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.

URL:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6F24126F497E100088256ABE0050E3BE/$file/9735781.pdf?openelement