State v. Warden

• Decision Date: 10 March 1995
• Docket Number: No. 70377,70377
• Citation: 257 Kan. 94,891 P.2d 1074
• Parties: , 63 USLW 2597, 6 NDLR P 254 STATE of Kansas, Appellee, v. Marc R. WARDEN, Appellant.
• Court: Kansas Supreme Court

Page 1074

891 P.2d 1074

257 Kan. 94, 63 USLW 2597, 6 NDLR P 254

STATE of Kansas, Appellee, v. Marc R. WARDEN, Appellant.

No. 70377.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. The test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), requires that before expert scientific opinion may be received in evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. If a new scientific technique's validity generally has not been accepted as reliable or is only regarded as an experimental technique, then expert testimony based on its results should not be admitted into evidence.

2. The test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), does not apply to testimony by means of facilitated communication. As long as a facilitator is only assisting a witness in communicating responses to questions to the court, scientific proof is not involved and the issue is whether the facilitator can reliably convey the witness' answers to the court.

3. The trial court must satisfy itself that testimony conveyed through facilitation is in fact the testimony of the witness, uninfluenced by the facilitator, and also that the witness understands the nature and obligation of the oath.

4. When statements made using facilitated communication are admitted at trial, 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. Testimony challenging the validity of such communication is admissible. Such testimony may include evidence of the technique of facilitated communication, its origins, and the level of acceptance by the scientific community in which it is used.

5. The admission of evidence, and the manner in which it is received, lies within the sound discretion of the trial court.

6. A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or her, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth.

7. When the qualification of a person to be a witness is in issue, the issue is to be determined by the judge. The judge may hear evidence and determine such matters out of the presence or hearing of the jury. But K.S.A. 60-408 shall not be construed to limit the right of a party to introduce before the jury evidence relevant to weight or credibility. The determination of disqualification need not occur outside the presence of the jury except in the instance of an accused's confession in a criminal case.

8. Guidelines for facilitated communication are set forth.

9. A two-part test evaluates alleged violations of a motion in limine. First, there must be a determination whether there was a violation of the order in limine. Second, if the order in limine is violated, there must be a determination whether the testimony elicited in violation of the order substantially prejudiced the defendant. The burden is on the defendant to show he or she was substantially prejudiced.

Ron W. Paschal, Wichita, argued the cause for appellant; J. Patrick Lawless, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellant Defender, was with him on the brief, for appellant.

Debra S. Peterson, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.

ABBOTT, Justice:

The defendant, Marc R. Warden, was convicted of indecent liberties with a child. This direct appeal raises issues concerning the victim's competency to testify and ability to communicate.

The alleged victim, JK, 12 years old at the time of trial, was diagnosed with autism and severe or profound mental retardation. Autism is a developmental disability which typically arises during early childhood. Autism is defined in the American Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders (3d ed. rev. 1987) and may involve cognitive disorder, including mental retardation, and an inability to communicate. Among the impairments associated with autism are impaired social interaction, impaired imitation of others, limited or no speech, and a restricted repertoire of abilities, activities and interests. People with autism frequently become distraught at any change in their physical environment or in their schedule or routine.

JK became a resident at the Institute of Logopedics (IOL) (now called Heartspring) in Wichita in September 1989. Prior to JK's admission he was nonverbal and nonexpressive, had limited receptive language, and did not respond to verbal directions. Nonverbal tests, including completing puzzles and identifying letters of the alphabet, were conducted to evaluate JK's skills. Through one such test in 1991, JK was classified at a mental age of 27 months; however, that test was believed to be invalid. In general, JK had skills comparable to those of a "normal" two- or three-year-old, but he performed some skills at the five-year-old level. JK was able to select his name from a group of words, as long as there were no other words beginning with a "J." He was able to identify only 5 letters of the alphabet. By 1992 JK still had no verbal skills but was able to sign (sign language) some words, indicate yes and no, respond to commands, and use a picture communication book to identify his immediate needs and wants. Among JK's skills were riding a bicycle without training wheels, walking backwards on a balance beam, dressing himself, brushing his teeth, and buttoning a shirt; JK had good motor skills.

Terese Conrad, a speech pathologist at IOL, noted that JK adapted quickly to communication systems, and she believed that he understood more than he was able to express. In February, 1992, IOL began using facilitated communication with some of its students, and Conrad selected JK as one of her first two students to use facilitated communication.

Facilitated communication is a method of helping an individual produce typewritten material on a keyboard or communication device with the intention of compensating for difficulties in motor control. It gives nonverbal individuals access to an alternative communication system. The technique was developed by Rosemary Crossley in Australia in the 1970's and introduced to the United States by Dr. Douglas Biklin in 1989. During facilitated communication, the communicator, or speaker, is typically supported above or below the wrist; ideally, the facilitator moves further and further back on the arm or shoulder so that there is less direct contact and eventually no contact, a technique known as "fading." The facilitator applies backward pressure and centers the speaker after each letter is typed to prevent the speaker from perseveration, or striking the same key again and again. Because facilitated communication is a joint activity, there is the potential for "cuing," where the facilitator may knowingly or unknowingly anticipate or in some other way be involved in assisting the individual in selecting certain letters.

The technique has not received unanimous support in the scientific community. Some members of the scientific community believe that facilitated communication is not a valid communication, while others think there has not yet been enough research on the technique to prove or disprove its validity. Drs. John Jacobson and Allen Schwartz of the New York State Office of Mental Retardation and Developmental Disabilities, both of whom have conducted research on the technique of facilitated communication, opined that the scientific community has not accepted the validity of facilitated communication because of the absence of scientific research demonstrating its validity. Rather, each instance of facilitated communication should be tested for validity. Dr. Henry Marks, the director of the department of psychology at IOL, opined that for some individuals, including JK, facilitated communication is valid.

Several studies reveal that the technique in general has not been validated. A study in which Drs. Jacobson and Schwartz were involved, the OD Heck study, evaluated the use of facilitated communication with 12 autistic individuals, all diagnosed with severe or profound mental retardation. Three conditions were evaluated. In the first condition, the speaker was shown a picture not seen by the facilitator, and the speaker described the picture without the use of facilitated communication. In the second, the speaker was shown a picture not seen by the facilitator, and the speaker described the picture with the assistance of facilitated communication. The third condition involved both the facilitator and the speaker being shown a picture, half the time the same picture and half the time different pictures. The subjects were facilitated at the wrist or hand. A panel of five evaluators voted on whether the speaker's answer comported with what was expected. The study revealed that if the facilitator did not see the picture, the speaker was unable to produce an accurate label. When the facilitator saw a picture, the labels were correct 43% of the time, but half of those labels were accurate for the picture seen by the facilitator and not by the speaker. Though these 12 subjects had been reported to be facilitating at the conversational level prior to the study, none of the subjects were able to validate their communication during the OD Heck study.

Another study in which Dr. Jacobson was involved, the Rome study, evaluated 23 individuals, two of whom had autism (one was legally blind) and all of whom were classified as having severe to profound mental retardation except one classified as moderately retarded. The speakers were shown a picture of a...