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Case 1:20-cr-00330-PAE Document508- Filed 11/24/21 Page16 of 25 2, “A witness’s credibility may always be attacked by showing that his or her capacity to observe, remember, or narrate is impaired. Consequently, the witness’s capacity at the time of the event, as well as at the time of trial, is significant.” 4 Jack B. Weinstein & Margaret A. Berger, Weinstein ’s Federal Evidence, § 607.05[1] (Joseph M. McLaughlin ed., 2d ed. 2009). As the Second Circuit recognized in United States v. DiPaolo, “[iJt 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.” United States v. DiPaolo, 804 F.2d 225, 229 (2d Cir. 1986); accord Wilson v. United States, 232 U.S. 563, 568 (1914) (morphine addiction at time of trial has “material bearing upon [a person’s] reliability as a witness”); United States v. Robinson, 583 F.3d 1265, 1271-72 (10th Cir. 2009) (use of illegal drugs at time of alleged crime and at time of trial relevant to credibility and capacity as a witness); United States v. Jones, 213 F.3d 1253, 1261 (10th Cir. 2000) (use of prescription drugs relevant because drug use affects “memory, perception, or comprehension”); United States v. Sampol, 636 F.2d 621, 666 (D.C. Cir. 1980) (“We have recognized that it is proper to explore the drug addiction of a witness in order to attack his credibility and capacity to observe the events in question.”); United States v. Banks, 520 F.2d 627, 631 (7th Cir. 1975) (a judge may not forbid “inquiry into an issue such as the narcotics use during trial of an important eye-witness and central participant in the transaction at issue. Once a proper foundation has been established, through, for example, a showing of reasonably contemporaneous drug use, the issue is open for inquiry. The jury may not properly be deprived of this relevant evidence of possible inability to recollect and relate.”); United States v. Pickard, 211 F. Supp. 2d 1287, 1292-93 (D. Kan. 2002) (“[A] witness’ prior drug use may be admitted to show the effect of the drug use on the witness’ memory or recollection of events.”). {2 DOJ-OGR-00008101