critical tips for handling these hearings would be to put them last on the calendar to prepare for a proper interview, clear the courtroom for HIPAA, continue seeking mental health training and its accommodations, and exercise kindness and patience. These factors are crucial for neurodiverse people as they may feel pressured in these hearings to plan, organize themselves, and speak properly, which they may already have difficulty doing. Overall, by respecting the American with Disabilities Act (ADA) and Individuals with Disabilities Education Act (IDEA), and these recommendations, women judges and all court officials can provide the necessary resources in these cases. Exercising these recommendations now can also lead to more discussion on what to fix next and prevent further issues of concerns for the IAWJ.