Interesting NMCCA argument
NMCCA slipped in an oral argument on Friday in United States v. Wood. Audio is available here. These are the issues:
I. WHETHER THE GOVERNMENT’S EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR RAPE WHERE,INTER ALIA, THE ALLEGED VICTIM TESTIFIED THAT SHE WAS NOT DRUNK BUT THE PROSECUTOR ARGUED IN CLOSING THAT SHE WAS ACTUALLY EXTREMELY DRUNK AND, THEREFORE, COULD NOT CONSENT.
II. WHETHER IN A PROSECUTION FOR RAPE, APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE GOVERNMENT ADVANCED MULTIPLE INCONSISTENT THEORIES PRIOR TO AND AT TRIAL: 1) THAT THE ALLEGED VICTIM WAS NOT INCAPACITATED AND DID NOT CONSENT; 2) THAT THE ALLEGED VICTIM WAS NOT DRUNK BUT WAS INCAPACITATED AS A RESULT OF BEING DRUGGED BY APPELLANT AND THEREFORE COULD NOT CONSENT; AND 3) THAT THE ALLEGED VICTIM WAS SO DRUNK THAT SHE WAS INCAPACITATED AND COULD NOT CONSENT.
III. WHETHER APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE PROSECUTION SUPPRESSED PHOTO AND TESTIMONIAL EVIDENCE FAVORABLE TO THE DEFENSE THAT WAS MATERIAL TO BOTH GUILT AND PUNISHMENT.
IV. WHEHTER THE GOVERNMENT’S EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR WRONGFULLY PROVIDING A PERSON UNDER THE AGE OF TWENTY-ONE AN ALCOHOLIC BEVERAGE.
Appellate Defense Counsel should not have conceded that consent does not apply if the complaining witness was in an alcohol induced blackout. A blackout is pertinent to whether information is transferred to long term memory storage, not whether the individual can appraise the nature of the sexual conduct at the time of the act.
Strike my last comment – Appellate Defense Counsel recoverd during his rebuttal. Probably best to listen to the whole argument before posting.
I haven’t listened to the argument, but concessions have no practical effect on an appellate court anyway. A concession will be ignored if the court believes the law does not support the proposition conceded.
That said, even if a rape victim in blackout can not consent, she certainly can look like she’s consenting and establish a reasonable mistake of fact as to consent defense.
An alleged victim in a blackout state can absolutely consent to an act of consensual intercourse. Passed out = inability to consent.
While you are probably technically correct, I’m not sure I’d want to argue to a members panel that someone who was in a blackout state was consenting to a sexual act. Seems like the better argument is that they looked like they were consenting.
Well, you’d need an expert to educate the panel that someone in a blackout state can consent. I don’t think it’s a bridge too far if you have a decent expert and decent facts.