State v. Goldenstein
505 N.W. 2d 332 (Ct. App. Minn. 1993)

Mr. and Mrs. Goldenstein were convicted of sexually abusing several foster children, all of whom had apparently been diagnosed with FAS. The defendants were convicted on the basis of out-of-court statements that had been made by the children.

The court ruled that the children were all incompetent to testify.

"The trial court found the older girl incompetent on the basis of lack of ability to tell the truth and the younger girl incompetent on the basis of her lack of ability to remember what happened. The trial court found the boy incompetent because he refused to answer questions and was frightened."

505 N.W. 2d at 342 n. 7.

The trial judge refused to permit the defense to present testimony by an expert on FAS who would testify about "the impact the disease has on children's behavior and their ability to remember and describe events." 505 N.W. 2d at 342. The proposed witness was Dr. Robert W. ten Bensel. The trial judge did so on two grounds: (a) Dr. ten Bensel could not, based upon the records before him diagnose the children with FAS, and (b) the witness had not interviewed or examined the children (a result of the court's own order prohibiting any interview or examination).

In overturning the conviction, the appellate court explained:

"The admissible evidence at trial, especially the evidence from the medical and psychological professionals, often touched on FAS. The jury was never provided with information about the syndrome. The state contends that information about FAS is not relevant to the case and has no bearing on whether the children were sexually abused. FAS, however, apparently impacts a child's ability to remember and restate events. If medical records do, in fact, contain a FAS diagnosis of the children, this medical information directly affects the credibility of the children, would be helpful to the defense, and the expert testimony would assist the jury in discharging its factfinding duty."

505 N.W. 2d at 342.

The appellate court also held that the trial court had violated the constitutional rights of the defendants when it excluded evidence that the children had made false accusations of sexual abuse against another person. 505 N.W. 2d at 340.