Is your child on the spectrum and been accused of a crime? Children with autism benefit from a variety of different laws created to protect them. Your child’s diagnosis also plays a role in his or her defense. How does the law protect people with autism?

Here’s what you need to know.

What is Autism?

The medical community has a better understanding of autism now than it ever has. But to many people, it’s still a mystery. This misunderstanding often leads to issues in school, work, and other places.

Autism is a neurodevelopmental disorder. It impairs social development and results in communication challenges. Many autistic people engage in repetitive behavior.

The term “autistic” covers a variety of issues, including other disorders, such as pervasive development disorder and Asperger’s syndrome. An autistic person can be very highly intelligent, but they might also have moderate or low intelligence.

What Happens When Autism Plays a Role in a Crime?

There are many laws in place that protect people on the autism spectrum. Many of these laws prevent schools from limiting the movement or secluding people with autism. Low-functioning people diagnosed with autism might qualify for Supplemental Security Income or Social Security Disability Insurance.

But what happens if a person’s autism plays a role in their being accused of committing a crime?

Is it possible to use an autism diagnosis as a defense against criminal charges?

The simplest answer is “maybe.”

Developmental Disabilities and the Court System

Developmental disability is rarely a successful defense. To use it, there should be a mental health evaluation. This ensures that a defendant has at least one professional opinion to back up their claim.

However, even with an evaluation, these are complicated defenses. Mental health is not an exact science. There are many varying opinions on mental health issues, including autism. Human behavior is complicated. Opinions vary based on the information the medical community has regarding autism.

Additionally, the justice system is based on people having a rational understanding of the system and making voluntary choices. People with intellectual disabilities might not understand legal proceedings and might be incapable of making well-reasoned choices.

Finally, the justice system doesn’t have a great track record of dealing with cases in which a defendant has a developmental disability. Case law is inconsistent and for many, successfully arguing a case results in the defendant dealing with a worse fate than had they not used a defense based on autism.

This doesn’t mean people on the spectrum accused of a crime have no hope. A person’s ability to understand the effect of his or her actions is an important part of a legal defense. But claiming someone is not responsible for their behavior solely based on having autism is not as black-and-white as it seems.

How Does the Law Protect People with Autism?

If you or your child has been accused of a crime and autism is a factor, I can help. I’ve worked with clients on the spectrum and I understand the complexities of building a successful defense. If you’d like to discuss your situation or you need an experienced attorney to help you with your circumstances, contact David Lindsey to schedule a free consultation.

Contradictory Verdict

The Colorado Supreme Court recently upheld what appeared to be a contradictory verdict. The court split 6-1 in favor of the defendant Michael W. Struckmeyer’s convictions.

Struckmeyer was found guilty of two counts of child abuse after a child under his care suffered a traumatic brain injury. According to at least one medical expert witness, the child’s injuries were consistent with physical abuse, as opposed to accidental harm.

According to David Lindsey, the court’s ruling was “one of those decisions like they throw at you in the very first week of law school to try and train your brain not like how a normal person would think, but how a lawyer would think.”

Struckmeyer appealed the original convictions on the basis that the two were logically inconsistent with one another.

According to his defense, the first count of reckless abuse was inconsistent with the second charge of criminal negligence. His defense argued that he could not be criminally negligent. It would indicate a lack of awareness and, simultaneously, an awareness of the risk of bodily injury.

Court Cites Recent Case as Basis for Decision

The initial appeal was successful. The Colorado Court of Appeals reversed Struckmeyer’s conviction in 2018 and ordered a new trial. The court agreed with the claim that if an element of a crime negating an element of another crime creates a contradiction. A guilty verdict would be inappropriate in one or the other instance.

According to the court, which cited the very recent case of the People v. Rigsby, Struckmeyer could not be guilty of both charges against him because it would require him to be simultaneously aware and unaware.

The Colorado Supreme Court disagreed with the appellate court and found no legal inconsistency in the decision.

According to Justice Carlos A. Samour, Jr., acting with criminal negligence was not mutually exclusive. It spoke to the defendant’s culpable mental state. It’s possible someone could act solely with criminal negligence, but not knowingly or with intent. To act knowingly indicates awareness or intent.

Justice Samour wrote, “even if Struckmeyer’s convictions were logically inconsistent, they were legally consistent because the defendant’s reckless act necessarily included an element of criminal negligence.”

Justice Richard L. Gabriel, the one dissenting justice, stated that he would order a new trial for Struckmeyer. He based his intention on the legal and logical inconsistency of the verdicts.

Ruling Provides Flexibility for Prosecution

David believes the Supreme Court decision was correct based on legal principle. However, if someone were to receive a sentence for each crime, there would be a problem. The Sixth Amendment prevents more than one sentence for the same criminal offense. In these cases, the defendant receives a sentence for the more serious of the charges.

David also notes that the ruling allows the prosecution to pursue both intentional and negligent charges, giving them a lot of room to shift around as evidence comes to light, which is detrimental to the defense.

David shared his thoughts on this case with Colorado Politics.

If you have questions about this particular case or you’d like to speak to David about charges you are facing, contact him at 303.228.2270.

Fifth Amendment Constitutional Rights

Most people have heard the term “pleading the fifth.” It is used in television and movies on a regular basis, so most people have some idea what it means. But in reality, what it means to use the Fifth Amendment for protection can be complex and something you need to discuss with an experienced attorney.

“The Fifth” refers to the Fifth Amendment of the US Constitution. The purpose of the Fifth Amendment is to protect people against self-incrimination and prevent a person from having to serve as a witness against themselves. The amendment specifically states, “No person…shall be compelled in any criminal case to be a witness against himself…”

The right to protection against self-incrimination was important as the country was being formed, in part, because of the treatment the Puritans faced in the 1600s under the Church of England. They were often tortured into admitting their religious affiliation and if they refused to do so, they were considered guilty. English laws established to protect them against self-incrimination became part of the laws of the new land.

In a nutshell, pleading the Fifth means that you can’t be forced to say anything that can be used against you and that you cannot be forced to testify if what you would say could be used to argue you are guilty of a crime. Fifth Amendment protections are offered at both the federal and state levels.

The issues related to the Fifth Amendment and your Miranda rights tend to be complicated and can have a huge bearing on your case, so it’s important to discuss your Fifth Amendment rights with your attorney.

How Do I Know I Should Plead the Fifth?

This is an issue that needs to be discussed with your attorney as soon as possible when you are facing criminal charges.

In general, the less you say the better throughout the investigation phase of your case, but when it comes to speaking in court, whether or not it’s a good idea to use the Fifth Amendment varies from case to case.

The Fifth Amendment can prevent you from incriminating yourself while under oath, but it can also have a negative effect on the jury. After all, why wouldn’t a person take the stand and give testimony if he or she were innocent? But this isn’t always the case.

Despite juries being advised not to consider any implications of a defendant taking the fifth, it is human nature to be curious why a person would choose not to publicly defend him or herself. Even if you taking the fifth doesn’t affect them directly, it could have an indirect bearing on their opinion of you. Jurors are told to view it neutrally, but it can still affect the outcome of your case.

How Miranda Rights Grew Out of the Fifth Amendment

When you are arrested you must be read your Miranda Rights. These are things told to you by law enforcement that ensure you are aware of what you can and cannot do. As part of your Miranda Rights, you must be informed that you have the right to remain silent and to have an attorney present for any police questioning.

Miranda Rights are an outcome of the US Supreme Court ruling on the case Miranda v. Arizona. In that case, it was ruled that a person’s Fifth Amendment rights extend beyond the courtroom and apply to anything that involves testimony or personal rights. If you speak to law enforcement and you have not been read your Miranda Rights, anything you say after your arrest could be ruled inadmissible in court.

For a detailed explanation of Miranda Rights and how they affect you if you are arrested, check out this information from MirandaWarning.org.

If you’d like to know more about your Fifth Amendment rights or you have questions about how the Fifth Amendment applies to your case, contact Criminal Defense Attorney David Lindsey for a free consultation.

Justice Samuel Alito, supported by Justices Roberts and Kennedy, asserted that “a witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.” The Court rejected the notion that the silence should in itself be taken as a Fifth Amendment plea. Justice Clarence Thomas was joined by Justice Scalia in his contention that an individual’s silence could be used against him in trial even if he did claim a Fifth Amendment right.

In this case, plaintiff Genovevo Salinas went voluntarily to the police to answer some questions about a crime; because he was not in custody and could leave of his own volition, the police did not read him his “Miranda warnings” which include the right to remain silent. During the course of questioning, he refused to answer specific questions about the facts in the case, and prosecutors subsequently used this nervous silence to convince jurors that he was guilty of the crime. His lawyer argued that he did not have to claim his right to remain silent because at the time of the questioning he was not yet in custody and had been issued no warning.

The dissenting opinion was written by Justice Steven Breyer, who was joined by Justices Ginsberg, Sotomayor and Kagan, and stated that courts should have to examine all the specific circumstances of an individual’s encounter with the police to determine whether that individual’s silence was an attempt to invoke their Fifth Amendment rights.