United States v. Drake
932 F.2d 861 (1991)

  • Drake was arrested and charged with fraud.
    • He was accused of trying to get a bank loan while concealing the fact that the collateral he was offering was partially owned by the Payne Company.
  • At trial, Drake claimed that he had no formal education in business management, and that he had a degree in psychology.  The prosecution repeatedly attempted to impeach him on this point, asking again and again if he really had a degree in psychology.
    • Drake moved for a mistrial on the grounds that the questioning about Drake’s degree had no probative value and only served to ‘inflame the jury’.
  • The Trial Judge declined to grant a mistrial.  The prosecution presented evidence to show that Drake had never obtained a degree.
  • The Trial Court convicted Drake of fraud.  He appealed.
  • The Appellate Court affirmed.
    • Drake argued that the line of questioning was improper because it was unfairly prejudicial and irrelevant.  However, the Appellate Court found that, under FRE 611(b), if Drake originally brought up the fact he had a degree, his background was open to cross-examination and possible impeachment.
    • Drake argued that the questions themselves constituted the introduction of extrinsic evidence of specific instances of conduct, which is forbidden in FRE 608(b).  However the Appellate Court found that questions alone cannot constitute extrinsic evidence.
      • The questions the prosecutor asked referred to school records that were not admitted into evidence.  The Court found that was arguably improper because the questions assumed facts that were not in evidence.  However, they felt that this was a harmless error.