Third Party Impeachment Disallowed Under FRE 609 Evidence of Conviction of Crime

Second Circuit bars the use of FRE 609 to cross-examine a coopering witness “about her father’s previous securities fraud convictions” since the rule is limited to impeachment by conviction of the testifying witness, in United States v. Gansman, _ F.3d _ (2d Cir. Sept. 9, 2011) (No. 10-0731-CR)

Generally, FRE 609 provides that a witness may be impeached by evidence of a prior conviction, where certain requirements are met. The Second Circuit was recently asked to consider whether this rule may be used to impeach a third party who does not testify at trial.

The case involved a prosecution for insider trading. At trial, evidence was presented that defendant Gansman obtained non-public information which he provided to co-defendant Murdoch, with whom he was having an affair, and who profited from trades based on this non-public information. Co-defendant Murdoch pled guilty and testified at trial as a cooperating witness. During her cross-examination, defense counsel asked “about her father’s previous securities fraud convictions” to show that she had “visited her father in jail and it was painful and awful and [going to jail is] something she’s willing to avoid at all costs.” Gansman, _ F.3d at _. The trial court asked defense counsel for supporting authority and none was provided. The trial court then disallowed the cross-examination. After the defendant was convicted by the jury, on appeal he challenged the exclusion of this evidence.

The Second Circuit found the effort to use FRE 609 to be “without merit.” The circuit noted that FRE 609 “does not provide for the introduction of a third party’s prior conviction as a proper subject of cross-examination, especially when that conviction creates a prejudicial inference that the witness is disposed to act in a certain way or is otherwise closely associated with criminality.” Gansman, _ F.3d at _.

The circuit also noted that the evidence was unnecessary “to argue that Murdoch had an incentive to lie in order to stay out of jail.” Gansman, _ F.3d at _. The circuit noted that it was unaware of any case addressing the same situation: “We remain unaware of any published cases — in our Circuit or in any other—providing that a third party’s prior conviction may be used to impeach a witness on cross-examination.” Gansman, _ F.3d at _ n.13.

For another case discussing the use of FRE 609 against a non-witness, consider: United States v. Lucas, 357 F.3d 599, 606 (6th Cir. 2004) (Where defendant wanted to introduce certified prior conviction of a third party who did not testify to suggest third party committed cocaine distribution, Rule 609 did not apply; “Rule 609 addresses only the ability of a party to impeach a witness through the introduction of prior convictions, specifically for the purpose of attacking credibility. Because Presley was not a witness (indeed, he has never been found nor his current existence established), Rule 609 is not applicable.”).

Federal Rules of Evidence