Prosecuting Alcohol-Facilitated Sexual Assault - National District ...

T HREE-STEP P R OCESS
The defense may attempt to challenge the witness’s testimony on the
grounds that the witness is not competent; however, it is unlikely that a
court will find a witness incompetent on this basis as long as the witness
can testify that she was able to perceive the incident. 49 There is a distinction
between attacks on competence and attacks on credibility. 50 When a
witness is intoxicated at the time of an occurrence about which the witness
has testified, intoxication is a proper matter for the jury to consider
as affecting the witness’s credibility. 51 “If the witness was under the influence
at the time of the events which [s]he describes in his[/her] testimony
or at the time [s]he testifies, this condition is provable, on cross or by
extrinsic evidence, to impeach.” 52
Ability To Remember
The third factor that relates to a victim’s credibility is the victim’s ability
to remember what happened. In order to be able to testify about what
happened, the victim must, of course, be able to remember what happened.
If she does not remember, there must be some other way to prove
what happened or the case cannot go forward. 53 Although the victim
may not remember every detail of the assault, she may have other information
that is crucial to the case.When interviewing the victim about
her memory, explain why you are asking. Encourage the victim to speak
with an advocate for additional support.
Alcohol consumption diminishes the ability of the victim to remember
what happened.“As the amount of alcohol consumed increases, so does
the magnitude of the memory impairments.” 54 Large quantities of alcohol,
particularly if consumed rapidly, may result in the victim experiencing
either a fragmentary or an en bloc blackout. 55 Fragmentary blackouts occur
when people may recall portions of the episode after the incident when
cues for events are provided. 56 En bloc blackouts have “definitive starting
points, contain amnesia for all events within a discrete period, end with a
sense of lost time, and require a high blood alcohol concentration.” 57 The
en bloc blackout is not a “process of forgetting, but rather one of not
remembering.” 58 “In contrast, fragmentary blackouts involve a more transient,
perhaps forgetful memory loss for which aspects of experience are
recalled via provision of pertinent cues.Thus, memory traces form but
require facilitation to be accessed.” 59
NDAA
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