Joan Dwyer (Senior Member, Commonwealth Administrative Appeals Tribunal)
People with a severe communication impairment, particularly those using facilitated communication, face difficulties in obtaining access to justice.
This article was first published in The Australian Journal of Administrative Law, February 1996, v.3, No. 2, pp. 73-119. DEAL is grateful to Ms Dwyer and to the Australian Journal of Administrative Law for giving permission to republish this material.
Luckily internationally the picture is not so gloomy as in Victoria where the combination of the Wallace decision, the misunderstood and misrepresented IDRP report, the Ombudsman's reports and the current government cuts have all but removed facilitation from most institutions.
In America a book "Out of Silence" (180) was published in 1994 by Russell Martin, an established author of one novel and four works of nonfiction. It tells the story of the author's autistic nephew and refers to the role of facilitated communication in helping him find useful language.
In Germany a balanced article was published in "Focus", a very well known and widely read magazine. It gives accounts of individuals who use facilitated communication. (181) One of those is Birger Sellin who wrote a book recently published in Germany. It has just been released in English. (182)
Although courts have on the whole adopted a cautious approach to the use of facilitated communication, there is a recent New Zealand decision where the validity of facilitated communication has been accepted and there are two important Appeal Court cases in the United States. In one of them it was accepted that facilitated communication could be used as evidence in a Court. In the other, evidence given by facilitated communication was accepted and found reliable at first instance. A conviction relying on that evidence was upheld on appeal.
The headnote to Laumalili v S [1994] NZFLR 413 sets out the facts of that matter as follows:
"M, aged 13, alleged that she had been sexually violated by her brother and her father. M was autistic and could not speak. The disclosures had been made through a process of 'facilitated communication' whereby M was assisted in pressing or pointing to letters on a keyboard to form words. Prior to the allegations being made her behaviour had been causing concern at her school. After the allegations were made M was placed in DSW care. A family group conference held in September 1993 had failed to reach agreement with the parents expressing strong views that M should return home. The parents denied that any sexual violation had taken place, stating that there was lack of time and opportunity for either M's brother or father to have violated her. However the medical evidence strongly supported violation having occurred.
Held (making a declaration that M was in need of care and protection)
(1) M's evidence could be relied on, having regard to her good command of language; the evidence that autistic children have little or no imagination; M's demeanour when making the disclosures; M's behaviour since disclosure; evidence from three witnesses that they had smelt semen on M in November 1992; and the medical evidence that M had been repeatedly sexually violated. This could be compared with the parents' evidence which was inconsistent and implausible. In those circumstances the Court was satisfied the grounds for a declaration had been made out.
(2) The validity of the evidence produced by means of facilitated communication was accepted, particularly having regard to the distinctive language used by M in her answers which was consistent with the language and style she used in her written school work."
Judge Frater, in his reasons for judgment, set out the circumstances leading to the making of the allegation of sexual abuse. The paediatrician who treated M saw her for an annual review in April 1992 when she was aged eleven. It was reported to her that "for about 13 weeks M had been very disturbed and indulging in a lot of self-hitting particularly of her head". The mother reported that she seemed very distressed, was clinging very much to her mother and did not allow her to go out of her sight. The mother herself raised the possibility of sexual abuse but could not suggest where or how it could have occurred. On 6 May 1992 an occupational therapist who worked with M regularly reported to the paediatrician that M "seemed to be making comments by means of facilitated communication regarding bed and her father". This was discussed with the mother and later with both parents but it was decided there was insufficient evidence to warrant a referral.
During the rest of 1992 M's behaviour continued to cause concern and even deteriorated. She was seen by a child psychiatrist, but with no apparent effect.
On 13 November 1992 three staff at the centre she attended independently smelt semen on her when they toileted her. Her teacher had noticed the same smell twice before but had not taken any action. Early in 1993 M made more disclosures by facilitated communication which suggested she had been involved in a sexual relationship with her brother. At a meeting M's mother said she thought it was impossible as the brother was out most evenings and a lot of weekends. M was asked what had happened and when. She typed to her mother that it occurred - "In the morning when you took Dad to work"
An experienced social worker then had four interviews with M to assess her understanding and consider her care and protection needs. When she interviewed M, a staff member facilitated the communication using a Canon Communicator. M said the "fucking" had occurred "in his bed very often"; she explained what she meant by "fucking" and explained in some detail what had occurred on two specified occasions. When she was asked "Has anyone else done that to you?" she replied "Dad". She said it had happened with her father when she was ten "lots of times" but had stopped because "Dad got a fright".
On 18 May 1993 M was medically examined under general anaesthetic. The findings supported multiple episodes of penetration rather than a single event. The examining doctor had no doubt that penetration had occurred.
At first after those disclosures M's mother agreed to her being placed in a home in the care of the Department of Social Welfare, but by September 1993 both M's parents were seeking her return home.
The reasons for judgment state:
"[A]t the outset of the hearing Mrs H and Mrs A gave a very helpful practical demonstration of the operation of the Canon machine used by M in the disclosure interviews and also alphabet and number boards which she uses at school." (183)
That appears to have been a very useful step to familiarise the Judge with the procedures which were being described to him. The parents denied that either M's brother or her father could have abused M, although her mother accepted the medical evidence and suggested that she may have been abused by someone else. The mother did not challenge the fact that M could communicate by facilitated communication.
The father denied the authenticity of the transcript as well as denying that he had abused M. He suggested that the physical changes seen by the doctor were caused by constant masturbation.
Judge Frater said at pp420-421:
"I should say at the outset that I accept the validity of the evidence produced by means of facilitated communication. Although lack of experienced facilitators in the Wellington area meant that it was impossible to check M's disclosures using a person who had previously had no contact with her, I accept that the three women involved, Mrs H, Mrs A and Mrs N, had no reason to direct M's communications in such a way that she said things that she would not otherwise have said. Both Mrs H and Mrs A impressed me by their commitment to ethical standards of professional conduct.
However the most compelling evidence that the replies recorded to Ms Walker's questions are M's answers and hers alone is the language used. It is consistent with the language and style used in a story written by M as part of her school work in June or July 1993. . . .
It is not surprising that M uses this type of language when you consider her upbringing. Her mother said that when she was little she read to her the classics 'Great Expectations', 'Passage to India' and 'Mill on the Floss', for example. And when she ran out of classics she read from Encyclopaedias. But can M's words be relied upon? I think they can. They have the ring of truth about them. I say this for several reasons: (1) I am satisfied that M has a good command of language and clearly understood the words she was using. (2) The evidence of Dr Buckfield was that autistic children do not go into flights of fancy. They have little or no imagination and can speak only from their own experience. (3) M's demeanour when she made the disclosures was consistent with the truthfulness of the allegations. She was visibly upset and tearful at times but persisted in getting her story recorded. (4) M's behaviour since disclosure is also significant. She does not like where she is living at the moment. She describes the IHC home in P as a 'roaring hell hole'. And she clearly misses her family, particularly her mother. Yet she has not recanted of her story although she has so much to lose by it. (5) I accept that Mrs H, Mrs N and Mrs A each independently smelt semen on M in November 1992, and that Mrs H did on two earlier occasions. I do not accept Mrs S's alternative explanation for these incidents. (6) Finally there is Dr Shepherd's evidence that M has been repeatedly sexually violated. I accept her opinion that the damage could not have been caused by the use of an object of a similar size to a male sexual organ, as Mr Gibson contended." (emphasis added)
His Honour concluded at p421:
"On the basis of the medical evidence I am in no doubt that M has been sexually violated on many occasions."
He found M to be in need of care and protection.
This case provides an interesting but sad example of one Judge's failure to ensure that the court's role is to help people with severe communication disabilities access courts, rather than to allow Counsel to devise ever more difficult tests to trip them up. In America three early attempts to use facilitated communication in family court cases were unsuccessful. Luz P at first instance, was one of those matters. On appeal the New York Supreme Court Appellate Division gave detailed consideration to the role of interpreters pointing out that the court must be satisfied that the interpreter is expert in the language used by the witness and can communicate with the witness. It said at pp544-545:
"While the particular technique of facilitated communication using keyboards, etc., is a relatively recent phenomenon, the more general problem of the means by which a speechimpaired witness can communicate at a trial has been before the courts in the past . . .
The test for the court in cases such as these is a pragmatic one. Can the interpreter, or in this case the facilitator, effectively communicate with the witness and reliably convey the witness's answers to the court? A determination of these questions does not require expert testimony. To the contrary, the proffered facilitated communication lends itself to empirical rather than scientific proof. Thus, the test proposed by the County Attorney, whereby the court could question Luz outside the presence of the facilitator and then hear her responses through facilitated communication, should adequately establish whether this is a reliable and accurate means of communication by Luz. Factspecific questions can be devised which should demonstrate whether the answers are subject to the influence, however subtle, of the facilitator. If the court is satisfied from this demonstration that the facilitator is 'qualified' to transmit communications from Luz to the court, then the facilitator may be appointed as an interpreter . . ." (emphasis added)
The Court explained that a Frye test (a test of general acceptance in the scientific community) was inappropriate "since the ability of an interpreter, translator, 'signer' or anyone else who transmits the testimony of a witness is not based on a scientific theory". Pointing out that no such test had been used before a Spanish interpreter was provided for Luz's parents, the Court stated, at p545:
"It was enough that the interpreter and the respondents could understand each other and that the interpreter swore to translate accurately."
Like many of the contentious cases in this area (but not McDonald and Wallace), Luz P is a case where the child had alleged sexual abuse. In that context the Appellate Court in Luz P, at p546, cited with approval the following passage from Matter of Marshall R,(185) where an Appellate Court observed:
"The best interests of the child are far more important than some technical objection which, on this record, appears to have little substance. The testimony of th interpreter should have been admitted, and then it would become the duty of the court to weigh and evaluate such testimony in the light of the circumstances under which it was given."
The Court approved the preliminary test proposed by the County Attorney (which was the same as that used by Senior Master Jacobs in McDonald), namely that Luz P be questioned by the Court outside the presence of the facilitator and then convey her answers through facilitation. The Court said that that test "should enable the court to come to a reasoned conclusion as to the reliability of the facilitator without the necessity of expert testimony". The Court sensibly continued, at p546:
"If the court is not convinced that the facilitator is reliable, then that facilitator may not serve as the interpreter. However, such a finding should not foreclose Luz from testifying if a reliable facilitator can be found elsewhere. The DSS will of course have the burden of establishing the reliability of the facilitator at the preliminary proceeding."
When the matter of Luz P was referred back to the Family Court for the testing proposed by the County Attorney, Luz P passed very well. As "The Times Herald Record" daily newspaper of 31 July 1993 reported:
"For the first time in New York state court history, a test was conducted yesterday to determine if an 11yearold autistic, retarded girl is the real author of words she types while a teacher holds her wrist. . . .
In yesterday's test in a small room at BOCES, a table was set up with a cardboard barrier running down the center. The idea was to show the child and teacher a different picture. Neither could see the other's picture. The pictures could be identified by a child with a mental age of about 5. The teacher ignored her own pictures most of the time and looked at the child. She facilitated with a light touch on top of the child's wrist.
Of the 10 pictures that were different from those of the teacher, the child identified five correctly and failed to identify five.
When the teacher and the child were shown the same picture, the child identified six correctly and failed to identify four.
In no case did she give the picture that the teacher saw when it was different from hers." (emphasis added)
When the County Attorney called Luz P's evidence, tragically for Luz P and for facilitated communication too, the attorney for the parents succeeded in preventing the evidence being given. He persuaded Family Court Judge Slobod to impose new conditions on the method of giving evidence.
"The Times Herald Record" of January 12 1994 described that hearing:
"The morning hearing started with county attorney Lewis A. Borofsky questioning the girl.
Conditions for questioning had been agreed upon by the court and opposing attorneys. The teacher would be temporarily deaf by wearing headphones that played staticlike white noise.
The idea was that if the teacher could not hear the questions, she could not answer them, assuring that the answers would truly be the child's.
Borofsky prepared the child for court by practising the method with her in about 20 onehour sessions since September.
First, yesterday, he asked simple questions and the child was able to type several answers correctly, some with no support from the teacher.
Second, he asked more pointed questions leading up to the alleged abuse. The child grabbed her teacher's hand to answer them. Sometimes she stumbled, but mostly she answered rationally.
But then attorney Alan Zwiebel, representing the parents along with attorney John Burke, objected. Zwiebel stopped the hearing, insisting that the teacher was reading the questioner's lips.
He demanded that the teacher not look at the questioner or at the keyboard while further questions were being asked and answered.
Without the teacher able to see the keyboard, the child's answers turned into gibberish."
The County Attorney said: "The court changed the goalposts on me.
The child did great until they changed the rules. Now they want to change them again. Nothing that happened today proves that facilitated communication doesn't work. All they proved is that if you isolate the child from the facilitator, she can't communicate."
He refused to continue testimony under the new conditions. The double request of the attorney for the parents should never have been acceded to by the Court. First there was no reason to believe that the facilitator would have consciously or unconsciously read the lips of the questioner. Some judges, like Judge Gorman in Wallace and Judge Slobod in Luz P and the Guardianship Board in Carla's case, seem to be prepared to believe that there is something disreputable about a care worker or teacher trying to help a disabled person communicate, so as to have his or her voice heard in a Court. Even when there is no evidence adverse to the facilitator at all, they are prepared to believe that there are numbers of facilitators out there prepared to make up false allegations and perpetuate frauds on Courts. Never before in the history of the law have such generalisations been made by Courts about people on the basis of their skills and occupation rather than their personal qualities. How much preferable and more sensible is the approach of Jenkinson J and Senior Master Jacobs in McDonald and that of Judge Frater in Laumalili.
But even if a judge were prepared to believe the worst of all facilitators simply because they are facilitators, why in the world should the facilitator in Luz P have been required not only to look away from the questioner but also to look away from the keyboard while questions were being answered. Once the facilitator was placed so that she could not lip read or hear the questioner, there was no reason at all to prevent her looking at the keyboard. In fact, because of the disabilities suffered by those who require facilitation in order to communicate, it is usually essential that the facilitator look at the keyboard. Sometimes the pointing finger does not rest precisely on one letter but rather between two or three keys and it is necessary for the facilitator to ask questions of the witness to clarify which letter is intended. That is done by asking for a "Yes/No" response to questions such as "Is it the Y?"
It is clear that the test conditions imposed by Judge Slobod went far further than those proposed by the County Attorney and approved by the Appellate Court. Judge Slobod, on 25 February 1994, delivered unreported reasons purporting to explain why she had imposed those further conditions, but nothing in her reasons gives any justification for requiring the facilitator to look away from the keyboard. The fact that, when the facilitator could not look at the board, the answers were complete gibberish shows that facilitated communication does not work under those circumstances. But it was already shown that it did work under other circumstances, even where the facilitator did not know the questions asked. The object of the Court should be to hear the evidence of the witnesses. Why then did it allow a completely unnecessary obstacle to be put up to prevent the witness giving evidence in the only way which her disabilities allowed?
On 25 February 1994 the County Attorney sought to call two witnesses to give evidence as to communications Luz P had made to them by facilitated communication. The attorney for the parents objected. The County Attorney pointed out that in sex abuse cases the Court of Appeals had specifically stated that it is not necessary for a child to testify before a Court but that: "What is needed is out of Court statements and corroboration". He submitted that as Luz P had proven her ability to communicate using facilitated communication, her out of Court statements made that way should be admitted into evidence. Her Honour acknowledged the difficulties in the case. She said:
"The Court is well aware that children who are unable to communicate are at extreme risk of being abused or neglected because they can't tell anyone, and that's what makes this kind of a case so difficult." (186)
Nonetheless she said she was not satisfied the communications were those of Luz when they related to abstract issues. She did not consider asking Luz to verify whether the answers were her own with independent "Yes/No" answers. She dismissed the charges. The matter is now awaiting an appeal hearing.
The most recent case (188) where facilitated communication has been recognised by the courts is State of Kansas v Warden. Sadly this case too, concerned sexual abuse of a young person with a disability.
The boy, known as JK, was twelve years old at the time he gave evidence at the trial of Warden. JK was diagnosed with autism and severe or profound mental retardation. He became a resident of an institution now called Heartspring in 1989. Prior to that he was nonverbal and did not respond to verbal directions. The view was that "in general JK had skills comparable to those of a 'normal' two or threeyearold". By 1992 after about three years at Heartspring he could use sign language for some words, indicate yes and no, respond to commands, and use a picture communication book to indicate his immediate needs and wants. He had good motor skills. In February 1992 Heartspring began using facilitated communication and Therese Conrad, a speech pathologist there, selected JK as one of her first students to use facilitated communication.
As was the case in Laumalili, a change in JK's behaviour first drew attention to him. A residential case manager (not Warden) reported that JK would have tantrums whenever the residential case manager's pants were off and the tantrum would cease when the case manager put his pants on. This behaviour was reported to Conrad the speech pathologist. She did not know how to pursue the issue with JK. She interviewed him with Dr Marks, the director of the Department of Psychology at Heartspring. Several interviews took place. Dr Marks asked questions while Conrad facilitated JK's communication using an Epson real voice communicator.
At the first interview JK was asked if he liked various individuals at Heartspring. He answered "YES" to each until he was asked if he liked Warden. He typed "NO NO NO". When asked what he disliked about Warden, he typed "DON'T ASK". (189)
At the second interview Dr Marks again asked about Warden. JK typed "HUPMQU" which Dr Marks understood to mean "Help Me". He asked what he could do to help. JK typed "STOP MARC SYON PLTASD". When asked to clarify the last word he typed "PLEASE", i.e. he had mistyped "T" for "E" and "D" for "E". Asked to clarify the third word of the message "SYON", JK typed "JJSOON". The message thus was intended to read "STOP MARC SOON PLEASE". On further questioning as to what Marc did, JK typed two messages - one contained the words "PENIS" and "FDHUC", the other had "FUK" in it twice. JK was asked if that meant Warden fucked him and he replied "YES".
On the third day of interviews JK typed that Warden "FUK MSE". He answered "NO" when asked if he meant that Warden administered a suppository (which happened several times a week). Asked what "FUK" meant, he typed "MUK BUTT HURT".
Some of JK's answers were very difficult to interpret but in these three interviews and in later interviews JK repeated the allegations that Warden "fucked" him and made his "butt hurt" and used his "penis" to do so. He repeatedly denied that anybody else did this to him.
Conrad was the facilitator for each interview. She did not wear headphones and could hear all the questions asked. Conrad asked JK if he would convey the information with another facilitator and he refused. The evidence was that when JK was calm he could communicate with support at the forearm or elbow but when he was not calm he needed support at the wrist. He also needed help to prevent perseveration on the same key.
Warden was charged with taking indecent liberties with a child. JK was called to give evidence. Newspaper articles from the "Wichita Eagle", Wichita, Kansas, March 1993, give a graphic account of his giving of evidence and of the attack on facilitated communication in the Court, as well as of the final guilty verdict.
Judge Brooks of the Sedgwick County District Court seems to have recognised, in ways Judge Gorman in Wallace did not, the restrictions caused by JK's disability.
Before JK was called to give evidence Judge Brooks received evidence that because of his condition and his discomfort with anything outside his daily routine, it was not likely he would be able to testify in a court room. The judge took steps to eliminate as many distractions as possible. He restricted further access to the Court, told spectators then in court not to move, and warned all in Court that, if JK began to behave violently, nobody but his counsellors was to touch him. JK, while giving his evidence, had fits of beating his own head, tearing his speech pathologist's hair, stomping and moaning. When he became agitated at the nature of the questioning he darted about the court room. When JK did get upset it took four counsellors to restrain and calm him and eventually the hearing had to be adjourned. Crossexamination took place outside the Court and the jury was shown it on closed circuit television.
Judge Brooks dealt with requests by the attorney for Warden that JK be asked to give his evidence with a different facilitator or with different procedures, with much more perceptiveness than did Judge Gorman in Wallace or Judge Slobod in Luz P. Judge Brooks said:
"[JK] is an individual, I think as an individual we have evidence on the record that familiarity and predictability are essential if he is to have any chance at all of communicating. And for that reason I think there's abundant evidence that to change the protocol at this time is to almost make it a worthless exercise to attempt it." (190)
On appeal three aspects of the giving of evidence with facilitation were challenged:
(i) it was suggested that a different facilitator should have been used;
(ii) it was suggested that the facilitator should have worn headphones with white sound so she could not have heard the questions; and
(iii) it was suggested that the facilitator should have been directed to look away from the keyboard.
The Supreme Court of Kansas appears to have accepted that these three conditions constituted a protocol suggested by Professor Biklen of Syracuse University. He introduced facilitated communication to America after coming to Melbourne to work with Ms Crossley at DEAL Communication Centre. Professor Biklen has written:
"I have never advocated a protocol that involves the facilitator wearing headphones or looking away from the keyboard. My advice to prosecutors as well as to attorneys representing persons accused is to have a second facilitator hear the individual's statements, to see if the person can repeat the allegation, with sufficient detail to confirm that the words typed with facilitation originate with the person using facilitation and not the facilitator." (191)
Professor Biklen did not give evidence in the Warden hearing and it seems that somehow his views were misrepresented to the Court.
However the Kansas Supreme Court, even acting on the (wrong) basis that Professor Biklen recommended those three conditions, very sensibly held:
"The failure to follow the recommended protocol goes to the weight of JK's testimony, not to its admissibility." (192)
In giving his evidence JK used Conrad as his facilitator. He used a "Yes/No" board and a Canon Communicator. Conrad did not wear headphones and heard all the questions. JK was not calm and was supported at the wrist. JK gave evidence that Warden was in Court. He added that Warden had "fucked" him with his "penis".
There was evidence that Warden had been interviewed by Wichita Police Detective Beeson and had told him of an incident when JK had come into the bathroom naked to use the toilet while Warden was in the shower. In the statement Warden said he got out of the shower while JK was urinating and his erect penis rubbed against JK's back. Warden said he moved his penis up and down JK's back and to his anus but did not penetrate. He said he knew how much it hurt to be penetrated and did not want to hurt JK.
There was evidence that Warden had also admitted to a coworker that he was accused of molesting JK and that he had done it.
At the hearing Warden gave evidence. He did not deny having told Detective Beeson that he had rubbed his penis on JK's back and "butt", but he said he had made that statement to bring the interview to an end and get out of there.
Warden was found guilty of the charge of taking indecent liberties with a child. On appeal the Supreme Court quoted the following passage from Judge Brooks' comments at the trial:
"[W]e've had a great deal of scientific testimony here and I don't want to get lost in jargon. To me the DSM-III is an extremely useful tool in categorizing people but people are not their labels. [JK] is more than simply a diagnosis, he is what he is, the diagnosis is the nearest pigeonhole we can find for him. . . .
There is indication that he communicates. And this is before this incident and his communications pointing to pictures, his ability to show affection, and the demonstration of the technique of backward pushing merely keeping him off the keyboard is indicative of other than direction or cuing.
But that having been said there are things about the particular incident which are validating. That the facilitator did not previously know that [JK] was going to make an accusation of abuse, his -- the things typed by him with the aid of his facilitator seem to speak for themselves and there is some detail corresponding to the statements that have been proffered with regard to the penis and the butt. And some independent validations, pointing to names and things like that.
I believe that there is enough -- I'm going to find that there's enough apparent reliability that these things [the out of court statements] may be shown to the jury if [JK] remains unavailable. I also believe and -- that juries are capable of listening to the arguments that [defense counsel] has made about the reliability of this thing.
The Court is not God. I think that there are many things to be argued back and forth about this as to how reliable [JK's] communications are. I am willing to place the faith in the jury, let them hear the evidence and make the argument to them." (193)
The Supreme Court of Kansas quoted extensively with approval from the decision of the New York Court of Appeals in Luz P and agreed with that Court that the Frye test was inapplicable. The Supreme Court of Kansas stated:
"FACILITATED COMMUNICATION is just what its name implies: a method of COMMUNICATION. Unlike the tests revealing that JK is autistic and mentally retarded, which require scientific interpretation of JK's skills and behaviors, FACILITATED statements require no scientific interpretation. The device used produces a typewritten tape of what is entered; the content of the statements are capable of interpretation by lay jurors just as any other form of written English. . . .
However, when statements made using FACILITATED COMMUNICATION are admitted at trial, certainly the credibility of those statements and the weight to be given them are issues for the finder of fact, just as with other types of testimony. . . . The trial court, after holding that Frye did not apply to the admission of FACILITATED statements, permitted evidence challenging the validity of the FACILITATED COMMUNICATION process itself. This was proper." (194)
The Supreme Court did suggest that various measures should have been taken to validate JK's evidence. It referred to evidence that he could independently indicate "Yes" and "No" in the same manner as the general public, by shaking his head up and down for "Yes", and nodding from side to side for "No". The Court suggested:
"JK should have been allowed, indeed required, to independently sign yes and no. Where a person is physically able to do so, the yes/no board and COMMUNICATION device should not be held by the FACILITATOR and should be placed on an immovable surface. . . . Certainly a person should not be disqualified as a witness because of a disability. . . .
Procedures should also be followed during the witness' testimony using FACILITATED COMMUNICATION. Steps should be taken to minimize the potential for FACILITATOR influence or cuing (including the headphone technique described above or having the FACILITATOR look away from the COMMUNICATION device). [As set out above, this comment is based on a misrepresentation of Professor Biklen's recommended protocol.] The witness should give independent responses, without FACILITATION, where possible, such as by using signs or other COMMUNICATION if the witness has such a capability. (For instance, in this case JK could have used anatomical drawings to identify body parts and explain what happened.) The witness must be sworn. The FACILITATOR should be appointed as an interpreter and placed under oath." (emphasis added) (195)
However the Court concluded that even though few of those procedures had been followed at trial, the failure did not require reversal of the guilty verdict. It referred to other evidence that JK's communication with facilitation had been validated at Heartspring. As to the submission that JK had been diagnosed with autism and mental retardation, the Supreme court on appeal said:
"One theory of autism and why FACILITATED COMMUNICATION works with autistic individuals is that autistics have a hidden literacy which has not been discoverable because these individuals have had no means to communicate their intelligence. If JK is able to validly communicate by FACILITATION, there is of course a question about the validity of the tests showing him to be severely or profoundly mentally retarded." (196)
The court concluded:
"The trial court considered all of this information in deciding that JK's use of FACILITATED COMMUNICATION was reliable. Warden confessed to the crime, and he made an admission to a coworker, though he recanted both at trial. More importantly, the jury observed for itself JK's testimony through FACILITATED COMMUNICATION and could decide what weight, if any, to give his testimony. The jury heard testimony concerning the potential for FACILITATOR influence or cuing and the lack of quantitative research validating any FACILITATED COMMUNICATION. It cannot be said that no reasonable person would agree with the trial court's ruling permitting JK to testify."(197)