Setser was convicted of murder and several other crimes. She moved to suppress her confession, arguing that she was unable to knowingly waive her Miranda rights.

At the time of the confession Setser was 16. There was conflicting evidence as to whether her IQ was 77 or "average." Setser offered expert testimony that her mother had been an active alcoholic during her pregnancy, and that Setser "displayed symptoms of fetal alcohol syndrome." 932 P. 2d at 486. There did not, however, appear to have been an actual diagnosis. At the age of 13 Setser was admitted to a psychiatric hospital for molesting other children, and was treated for depression and severe behavioral problems. 932 P. 2d at 486.

In upholding admission of the confession, the appellate court explained:

932 P. 2d at 488. This portion of the opinion suggests that the court in a case such as this wanted an expert witness to explain that FAS, and an I.Q. of 77, and/or other conditions would result in an inability to understand legal rights and the repercussions of waiving those rights.

Like other decisions regarding waivers of rights, this decision makes clear that it would be extremely valuable to have a study, similar to the MacArthur study regarding juveniles, regarding (a) the I.Q. level at which adults or adolescents do not understand Miranda rights and the repercussion of waiving them, and (b) the impact on such understanding of FAS/FAE.