Barteau, Senior Judge
Statement of the Case
In this interlocutory appeal, we are asked to determine whether testimony obtained by facilitated communication is admissible in evidence. In this case of first impression in Indiana, we hold that in certain situations it can be. Here, we affirm the trial court’s preliminary decision regarding the procedure for determining the admissibility of the contested evidence.
Facts and Procedural History
B.T. is a minor, non-verbal child with severe autism, who was fourteen years old at the time of the trial court’s order. He is unable to verbally communicate intelligibly. When B.T. was twelve years old, he received therapy for his autism through Hope Source, Max Sigmon, Julie Brant Gordon, and Dr. Momi Yamanaka (collectively “Hope Source”). B.T. began typing sentences, via facilitated communication, using a supportive typist, also known as a facilitator, in October 2013.
“Facilitated communication is defined as follows: a method of helping an individual produce typewritten material on a keyboard or communication device with the intention of compensating for difficulties in motor control.”…
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In our opinion, an assessment of the evolving caselaw in this novel area leads us to the conclusion that there has been a shift from an initial focus on the reliability of the science involved, to an emphasis on the examination of the details of the application of facilitated communication to each specific case.
Turning to the present case, we recite the oft-stated principle that decisions regarding the admissibility of evidence lie within the trial court’s discretion. Hopper v. Carey, 716 N.E.2d 566, 570 (Ind. Ct. App. 1999). “Even if a trial court errs in a ruling on the admissibility of evidence, we will only reverse if the error is inconsistent with substantial justice.” Id.
We note that in deciding what procedure should be used to determine the admissibility of B.T.’s testimony, the trial court concluded that it must first decide whether B.T. was the one communicating by use of facilitated communication. Although some cases refer to this decision as one involving literacy, others deem the decision to be one involving competency. See Hahn, 191 F. Supp. 1051 (literacy); Warden, 891 P.2d 1074 (competency).
Under Indiana Rule of Evidence 601, “Every person is competent to be a witness except as otherwise provided in these rules or by statute.” A determination as to a witness’s competency lies within the sound discretion of the trial court and is reviewable only for a manifest abuse of that discretion. Harrington v. State, 755 N.E.2d 1176, 1181 (Ind. Ct. App. 2001). It is within the sound discretion of the trial court to determine whether a child is competent to testify based upon the court’s observation of the child’s demeanor and responses to questions posed to him by counsel and the court. Id. A trial court’s determination that a child is competent will only be reversed for an abuse of discretion. Id.
The trial court’s thoughtful decision including detailed findings and conclusions, which greatly aided our appellate review, serves as a roadmap for the determination if B.T. is testifying, an opportunity for the defendants to challenge his competency, and, if his testimony is admitted at trial, an opportunity to challenge his credibility by way of evidence challenging facilitated communication as a method of communication. We find no abuse of discretion in the trial court’s preliminary ruling on the request to bar the use of facilitated communication.
Conclusion
In light of the foregoing, we affirm the decision of the trial court.
Affirmed. Barnes, J., and Altice, J., concur.