I take some back, almost.
Again I was looking at the NKO Criminal Law Division’s practice tips and I came across this one dealing with the ““Blackout” defense to alcohol facilitated sexual assault.” No, it’s not. This title implies that the accused has deliberately gotten the complaining witness drunk. This is not the case in 99% of the cases and don’t let the prosecutor characterize it this way. There are several items or thoughts generated from this pointer helpful to the defense. This pointer could be useful to the defense in justifying experts. But let’s comment on the article from a defense perspective – I’ll do this stream-of-consciousness. No secrets here, it’s in plenty of records of trial.
1. The article tells the prosecution to hold the defense feet to the fire on qualified experts. Ha! Doesn’t the prosecution usually deny the expert and then offer one under the “adequate substitute” theory? I would be very interested in the number of times an expert request is made and not approved. Which leads to a next point about this. Now, remember this. When the prosecution denies the request and proffers a substitute, even if it turns out the substitute isn’t really qualified, what has the prosecution done? Conceded necessity. Once that happens it’s all over, the only issue is who and is that person available according to the timetable. Ooops, just gave a hint to the prosecution, but that’s OK.
3. So the prosecutor decides to go the whole gamut and not proffer an alternate and say and expert is ‘not necessary,’
M’lud, the defense hasn’t complied with Gonzales? Now assume, as I have seen quite a few times, the prosecution hasn’t done their homework and doesn’t have any understanding of what the expert and his or her theories are all about. Ask the judge to ask trial counsel to specify what is defective in the defense request. A bland statement from trial counsel that the defense has not satisfied Gonzales should always be challenged with tell us how and why. The prosecutor who hasn’t done his or her homework will show it and be stumped. I understand that the defense has the burden on the motion. But, if the prosecutor hasn’t done the homework, as the defense is required to do, how can a prosecutor stand in court and represent to the judge that the defense hasn’t shown how the expert will help or why the expert is necessary – where’s the candor.
4. Alright so now you have your substitute. I had an interesting situation not too long ago. I was refused my requested alcohol expert, the prosecution then proffered me an “adequate substitute” which I agreed the person was. When the expert testified the prosecution challenged his qualifications! Interestingly they did this through cross-examination not be motion in-limine. (Now the prosecution had proffered the same expert to the defense in a trial a month before mine and the expert had been qualified in the same areas I wanted when he testified in the prior trial.) The trial counsel could not understand why I and the judge had strange looks – hello! By offering the substitute the prosecution was vouching that the expert was in fact qualified. When the prosecution proffers an adequate substitute they have waived any objection to the persons qualifications. I think it is also reasonable to argue that they have waived any objection to the relevance and reliability of the testimony. Make the waiver absolutely clear, on the record if necessary. On redirect we were allowed to go through the procedure for the experts selection including that the prosecution gave him to us. Went over quite well with the members and completely took the sting out of the cross. The trial counsel had done a good job on cross but then lost the effect because of all the distraction. Counsel, please watch the members during trial. (OK, OK — situational awareness in the courtroom is a different topic.)
5. Now I know the prosecution often just grabs a name off a list to proffer as a substitute expert without thinking about it. I know some Navy commands where they hand you the list (the very outdated list) of experts on the Navy CrimLaw NKO site and tell you to pick one. Because of this I usually have to push the prosecution to give me the CV of the expert they propose as a substitute. I’m not going to pick one and hunt through what I know to be an outdated list to proffer to myself an “adequate substitute,” that’s the prosecution’s job. It is my view that the prosecution has a duty to examine the credentials, etc., of the proffered expert before making the proffer. Else how can they legitimately say, as they sometimes do, to the judge that they’ve offered an adequate substitute. If the prosecution hasn’t done the background can they really say that on the record. Where’s the candor? Insist on the right to review the CV and interview the proposed expert to see if they are qualified and you will accept them. I’ve read the CV, talked to the proffered expert, and gone back to the judge and said the proffered expert isn’t adequate, explained why, and the judge has agreed. By the way, this delays the trial – for those, prosecutors and SJA’s – who worry about trial metrics, this causes delays in the trial. Sure, I know it’s blamed on the defense, but where’s the honor in that.
6. I agree with the article that the defense should give a CV. As far as I’m concerned it’s required in any defense expert request.
7. The blackout defense is a misnomer. That’s the complaining witness’s defense as to why she’s now claiming rape and can’t remember anything about it. That’s what she tells the husband, fiancée, boyfriend happened. And yes, you do need a qualified expert – Toxicologist, psychologist, Drug & Alcohol counselor. The best I’ve had was psychologist who had spent almost ten years in the Navy drug and alcohol program treating and counseling alcoholics. So don’t get fixated on a toxicologist. (I have one appellate record I’ve just read in which the prosecution called a toxicologist.)
8. It’s not just the blackout. There are other things the expert can do for you in addition to the black-out, versus grey-out, versus pass-out issue. Why do you think the police always do a BAC on the accused, but not usually the complaining witness??? Because the LE know what a BAC on the complaining witness can do to the case. Why is there no BAC required of all participants and witnesses in a rape case? The fix is in. It’s odd, because if the complaining witness is there for medical treatment, why would not a competent medical care provider not want to know the amount of alcohol on board for its potential effects on medications? Now, I will say that I have seen some situations where the BAC was done. The absence of a BAC and drug test on the complaining witness is one of several biases I look for. Once you have a BAC you can back-extrapolate to a potential BAC at the time of the alleged offense. All you need is the date and time she stopped drinking, add one hour, and the date and time when the BAC was taken.
9. “Work with the victim pr
ior to trial.” Please do. It’s called coaching. There is plenty of research on memory and how questioning and coaching can produce answers that are not necessarily correct. So which answer is she giving – the truth, or one she’s learned to give as a result of VWAP/SARC/TC questioning. How do you know if she’s been claiming she passed out? Remember, she’s alleged rape, she wants to be believed, she wants to please, so she learns the correct answer. That answer comes from the TC who is actually talking to her from the NCIS/OSI/CID ROI. The TC is telling her what others said and saw, and she adopts that. Now, keep in mind you do some of that in interviews if you ask closed ended questions or pointed questions. (How to interview a complaining witness and do an Article 32, are different topics – and as OSI is so frequently fond of saying, “it’s trade-craft.”) There is plenty of psychology support for the concept of adoption. It’s all a form of learning.
10. Here is the all-time best resource I always give with my alcohol expert requests – I call it “The Brain on Alcohol,” its linked on the “Forensics” page. The science of alcohol induced blackouts is not inconclusive.
11. I also recommend (and use) the NDAA publication. Parts of it can be used to justify your defense expert request. The publication is a good resource; remember your Sun Tzu, know your enemy.
Friends who were with the victim. Sure they need to be interviewed and often are. But remember, if they were drinking their ability to see and observe is affected! Check the research, ask your expert. Can a witness who is drunk really tell you how drunk someone else is?
Surveillance tapes. I always ask NCIS/CID/OSI, did you look at the video – at the gate as the complaining witness allegedly stumbled and vomited through? No they say. Oh dear. By the time the defense gets involved it is too late. But yet here is the National District Attorney Association recommending to law enforcement to check the tapes. Photographs are also a good resource. Did a rape case where we had all kinds of pictures of this supposedly falling down passed out complaining witness. Pity for the prosecution they didn’t know about the photographs until trial. The photographs showed an energetic, clear-eyed, happy, dancing (in heels) complaining witness. (Preferably the photographs should be digital.)
Clothes worn that night are very important. No, not because she was asking for it. It’s the heels. A woman has trouble navigating on high heels sober . That explains why she’s wobbly after just a few drinks. So if she’s stumbling it’s the shoes. Or, it makes you wonder how she could navigate, walk, dance, drink, and talk, all at the same time if she was so drunk – don’t, please don’t forget to visit the bars she was at, check out the pavement. A broken cobbled pavement will cause walking problems to many people, so maybe it’s not all the drink.
12. If the prosecution gets an expert, hold their feet to the fire under R.C.M. 703(d) if the expert is not a military member or federal civilian employee. I’ve seen only one trial counsel, an Air Force trial counsel, properly comply. I’ve never seen a judge hold the prosecution’s feet to the fire on this. My dream is that one day a judge will actually tell the prosecution that they have to follow the rules the same as the defense and that they can’t use an expert until they’ve complied with R.C.M. 703(d), or because they failed to. I mean, doesn’t the prosecutor get upset because he/she says you haven’t complied with R.C.M. 703(d) and Gonzales? Hear the engines whine —
OK, that’s enough for today, I see some interesting news items.