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

P R OSECUTING A LCOHOL-FACILITATED S EXUAL A SSAULT
• How many times? In what capacity?
• Have you received any specialized training on evaluating whether a
person is intoxicated?
• How were you able to tell that they were intoxicated? (Ensure that the
expert lists signs of intoxication.)
In addition to general physical observations, can tests be conducted to
determine whether a person is intoxicated?
• What are those tests?
• Example: Ask the person’s name, the date, the name of the current
U.S. president, field sobriety tests, finger to nose test, etc.
• What are you looking for when you conduct those tests?
• Based on those tests, how can you conclude that a person is
intoxicated?
Hypothetical:
• State the facts of the case that relate to the person’s level of intoxication.
• Are you able to form an opinion to a reasonable degree of scientific
certainty regarding whether the person in the hypothetical was intoxicated?
• In your opinion, was the person intoxicated?
• Are you able to form an opinion to a reasonable degree of scientific
certainty about whether a person’s decision-making abilities, processing
of information, inhibitions, etc. would be affected by this level of
intoxication?
• Would a person at that level of intoxication possess the mental capacity
to consent to intercourse?
• How would this affect the person’s ability to consent to intercourse
based upon his/her intoxication?
■ Be cautious not to ask whether or not the person actually consented
as this may invade the province of the fact finder. Make sure to check
the law in your state when asking this question to ensure that it is
phrased properly.
• What is your opinion?
Explain the effects of alcohol on a person. (Note:An alternative way to ask
this is to have the expert explain the Dubowski stages of intoxication. 127 )
• What is the effect on physical abilities?
60 N ATIONAL D ISTRICT ATTORNEYS A SSOCIATION