Admissibility of Drug or Alcohol Use to Impeach a Witness at Trial
This article discusses the admissibility of drug or alcohol use to impeach a witness at trial. As a general matter, under Florida law, “[a]ll relevant evidence is admissible ….” Fla. Stat. § 90.402. “Relevant evidence is evidence tending to prove or disprove a material fact.” Fla. Stat. § 90.401. However, under certain circumstances, “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Fla. Stat. § 90.403.
Introducing evidence that a witness has a drug or alcohol problem at trial presents thorny issues. We want juries to decide cases based on the testimony and evidence presented. “Cross-examination is the main way that a litigant tests the believability of a witness and the truth of her testimony.” Felton v. State, 949 So. 2d 342, 344 (Fla. 4th DCA 2007). On the one hand, clearly drug or alcohol use can affect a person’s ability to see, understand, and remember events. See Fla. Stat. § 90.608(4) (any party may attack the credibility of a witness by “[s]howing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified”).
On the other hand, evidence of drug or alcohol use has the potential to bias jurors such that they decide the case without considering all of the testimony and evidence presented. Thus, there are three possibilities with such evidence: (1) it is not relevant to any material issue in the case and is inadmissible; (2) it is relevant to a material issue in the case but is inadmissible because it would prejudice the jury; or (3) it is relevant to a material issue in the case and is admissible despite the danger of prejudice. Each possibility is examined in turn below.
The first possibility is that evidence of the drug or alcohol use is intended solely to attack the witness’s character without any connection to the case. The gist being, the witness is a bad person who should not be believed because of the past drug or alcohol use. In those instances, such evidence would not be relevant and thus would be inadmissible. See Fla. Stat. § 90.405(2)(a) (“Similar fact evidence of other … wrongs, or acts is admissible when relevant to prove a material fact in issue … but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”).
In such cases, the trial court would commit reversible error by allowing the drug or alcohol use into evidence. See Williams v. Lowe’s Home Ctrs., Inc., 973 So. 2d 1180, 1186 (Fla. 5th DCA 2008) (questioning plaintiff about a cocaine habit that he suffered from 14 years prior to the trial “amounted to little more than an improper attack on [his] character.”); Sterling Casino Lines, L.P. v. Plowman-Render, 902 So. 2d 938, 941 (Fla. 5th DCA 2005) (“Questions … concerning [plaintiff’s] alcohol-induced coma … were irrelevant to the issues at trial and served simply to portray [plaintiff] in an unfavorable light.”); Edwards v. Orkin Exterminating Co., 718 So. 2d 881, 883 (Fla. 3d DCA 1998) (“The only purpose of this evidence [questions insinuating the plaintiff’s history of alcohol and drug use] was to prejudice the jury … as it had no probative value.”); Nichols v. Benton, 718 So. 2d 925, 928 (Fla. 1st DCA 1998) (“Since no evidence was introduced which might show a connection between appellant’s alcohol and marijuana use and the alleged brain damage for which damages were sought … [admitting the evidence was improper].”).
The second possibility is that evidence of drug or alcohol use is relevant to a material issue in the case but is still inadmissible. As noted above, a party might argue that drug or alcohol use, at or near a certain event, affected the witness’s memory of that event. See Fla. Stat. § 90.608(4). However, the evidence could still be inadmissible if the trial court determines that its relevancy is substantially outweighed by the danger it would prejudice the jury. See Fla. Stat. § 90.403; Shaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005) (quotation omitted) (“Even if we assume that the evidence regarding [plaintiff’s] marijuana use had some marginal relevance … the outcome remains the same. [A]ny marginal probative value it might have had was clearly outweighed ‘by the danger of unfair prejudice, confusion of issues [and] misleading the jury.’”); Mount v. Camelot Care Ctr. of Dade, Inc., 816 So. 2d 669, 670 (Fla. 3d DCA 2002) (“When weighing the probative value of the evidence regarding [the decedent’s] past drug and alcohol problem with the unfair prejudice, the probative value is substantially outweighed by the danger of unfair prejudice.”); Clausell v. Buckney, 475 So. 2d 1023, 1024 (Fla. 1st DCA 1985) (evidence of plaintiff’s use of controlled substance was inadmissible “in the absence of additional proof that such habits had relevancy upon plaintiff’s condition at the time of the accident.”).
The third possibility is that evidence of drug or alcohol use is relevant to a material issue in the case and is admissible. As already noted, “[a] witness’s drug use at the time of the crime may impact her ‘capacity or ability’ to observe the events in question.” Felton, 949 So. 2d at 344. However, the evidence would only be admissible if the trial court determines that its relevancy is not substantially outweighed by the danger it would prejudice the jury. See Fla. Stat. § 90.403.
The Florida Supreme Court has established the following test to guide trial courts and litigants on these points. “The introduction of evidence of drug use for the purpose of impeachment [sh]ould be excluded unless: (a) it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony; (b) it can be shown that the witness is using drugs at or about the time of the testimony itself; or (c) it is expressly shown by other relevant evidence that the prior drug use affects the witness’s ability to observe, remember, and recount.” Trease v. State, 768 So. 2d 1050, 1054 (Fla. 2000) (quoting Edwards v. State, 548 So. 2d 656, 658 (Fla. 1989)).