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31. Is the testimony of the police officer about the prior drug transaction admissible to impeach the defendant?
A defendant was charged with possession of marijuana with intent to distribute. On direct examination, the defendant testified that he worked with disadvantaged children as a drug counselor, that he hated drugs, that he would «never possess or distribute drugs,» and that he had never used drugs and would not touch them. The government offered as a rebuttal witness a police officer who would testify that, three years earlier, he saw the defendant buy cocaine from a street dealer. The defendant objected.
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As it relates to character, impeachment by contradiction is not banned under Federal Rule of Evidence (FRE) 404 because it constitutes using character evidence for «another purpose.» Fed. R. Evid. 404(b).
When impeachment by contradiction is attempted, the most important rule to consider is the «collateral issue» rule, which bans extrinsic evidence on collateral issues. The collateral issue rule will not ban such evidence, however, when the issue is material or important to the outcome of the case.
C is correct. Testimony by the police officer regarding the prior drug transaction is admissible to impeach the defendant based on a contradiction because it is in direct conflict with the defendant's testimony «that he would 'never possess or distribute drugs,' and that he had never used drugs and would not touch them.» As such, this is a proper use of evidence for «another purpose» under FRE 404(b) governing character evidence.
A is incorrect. The evidence of purchasing cocaine is not being offered to impeach the defendant's character for truthfulness. Rather, it is being offered to contradict his testimony on direct examination that he would never possess drugs, as stated above.
B is incorrect. On the contrary, the evidence of a prior cocaine purchase is not collateral, because the defendant is charged with drug possession and the evidence directly contradicts the defendant's testimony on direct that he would never possess drugs. The offered testimony is admissible for that purpose under FRE 404(b).
D is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the testimony about the prior drug transaction is admissible, it is not because it is a bad act that supports a finding of untruthfulness. This evidence is not being offered under FRE 608(b) to show a prior bad act bearing on the defendant's truthfulness. If it were being offered for that purpose, it would be inadmissible because FRE 608(b) prohibits extrinsic evidence of prior acts for that purpose and only allows questioning about them on cross-examination. Instead, this is an example of impeachment by contradiction, as explained above.