Why autistic people are less likely to get a fair trial

Judges, juries and other lawyers often fail to understand neurodiversity – and neurodivergent people pay for it

By Matthew Rozsa

Staff Writer

Published July 14, 2021 4:31PM (EDT)

Group of People with differing brain patterns (Getty Images)
Group of People with differing brain patterns (Getty Images)

Autism advocate Haley Moss is many things: an author, a pop artist, a social justice advocate. She is also, notably, the first openly autistic female attorney in Florida history, which means that she is in a position to advocate on behalf of other people who are neurodivergent. ("Neurodivergent" is a neologism means that your neurological makeup is not typical, and is an antonym of the neologism "neurotypical.") In speaking with her, it is clear that she views her career successes as a responsibility, one to which she devotes a large portion of her substantial intelligence.

And she knows that if she were not a lawyer, she would struggle to be heard. 

"I think that a lot of the reason that I do get to educate attorneys and judges is because I'm also an attorney," Moss told Salon. "I think the fact that I am seen or perceived as an equal educationally is a huge privilege. And I think sometimes it's the only reason that I might get to take up space in that conversation. I don't know if judges would give it the same weight or attorneys would give it the same weight benefit."

Research has shown that being autistic is akin to speaking a different language. Those on the spectrum are more likely to commit faux pas, to not properly read a social situation or figure out how to effectively interact with it, or in general be uncomfortable because of external stimuli. Even though we would like to imagine that our court system is impartial and focused on facts, the reality is that cases are decided as much by unwritten social rules as everything else in our lives. This means that neurodivergent individuals are here, as elsewhere, more likely to run into bad situations.

And indeed, our purportedly impartial justice system is often biased against the neurodivergent.

"Stereotypes about neurodiversity that are grounded in the old 'deficit' view of the brain work against the individual," Thomas M. O'Toole, Ph.D., the president of and consultant at Sound Jury Consulting, LLC, told Salon by email. "We live in a post-truth world where our beliefs and experiences serve as powerful filters for what we accept as true, and unfortunately, this means those stereotypes could work against a neurodiverse party in a lawsuit if the stereotypes give jurors a shortcut to doing the hard work of sorting through the case details."

"Judges and attorneys are everyday people with everyday biases as well, so I think the challenges remain the same with all three audiences," he added.

O'Toole gave an example in which this happens: If there is a lawsuit that centers around two sides claiming the other made poor decisions, jurors may find it easier to question a neurodivergent person's choices based on "deficit" stereotypes. Even though the jurors would think they are being impartial, they are essentially deciding that the non-neurotypical person is less reliable because of their neurodivergent traits. (There are studies which have found that jurors, judges and the legal system in general often don't know how to interact with autistic people.)

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Elizabeth Kelley, a criminal defense lawyer who specializes in representing people with mental disabilities, described the challenges facing neurodivergent people in our legal system as "a tremendously involved question largely based on the type of neurodiversity" at play. You have criminal defense lawyers who will need to factor a client's mental disability or illness into account when determining what advice to give on taking the stand, impressing the jurors and interacting with the judge. If a client laughs at inappropriate times, or doesn't show emotion during upsetting testimony because of a flat affect, or takes a medication that makes them feel tired, or reacts poorly to being overwhelmed with the stimuli present during a trial, they could wind up making a bad impression on the judge and jurors.

"All of the things that I mentioned earlier about the defendant's demeanor while sitting at trial table may be manifested while that defendant is on the stand: flat affect, not being able to look people in the eye, laughing at inappropriate moments, saying things that are completely inappropriate, and the jurors and the judge may take offense at that," Kelley told Salon.

Another part of the problem, as Dr. Michael Kiener of Maryville University wrote to Salon, is that ordinary people are often ignorant about the spectrum of disabilities.

"Often people with disabilities experience prejudice from others due to the perceived ambiguity of disability. Many individuals are unaware of the different types of disability," Kiener explained. "For example, hidden or visible and congenital or acquired disabilities. In addition, there are physical, sensory, cognitive, and learning disabilities; all of which add to misunderstanding by individuals with little experience interacting with people with disabilities. As a result, many individuals have a limited understanding of the diversity within the disability community."

Moss elaborated on the challenges facing neurodivergent individuals when they interact with our legal system.

"Think about how your average person or reasonable person hears narratives about neurodiversity," Moss explained. "They see what they see in the media and how media sometimes gets it wrong. They might hear somebody testify and they think that this person isn't acting in the way that they should." Whether they don't get their words straight, they fidget and get nervous, they stim (engage in self-stimulating behaviors) on the stand or have a flat affect, "a juror might think, 'I think they're lying,' even though they're just trying to regulate their attention."

O'Toole said there are a number of things that can be done to fix this situation. For one thing, attorneys with neurodiverse clients should directly and immediately address the issue in their opening statements if they believe it could become an issue. Simply raising awareness to the judge, jury and other lawyers can make a difference.

"Essentially, the lawyers needs to offer a 101 on neurodiversity and try to dispel common stereotypes," O'Toole explained. "Similarly, judges can give jury instructions to raise awareness. A common jury instruction already given by judges is about how corporations and individuals should be treated the same at trial, so there is already a foundation for giving instructions about treating both parties equally. Unfortunately, judge instructions are not always effective, but it would certainly help raise jurors' awareness about this bias."

O'Toole also suggested that lawyers explore potential anti-neurodiversity biases in the jury pool.

"Jurors may not necessarily openly admit to a bias like this, but there are other ways to identify indicators of bias through questioning," O'Toole argued. "At the end of the day, a diverse jury is best. Diversity does not necessarily eliminate this kind of bias, but it certainly has a quieting effect on the bias in the deliberation room."

By Matthew Rozsa

Matthew Rozsa is a staff writer at Salon. He received a Master's Degree in History from Rutgers-Newark in 2012 and was awarded a science journalism fellowship from the Metcalf Institute in 2022.

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Autism Justice System Mental Health Neurodiversity Psychology Reporting