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Case 1:20-cr-00330-PAE Document692 Filed 11/22/21 Page11of17 Woods, 547 F. Supp. 2d 253, 266-67 (S.D.N.Y. 2008) (quoting United States v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990)). The Court therefore concludes that the minimal probative value of each of Dr. Hall’s diagnoses of Alleged Victim 4 is substantially outweighed by the risk of unfair prejudice. But this balancing of Rules 401 and 403 is based on the present record. It is conceivable that an additional proffer from the Defense that raises the probative value of a diagnosis, such as that mo 60ti<“i<i‘—sSOCOCSCS*@S would change the Court’s calculation. Cf George, 532 F.3d at 937 (“We do not foreclose the possibility that testimony by an expert . . . could have shown evidence of [the witness’s] condition to be relevant to her credibility .... But without such testimony, [defense] counsel had only words such as ‘episodes of rage’ and ‘racing thoughts.’”); Hamlett, 2021 WL 5105861, at *2 (affirming exclusion of a psychological witness that failed to show a “clear link between any particular mental health diagnosis and a witness’s credibility”). The Defense argues that apart from diagnoses of her mental health conditions, the Defense should be permitted to admit Dr. Hall’s conclusion as to Alleged Victim 4’s substance abusc i. Def. Br. at 12-13 (collecting cases). The Second Circuit instructs: It is, of course, within the proper scope of cross-examination to determine whether a witness was under the influence of drugs or narcotics or alcohol at the time of observation of events in dispute or at the time the witness is testifying. As Wigmore points out, however, a general habit of intemperance tells us nothing of the witness’s testimonial incapacity unless it involves actual intoxication at the time of the event observed or at the time of testifying. United States v. DiPaolo, 804 F.2d 225, 229-30 (2d Cir. 1986) (cleaned up) (cited in Gov’t Br. at 11 and Def. Br. at 12); accord United States v. Robinson, 583 F.3d 1265, 1272 (10th Cir. 2009) (“Illegal drug use does not merely bear on the [confidential informant’s] veracity but also on his capacity as a witness.”). 11 DOJ-OGR-00011149