## Facts

- After a rap concert at Fort Belvoir, Virginia ended following a fight, a black male wearing an orange shirt or jacket fired a 9mm pistol twice at trucks leaving the parking lot.
- Military police stopped a van leaving the area carrying Nigel D. Ince, Angela Neumann, and two friends.
- Two motorists whose vehicles were also stopped identified Ince as the shooter, noting he was no longer wearing orange.
- Military Policeman Roger D. Stevens obtained a signed but unsworn statement from Neumann stating that Ince admitted firing the shots and no longer had the gun.
- Ince was charged under 18 U.S.C. § 113(c) with assault with a dangerous weapon, with intent to do bodily harm.

## Issues

1. Whether the prosecution may impeach its own witness with a prior inconsistent statement when the apparent purpose is to place otherwise inadmissible hearsay (an alleged confession) before the jury.
2. Whether such impeachment evidence, even if permissible under Federal Rule of Evidence 607, must be excluded under Federal Rule of Evidence 403 due to minimal impeachment value and substantial risk of unfair prejudice.
3. Whether admitting the impeachment testimony was harmless error given the overall strength of the government’s case.

## Decision

- The Fourth Circuit reversed the conviction and remanded for a new trial.
- The court held the district court erred by permitting the government to introduce, through Stevens, Neumann’s prior out-of-court account of Ince’s alleged confession as “impeachment.”
- The court concluded the government’s use of impeachment functioned as an attempt to circumvent the hearsay rule and expose the jury to otherwise inadmissible evidence.
- The court also held the evidence should have been excluded under Rule 403 because its prejudicial effect substantially outweighed any legitimate impeachment value.
- The error was not harmless in a close case where identity was contested, the first trial resulted in a hung jury, and the alleged confession was likely to influence the verdict.

## Legal Principles

- Federal Rule of Evidence 607 permits a party to impeach its own witness, but impeachment may not be used as a device to present inadmissible hearsay to the jury.
- When a witness claims lack of memory rather than providing affirmative contradictory testimony, prior-statement “impeachment” may have limited probative value as impeachment.
- Under Federal Rule of Evidence 403, impeachment evidence that carries a high risk the jury will treat it as substantive proof—especially an alleged confession—must be excluded when its unfair prejudice substantially outweighs its impeachment value.
- Limiting instructions may be insufficient where the content is highly inflammatory and directly addresses the central disputed fact, increasing the likelihood of substantive misuse.
- In assessing harmless error, courts consider the closeness of the case and whether the improperly admitted evidence likely affected the verdict.

## Conclusion

The court ordered a new trial because the government’s introduction of a witness’s prior statement recounting the defendant’s alleged confession, presented through another witness as “impeachment,” was an improper end-run around hearsay limits and should have been excluded under Rule 403 due to severe prejudice in a close identification case.


United States v. Ince, 21 F.3d 576 (4th Cir. 1994)