Testimony By Individuals with FAS/FAE

Testimony By Individuals With FAS/FAE

United States v. Allen J.
127 F. 3d 1292 (10th Cir. 1997)

Allen J. was adjudged to be a juvenile under the Federal Juvenile Delinquency Act, based on an offense committed within the Navajo Indian Reservation. Allen J. was charged with forcing his then eleven-year old victim to engage in sexual contact. Both the defendant and victim were Native Americans

Allen J. challenged the competency of the witness. The witness was thirteen at the time of trial. Allen J. offered evidence that she suffered from FAS or "Fetal Alcohol Exposure." (127 F. 3d at 1294.)

Under federal law children are presumed competent to testify. A party objecting to such testimony must offer compelling reasons for doubting the competency of the witness in order to get a competency evaluation. The trial judge refused to order such an evaluation, and the appellate court agreed.

The courts framed the question as being whether the witness understood the difference between a lie and the truth, and understood she was supposed to tell the truth. (127 F. 3d at 1295.) What the courts apparently did not realize is that an individual with FAS/FAE may understand the difference between the truth and a lie, but may not grasp the difference between reality and fantasy.

This witness did not respond at all when asked "Do you understand what it is to tell the truth?" and "Do you know the difference between the truth and a lie?" She testified she was eleven (she was actually thirteen) and gave some nonsense answers (e.g. she answered "true" to the question "is it good or bad to tell a lie?") The judges assumed that, at worst, the witness would be "at least as capable of testifying as much younger children." (127 F. 3d at 1294). But even a four year old can accurately describe his or her own age.

Individuals with FAS/FAE are especially vulnerable, and could be preyed upon without redress if they were not able to testify. But the circumstances of this case illustrate the difficult problems that such testimony may raise in some instances.

United States v. Butterfly
72 Fed. 3d 136, 1995 WL 729484 (9th Cir.)
182 F. 3d 928, 1999 WL 369954 (9th Cir.)

Both Ronald and Mary Butterfly were convicted of sexual molestation of four of his nephews, all of whom had FAS. The defendants challenged the competency of the four children to testify. The trial court permitted them to testify, and in 1995 the court of appeals, by a vote of 2-1, affirmed. The defendants were not permitted to put before the jury evidence that the boys' FAS made them unreliable witnesses. Judge Canby dissented.

There were several problems with the testimony: (1) The children testified that there had also been four separate murders, none of which could be substantiated in any way. (2) Other events related by the victims were apparently improbable and contradicted by other uninvolved witnesses. (3) One witness, Brandon, testified variously that he understood the oath to tell the truth, that he had no duty to tell the truth, and that he did not care that he was under oath. Brandon stated he did not know what would happen to him if he lied in court. (4) A therapist testified that Brandon did not know whether his stories of abuse were true or false. 1995 WL 729484 at *3.

In the 1995 appeal the court upheld the convictions. Subsequently all four of the alleged victims recanted. The trial judge refused to hold a hearing about whether the defendants were entitled to a new trial. The court of appeals in 1999 reversed, and directed that a hearing be held. The court quoted from the dissenting opinion in the 1995 appeal, including this statement: "fetal alcohol syndrome . . . often makes it difficult for its victims to separate fact from fiction. Brandon's therapist testified that Brandon did not know whether his stories of abuse were true or false." 1999 WL 369954 at *1.

Devereaux v. Perez
2000 WL 1781357 (Wash. App. Div. 3)

Devereaux was charged with a large number of sexual offenses against children. Most of those charges were ultimately dropped. His case was one of a number of controversial cases involving similar allegations, many of which were ultimately discredited, against adults in Wenatchee, Washington.

Devereaux sued a number of state officials. The particular question in this case was whether several employees of the Department of Social and Health Services had acted reasonably in their role in the investigation. Although the DSHS workers were not the initial interrogators, the court held that "they were aware of the facts and circumstances that would have led any reasonable investigator to at least question the allegations against Mr. Devereaux." 2000 WL 1781357 at *10.

One of the children who made (and later recanted) allegations against Devereaux

"suffered from fetal alcohol syndrome and experienced difficulty in remembering events. Despite this vulnerability, she was repeatedly questioned by Detective Perez and, according to her, pressured to make accusations against Mr. Devereaux." *3.

It is unclear whether the DSHS workers knew at the time that this child had FAS, or whether the court was relying on any such knowledge in holding that the workers may have acted unreasonably.

This case is perhaps more important as an illustration of the risk that an individual with FAS can too easily be induced by interrogators to tell them what they want to hear.

Devereux v. Abbey
263 F. 3d 1070 (9th Cir. 2001)(en banc)

This case grew out of a series of prosecutions, now largely discredited, of adults alleged to have engaged in sexual acts with young children. Devereux, who was one of those prosecuted, brought a civil lawsuit for damages against several of the officials involved.

Devereux asserted among other things that the case against him had been built in part by police officials who knowingly induced unreliable testimony from a minor whom they knew had FAS. Devereux asserted that individuals with FAS can easily be induced to give false testimony. (263 F. 3d at 1078). The majority opinion did not address this argument, since the child in question had ultimately recanted her accusations. The majority upheld the dismissal of the suit.

Judge Kleinfeld, in a separate opinion concurring in part and dissenting in part, quoted from a book about FAS which described the effects of FAS/FAE as including "inappropriate social behavior, memory deficits . . . lack of judgment, lack of remorse for misbehavior, lying . . . unusual aggressiveness, and wide variations in learning abilities at different times." (263 F. 3d at 1087). He would have permitted the case to go to trial, because on his view a jury could infer that at least one or more defendant officials knew they had induced false testimony from a suggestible witness.

State v. Goldenstein
505 N.W. 2d 332 (Ct. App. Minn. 1993)

Mr. and Mrs. Goldenstein were convicted of sexually abusing several foster children, all of whom had apparently been diagnosed with FAS. The defendants were convicted on the basis of out-of-court statements that had been made by the children.

The court ruled that the children were all incompetent to testify.

"The trial court found the older girl incompetent on the basis of lack of ability to tell the truth and the younger girl incompetent on the basis of her lack of ability to remember what happened. The trial court found the boy incompetent because he refused to answer questions and was frightened."

505 N.W. 2d at 342 n. 7.

The trial judge refused to permit the defense to present testimony by an expert on FAS who would testify about "the impact the disease has on children's behavior and their ability to remember and describe events." 505 N.W. 2d at 342. The proposed witness was Dr. Robert W. ten Bensel. The trial judge did so on two grounds: (a) Dr. ten Bensel could not, based upon the records before him diagnose the children with FAS, and (b) the witness had not interviewed or examined the children (a result of the court's own order prohibiting any interview or examination).

In overturning the conviction, the appellate court explained:

"The admissible evidence at trial, especially the evidence from the medical and psychological professionals, often touched on FAS. The jury was never provided with information about the syndrome. The state contends that information about FAS is not relevant to the case and has no bearing on whether the children were sexually abused. FAS, however, apparently impacts a child's ability to remember and restate events. If medical records do, in fact, contain a FAS diagnosis of the children, this medical information directly affects the credibility of the children, would be helpful to the defense, and the expert testimony would assist the jury in discharging its factfinding duty."

505 N.W. 2d at 342.

The appellate court also held that the trial court had violated the constitutional rights of the defendants when it excluded evidence that the children had made false accusations of sexual abuse against another person. 505 N.W. 2d at 340.

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