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
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.