Testimony By Wtness With FAS/FAE

Testimony By Witness With FAS/FAE

Bailey v. Kansas
89 P.3d 662, 2004 WL 1087063 (Kan. Ct. App. 2004)

Defendant Bailey filed a pro se motion for post-conviction relief following a no contest plea to criminal sodomy, claiming that his trial counsel was ineffective.

The underlying criminal case arose from the alleged sexual abuse of an 11-year old boy, S.A., a child diagnosed with FAS, mild Raynaud's disease, attention deficit disorder, spina bifida, and a coordination delay. S.A.'s foster parent testified that, among other things, S.A. is a child who can be easily manipulated. However, S.A.'s foster parent also testified that he had heard S.A. tell the story of the alleged abuse "maybe eight to ten times to at least four different people and it's been the same exact story..."

On the morning of the trial, Bailey entered into a plea agreement. On appeal, Bailey claimed ineffective assistance of counsel. One of Bailey's arguments was that S.A. was interviewed using inappropriate leading questions and this his attorney should have consulted an expert on child interview techniques. The court's opinion refers to "factors undermining the victim's reliability," but does not specify whether the victim's FAS diagnosis is one of those factors.

The court of appeals found that Bailey's counsel may have been deficient by failing to consult an expert witness on child interview techniques but that Bailey was not prejudiced by this failure because he elected to accept a beneficial plea agreement.

State v. Anderson
2002 WL 1278062 (Wash. Div. App. 2)

Anderson was charged with raping a young woman with FAS, and was convicted of the lesser charge of attempted rape. The case was tried before a judge sitting without a jury.

On the night of the alleged attack the victim told a longtime acquaintance that she had been repeatedly raped by Anderson, with repeated incidents of ejaculation. The hospital tests revealed no sperm. The judge acquitted Anderson of the charge of actual rape.

The appellate opinion contains this summary of the evidence:

"The judge recognized that [the victim's] testimony was inconsistent on the issue of whether or not penetration had occurred. The court noted, however, that [the victim's] memory is poor and that her ability to comprehend questions and process information was impaired by her disability. The court also noted that she was not sophisticated or intelligent enough to fake the emotional response that she exhibited after the incident."

2002 WL 1278062 at *1.

It is not possible to ascertain from the reported opinion what evidence in the case would have supported the distinct charge of attempted rape.