Impeachment by contradiction with prior crimes evidence subject to FRE 402, 403 & 607, not 404(b) and 609.

On January 20, 2009, the Third Circuit decided United States v. Gilmore, Case No. 07-3139. It held that a party may permissibly introduce prior crimes evidence, subject to Rules 402, 403 and 607 of the Federal Rules of Evidence, and with a proper limiting instruction, to impeach by contradiction a witness’s testimony regarding a specific fact. See Gilmore, slip op. at 10-11. The Court further held that such impeaching evidence does not fall within the ambit of Rules 404(b) and 609. See id., slip op. at 9, 12.

Gilmore involved a prosecution for conspiracy to distribute and to possess with intent to distribute 500g or more of cocaine. See Gilmore, slip op. at 3. Mr. Gilmore testified in his own defense, and during direct examination, stated “No, I didn’t sell no drugs. I never did.” Id., slip op. at 5 (emphasis by the Court). The government, with the district court’s permission, cross-examined Mr. Gilmore about his two prior convictions for drug distribution, both of which occurred in 1992. See id., slip op. at 6. The district court gave a limiting instruction to the jury after the impeachment and at the final charge. Id., slip op. at 7. As noted above, the Third Circuit affirmed.

Rule 404(b)’s bar on other crimes, wrongs, or acts evidence does not apply, it held, because impeachment by contradiction is not solely “evidence . . . to show action in conformity therewith.” See id., slip op. at 9. Similarly, Rule 609’s rules concerning impeachment of credibility generally with prior convictions do not apply because “impeachment by contradiction concerns the use of evidence to impeach a witness’ specific testimony,” not the “witness’ general character for truthfulness.” Id., slip op. at 12. As Rule 609(b) suggests, however, “a prior conviction’s age may affect its probative value” and “its potential for unfair prejudice.” Id., slip op. at 13. The Third Circuit consequently stated that “a district judge faced with the proffer of past criminal conduct to impeach a witness’ testimony by contradiction my properly consider the age of that conviction using standard Rule 403 analysis, though without resort to Rule 609.” Id.