Facilitated Communication: Novel Scientific Evidence or Novel Communication?

Authors

Charles A. Phipps, American Prosecutors Research Institute's National Center for Prosecution of Child AbuseFollow
Mark L. Ells, American Prosecutors Research Institute's National Center for Prosecution of Child AbuseFollow

Abstract

I. Introduction

II. Admissibility of Testimony from Witnesses Who Require In-Court Assistance to Communicate ... A. Competence of Special Classes of Witnesses ... 1. Witnesses with Physical and Mental Disabilities ... 2. Competence of Children ... B. Admissibility of Testimony from Witnesses Who Communicate with Third-Party Intervention ... 1. Sign Language ... 2. Idiosyncratic Language ... C. Burdens of Proof ... 1. Proving Competency of a Witness ... 2. Proving Qualifications of an Interpreter ... D. Summary of Cases Involving Third-Party Interpreters

III. Admissibility of Testimony from Witnesses Whose In-Court Testimony Is Affected by Out-of-Court Procedures … A. Frye v. United States ... B. Courts Applying a Frye Test to Hypnotically Affected Testimony ... C. Courts Holding Frye Inapplicable to Hypnotically Affected Testimony ... D. Constitutional Issues ... E. Summary of Hypnosis Case Law

IV. Legal Controversy Surrounding Facilitated Communication

V. Application of Precedent to Facilitated Communication ... A. Cases Applying Frye to Testimony Affected by an Out-of-Court Procedure ... B. Cases Not Applying Frye to Testimony Affected by an Out-of-Court Procedure ... 1. Step One: Determining the Qualifications of the Interpreter ... 2. Step Two: Swearing the Interpreter ... 3. Step Three: Assessing Unfair Bias ... 4. Burdens of Proof ... C. The Role of Expert Testimony

VI. Conclusion

Recommended Citation

Charles A. Phipps and Mark L. Ells, Facilitated Communication: Novel Scientific Evidence or Novel Communication?, 74 Neb. L. Rev. (1995)
Available at: https://digitalcommons.unl.edu/nlr/vol74/iss4/2