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Case 1:20-cr-00330-PAE Document692 Filed 11/22/21 Page12of17 The Court will therefore permit the Defense to cross-examine Alleged Victim 4 about her use of substances during and after the conduct in question. Indeed, the Court was already under the impression that the Defense intended to pursue this line of cross-examination after the Daubert hearing. Nov. 10 Tr. at 157 (“[D]o you intend to impeach any witnesses based on substance abuse? .. . Yes.”). But the extensive case law cited by the Defense about cross-examining witnesses on their substance use does not justify the request to admit Dr. Hall’s testimony on substance use and a For example, in United States v. Vitale, the district court gave the defense “wide latitude when cross-examining [the witness] about his drug use and rehabilitation, including questions about the effects that the drugs had on his ability to perceive events when they occurred as well as on his memory at the time of trial.” 459 F.3d at 196. The district court did not, however, permit the defense to admit the witness’s drug rehabilitation treatment records into evidence. /d. Citing Sasso, the Second Circuit affirmed, explaining that through cross- examination alone, “the jury was well aware of . . . [the witness’s] drug abuse and treatment history.” Jd. The Second Circuit has made such a distinction—permitting cross-examination on drug use but excluding a formal diagnosis of| | several cases. E.g., DiPaolo, 804 F.2d at 230; Dobson v. Walker, 150 F. App’x 49, 52 (2d Cir. 2005) (explaining that cross- examination about a witness’s drug use before witnessing a murder would be admissible, but the general fact that the witness uses drugs is not). The Defense does not cite any case law to the contrary. Even the nonbinding authority that the Defense refers to as “instructive,” Def. Br. at 13, held only that a defendant had the right to review a witness’s medical records and cross- examine the witness about his drug use, Robinson, 583 F.3d at 1271-75. 12 DOJ-OGR-00011150