Thursday, October 5, 2017
"Facilitated communication is defined as follows: 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."...“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."...When facilitated communication is initially being used, the communicator typically is supported above or below the wrist by the facilitator....The goal is for the facilitator, over time, to move the support further back on the arm or shoulder so that there is less direct contact until there is no contact....That technique is known as "fading."...The facilitator applies backward pressure and centers the communicator after each letter is typed to prevent the communicator from repeatedly striking the same key, one of the manifestations of behavior also known as perseveration....Because facilitated communication is a joint activity, however, there is potential for what is known as "cuing," where the facilitator may knowingly or unknowingly anticipate or in another way assist the communicator in selecting certain letters.
Given the above, should testimony obtained by facilitated communication be admissible? That is the issue of first impression addressed by the Court of Appeals of Indiana in its recent opinion in Hope Source v. B.T. by Troutman, 2017 WL 4159715 (Ind.App. 2017).
In Hope Source,
B.T. [wa]s a minor, non-verbal child with severe autism...He [wa]s unable to verbally communicate intelligibly. When B.T. was twelve years old, he received therapy for his autism through Hope Source, Max Sigmon, Julie Brant Gordon, and Dr. Momi Yamanaka (collectively "Hope Source"). B.T. began typing sentences, via facilitated communication, using a supportive typist, also known as a facilitator, in October 2013.
B.T. uses an iPad containing an assistive typing program/application that reads each letter and then each word typed by B.T. B.T.'s facilitator stands or sits along his right shoulder holding the shoulder of his shirt. He no longer requires wrist or elbow support during his communications. Prior to the use of facilitated communication, B.T. could not communicate in any typed or written form. Facilitated communication is now the sole method by which B.T. can communicate.
Later, B.T., through his mother, brought a civil action against Hope Source, claiming that B.T. was abused at Hope Source. In an odd twist of fate. Hope Source claimed that B.T. shouldn't be able to testify against it via facilitated communication. Thereafter,
the trial court found that B.T. carried the burden of establishing that he is the one communicating by way of facilitated communication....
More specifically, the trial court found that a determination of whether the facilitator could "effectively communicate with the witness and reliably convey the witness's answers to the court" lends itself to empirical rather than scientific proof....The trial court further held that cases from other jurisdictions suggest that the reliability of facilitated communication should be determined on a case-by-case basis....The trial court concluded, while rejecting cases from other jurisdictions applying evidentiary rules at the outset of the determination, that fact-specific questions could be devised for B.T. which would demonstrate whether the answers were B.T.'s, or were under even the most subtle of influences by the facilitator....If the trial court was convinced that the facilitator was "competent, trained, and skilled in order to honestly and candidly transmit communications, under oath, from B.T. to the court, then the facilitator may be appointed to carry out such a task either at the deposition or at the time of trial."...
The trial court held that it must be satisfied that the communicated thoughts were those of B.T. and not the facilitator. Otherwise, the statements would not be allowed in evidence....The trial court placed the burden of making the request for holding such a demonstration hearing on the parties.
Hope Source filed an interlocutory appeal, but the Court of Appeals of Indiana agreed with the trial court. Specifically, the court concluded that
It is within the sound discretion of the trial court to determine whether a child is competent to testify based upon the court's observation of the child's demeanor and responses to questions posed to him by counsel and the court....A trial court's determination that a child is competent will only be reversed for an abuse of discretion....
The trial court's thoughtful decision including detailed findings and conclusions, which greatly aided our appellate review, serves as a roadmap for the determination if B.T. is testifying, an opportunity for the defendants to challenge his competency, and, if his testimony is admitted at trial, an opportunity to challenge his credibility by way of evidence challenging facilitated communication as a method of communication. We find no abuse of discretion in the trial court's preliminary ruling on the request to bar the use of facilitated communication.