Alcohol‐Induced Blackout as a Criminal Defense or Mitigating Factor: An Evidence‐Based Review and Admissibility as Scientific Evidence

Abstract

Alcohol-related amnesia--alcohol blackout--is a common claim of criminal defendants. The generally held belief is that during an alcohol blackout, other cognitive functioning is severely impaired or absent. The presentation of alcohol blackout as scientific evidence in court requires that the science meets legal reliability standards (Frye, FRE702/Daubert). To determine whether "alcohol blackout" meets these standards, an evidence-based analysis of published scientific studies was conducted. A total of 26 empirical studies were identified including nine in which an alcohol blackout was induced and directly observed. No objective or scientific method to verify the presence of an alcoholic blackout while it is occurring or to confirm its presence retrospectively was identified. Only short-term memory is impaired and other cognitive functions--planning, attention, and social skills--are not impaired. Alcoholic blackouts would not appear to meet standards for scientific evidence and should not be admissible.

Alcohol-Induced Blackouts: A Review of Recent Clinical Research with Practical Implications and Recommendations for Future Studies

“…From a review of 26 empirical studies, Pressman and Caudill () concluded that only short‐term memory is impaired during a blackout and that other cognitive functions, such as planning, attention, and social skills, were not affected. Because cognitive functions other than memory are not necessarily impaired during a blackout (Pressman and Caudill, ), a critical question is whether people are responsible for their behavior while in a blackout. This is often a key factor in alcohol‐related crimes, when the perpetrator or victim claims to have no memory for their actions (van Oorsouw et al., ).…”

“…It is important to note that short‐term memory remains intact during an alcohol‐induced blackout, and as such, an intoxicated person is able to engage in a variety of behaviors, including having detailed conversations and other more complex behaviors like driving a vehicle, but information about these behaviors is not transferred from short‐term to long‐term memory, which leads to memory deficits and memory loss for these events (White, ). There is no objective evidence that a person is in an alcohol‐induced blackout (Pressman and Caudill, ), and thus, it can be difficult or impossible to know whether a drinker is experiencing a blackout (Goodwin, ). This is similar to the fact that one cannot know whether another person has a headache; the experience is happening inside that person's brain, with no clear observable indices.…”

Latent Trajectory Classes for Alcohol‐Related Blackouts from Age 15 to 19 in ALSPAC

“…Individuals with prior ARBs are more likely to demonstrate similar phenomena when administered alcohol in a laboratory (i.e., might have a predisposition toward experiencing memory lapses with alcohol), and ARBs are more common in individuals with alcoholic relatives, with estimated heritabilities of~50% (Goodwin, 1971;Nelson et al, 2004;Pressman and Caudill, 2013). The genetic component of ARBs may operate through several intermediate characteristics including the genetically influenced phenotype of a low level of response (low LR) to alcohol (Schuckit, 2014;Schuckit et al, 2008Schuckit et al, , 2011, which is associated with higher drinking quantities per occasion.…”

An Essay on Sleep-Related Sexual Behaviours and Offences Related to Sexual Behaviours

“…[37,41] with a particular focus on sleep recording correlates [42] and alcohol [24,38]. He has also questioned whether in cases that involve alcohol, whether the amnesia associated with the alleged event is caused by the putative parasomnia or is merely the result of an alcohol blackout [43] and whether the apparent association is a result of a methodological bias in the way the data has been collected (i.e. if a sleepwalker says they walk more often but are amnesic then how do they know, and how reliable is a third-party's information on the association) [24].…”