"Something's Happening Here/But You Don't Know What It Is": How Jurors (Mis)Construe Autism in the Criminal Trial Process

In the past 50 years, autism spectrum disorder (ASD) has gone from a narrowly defined, rare disorder of childhood onset to a well-publicized, advocated, and researched lifelong condition, recognized as both fairly common and heterogeneous. Although the autism rights movement has drastically altered the perceptions of ASD within the last two decades, how autism is “processed” in the criminal trial process is a topic that is still largely under the radar and yet to be fully explored. As research into this population increases, and as more and more children are diagnosed on the spectrum and enter into adulthood, the number of persons with ASD in our criminal courts will no doubt grow exponentially. Participation in the criminal justice system is often described as a humiliating and shaming experience in general, but for persons with autism spectrum disorder (ASD), the process can be especially detrimental and destructive. The same social and communicative impairments that led to the initial interaction with the criminal justice system can similarly make the navigating process even more difficult.In our efforts to maintain dignity and preserve justice for persons with autism in the criminal justice process, we present the following roadmap to outline the pertinent issues that must be explored. Following an introductory section, in Part II, we offer an abbreviated overview of the science that supports an autism diagnosis, and then analyze the particular clinical traits of ASD that have the most impact on the criminal justice procedure and outcome at trial. In Part III, we present the particular steps that must be taken to better serve this population, including the effective utilization of voir dire in juror selection that incorporates a consideration of juror attitudes on mental disability and juror perceptions of a defendant’s expression of remorse and empathy; the importance of holding judges accountable in recognizing the dangers of ordinary common sense (OCS) and conveying those dangers to jurors; the necessity of a specialized expert witness at trial and how such witness can either bolster or inhibit a successful defense, and reconstructing how we charge the jury on autism in order to comply with constitutional mandates and a justiciable outcome. Finally, in Part IV, we consider the effect of therapeutic jurisprudence on the overall process, and then, in Part V, offer some conclusions.