Allen J. was adjudged to be a juvenile under the Federal Juvenile Delinquency Act, based on an offense committed within the Navajo Indian Reservation. Allen J. was charged with forcing his then eleven-year old victim to engage in sexual contact. Both the defendant and victim were Native Americans

Allen J. challenged the competency of the witness. The witness was thirteen at the time of trial. Allen J. offered evidence that she suffered from FAS or "Fetal Alcohol Exposure." (127 F. 3d at 1294.)

Under federal law children are presumed competent to testify. A party objecting to such testimony must offer compelling reasons for doubting the competency of the witness in order to get a competency evaluation. The trial judge refused to order such an evaluation, and the appellate court agreed.

The courts framed the question as being whether the witness understood the difference between a lie and the truth, and understood she was supposed to tell the truth. (127 F. 3d at 1295.) What the courts apparently did not realize is that an individual with FAS/FAE may understand the difference between the truth and a lie, but may not grasp the difference between reality and fantasy.

This witness did not respond at all when asked "Do you understand what it is to tell the truth?" and "Do you know the difference between the truth and a lie?" She testified she was eleven (she was actually thirteen) and gave some nonsense answers (e.g. she answered "true" to the question "is it good or bad to tell a lie?") The judges assumed that, at worst, the witness would be "at least as capable of testifying as much younger children." (127 F. 3d at 1294). But even a four year old can accurately describe his or her own age.

Individuals with FAS/FAE are especially vulnerable, and could be preyed upon without redress if they were not able to testify. But the circumstances of this case illustrate the difficult problems that such testimony may raise in some instances.

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