Blackout/Pass-out

Overview of the blackout/pass-out defense:
Blackout/pass-out

In “substantial incapacity” alcohol cases, a defense that victim appeared able to consent, and did consent, but was unable to remember due to alcohol consumption (blackout), rather than unconsciousness (pass-out). Common defense is that victim initiated or consented, but does not remember.

-fragmentary blackout : events are encoded, but alcohol inhibits recall later : can be “fixed” with appropriate cues

-en bloc blackout : memories never encoded; can never be recalled

–response to defense: expert testimony is irrelevant unless someone can present evidence that victim was blacked out; absent detailed information on amount of alcohol, concentration, timing, eating, past experience of victim with alcohol, no expert can diagnose victim; lay people (e.g.: accused) cannot diagnose blackout;

-judges (& TC) routinely allow these experts w/out challenge; (one judge took judicial notice of blackout!); TC: file a motion to exclude; see discussion in Prosecuting Alcohol Facilitated Sexual Assault, infra.