OCTOBER TERM, 1999
Syllabus
OHLER
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 98-9828. Argued March 20, 2000-Decided May 22, 2000
Petitioner Ohler was tried on drug charges. The Federal District
Court granted the Government's motion
in limine to admit her
prior felony drug conviction as impeachment evidence under Federal
Rule of Evidence 609(a)(1). Ohler testified at trial and admitted
the prior conviction on direct examination. The jury convicted her.
In affirming, the Ninth Circuit rejected her challenge to the
District Court's
in limine ruling, holding that she waived
her objection by introducing the evidence during her direct
examination.
Held: A defendant who pre-emptively introduces evidence
of a prior conviction on direct examination may not challenge the
admission of such evidence on appeal. Ohler attempts to avoid the
well-established commonsense principle that a party introducing
evidence cannot complain on appeal that the evidence was
erroneously admitted by invoking Federal Rules of Evidence 103 and
609. However, neither Rule addresses the question at issue here.
She also argues that applying such a waiver rule in this situation
would compel a defendant to forgo the tactical advantage
ofpre-emptively introducing the conviction in order to appeal the
in limine ruling. But both the Government and the defendant
in a criminal trial must make choices as the trial progresses.
Ohler's submission would deny to the Government its usual right to
choose, after she testifies, whether or not to use her prior
conviction against her. She seeks to short-circuit that decisional
process by offering the conviction herself (and thereby removing
the sting) and still preserve its admission as a claim of error on
appeal. But here she runs into the position taken by the Court in
Luce v.
United States, 469 U. S. 38, 41, that any
possible harm flowing from a district court's
in limine
ruling permitting impeachment by a prior conviction is wholly
speculative. Only when the Government exercises its option to
elicit the testimony is an appellate court confronted with a case
where, under normal trial rules, the defendant can claim the denial
of a substantial right if in fact the district court's
in
limine ruling proved to be erroneous. Finally, applying this
rule to Ohler's situation does not unconstitutionally burden her
right to testify, because the rule does not prevent her from taking
the stand and presenting any admissible testimony she chooses. Pp.
755-760.
169 F.3d
1200, affirmed.
754
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. SOUTER, J.,
filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER,
JJ., joined,
post, p. 760.
Benjamin L. Coleman, by appointment of the Court, 528 U.
S. 984, argued the cause for petitioner. With him on the briefs was
Mario G.
Conte.
Barbara McDowell argued the cause for the United States. With
her on the brief were Solicitor General Waxman, Assistant Attorney
General Robinson, Deputy Solicitor General Dreeben, and Jonathan L.
Marcus.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner, Maria Ohler, was arrested and charged with
importation of marijuana and possession of marijuana with the
intent to distribute. The District Court granted the Government's
motion
in limine seeking to admit evidence of her prior
felony conviction as impeachment evidence under Federal Rule of
Evidence 609(a)(1). Ohler testified at trial and admitted on direct
examination that she had been convicted of possession of
methamphetamine in 1993. The jury convicted her of both counts, and
the Court of Appeals for the Ninth Circuit affirmed. We agree with
the Court of Appeals that Ohler may not challenge the
in
limine ruling of the District Court on appeal.
Maria Ohler drove a van from Mexico to California in July 1997.
As she passed through the San Ysidro Port of Entry, a customs
inspector noticed that someone had tampered with one of the van's
interior panels. Inspectors searched the van and discovered
approximately 81 pounds of marijuana. Ohler was arrested and
charged with importation of marijuana and possession of marijuana
with the intent to
*Jody Manier Kris and
Lisa Kemler filed a brief
for the National Association of Criminal Defense Lawyers et al. as
amici curiae urging reversal.
755
distribute. Before trial, the Government filed motions
in
limine seeking to admit Ohler's prior felony conviction as
character evidence under Federal Rule of Evidence 404(b) and as
impeachment evidence under Rule 609(a)(1). The District Court
denied the motion to admit the conviction as character evidence,
but reserved ruling on whether the conviction could be used for
impeachment purposes. On the first day of trial, the District Court
ruled that if Ohler testified, evidence of her prior conviction
would be admissible under Rule 609(a)(1). App. 97-98. She testified
in her own defense, denying any knowledge of the marijuana. She
also admitted on direct examination that she had been convicted of
possession of methamphetamine in 1993. The jury found Ohler guilty
of both counts, and she was sentenced to 30 months in prison and 3
years' supervised release.
Id., at 140-141.
On appeal, Ohler challenged the District Court's
in
limine ruling allowing the Government to use her prior
conviction for impeachment purposes. The Court of Appeals for the
Ninth Circuit affirmed, holding that Ohler waived her objection by
introducing evidence of the conviction during her direct
examination.
169 F.3d
1200 (1999). We granted certiorari to resolve a conflict among
the Circuits regarding whether appellate review of an
in
limine ruling is available in this situation. 528 U. S. 950
(1999). See
United States v.
Fisher, 106 F.3d
622 (CA5 1997) (allowing review);
United States
v.
Smiley, 997 F.2d
475 (CA8 1993) (holding objection waived). We
affirm.
Generally, a party introducing evidence cannot complain on
appeal that the evidence was erroneously admitted. See 1 J.
Weinstein & M. Berger, Weinstein's Federal Evidence § 103.14,
p. 103-30 (2d ed. 2000). Cf. 1 J. Strong, McCormick on Evidence §
55, p. 246 (5th ed. 1999) ("If a party who has objected to evidence
of a certain fact himself produces evidence from his own witness of
the same fact, he has waived his objection"). Ohler seeks to avoid
the consequences of
756
this well-established commonsense principle by invoking Rules
103 and 609 of the Federal Rules of Evidence. But neither of these
Rules addresses the question at issue here. Rule 103 sets forth the
unremarkable propositions that a party must make a timely objection
to a ruling admitting evidence and that a party cannot challenge an
evidentiary ruling unless it affects a substantial righU The Rule
does not purport to determine when a party waives a prior
objection, and it is silent with respect to the effect of
introducing evidence on direct examination, and later assigning its
admission as error on appeal.
Rule 609(a) is equally unavailing for Ohler; it merely
identifies the situations in which a witness' prior conviction may
be admitted for impeachment purposes.2 The Rule originally provided
that admissible prior conviction evidence could be elicited from
the defendant or established by public record during
cross-examination, but it was amended in 1990 to clarify that the
evidence could also be introduced on direct examination. According
to Ohler, it follows from this amendment that a party does not
waive her objection to the
in limine ruling by introducing
the evidence herself. However, like Rule 103, Rule 609(a) simply
does not address this issue. There is no question that the Rule
authorizes
1 Federal Rule of Evidence 103(a): "Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and
"(1) ... In case the ruling is one admitting evidence, a timely
objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not
apparent from the context .... "
2 Rule 609(a): "For the purpose of attacking the credibility of
a witness, (1) evidence that a witness other than an accused has
been convicted of a crime shall be admitted, subject to Rule 403,
if the crime was punishable by death or imprisonment in excess of
one year under the law under which the witness was convicted, and
evidence that an accused has been convicted of such a crime shall
be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the
accused .... "
757
the eliciting of a prior conviction on direct examination, but
it does no more than that.
Next, Ohler argues that it would be unfair to apply such a
waiver rule in this situation because it compels a defendant to
forgo the tactical advantage of pre-emptively introducing the
conviction in order to appeal the
in limine ruling. She
argues that if a defendant is forced to wait for evidence of the
conviction to be introduced on cross-examination, the jury will
believe that the defendant is less credible because she was trying
to conceal the conviction. The Government disputes that the
defendant is unduly disadvantaged by waiting for the prosecution to
introduce the conviction on crossexamination. First, the Government
argues that it is debatable whether jurors actually perceive a
defendant to be more credible if she introduces a conviction
herself. Brief for United States 28. Second, even if jurors do
consider the defendant more credible, the Government suggests that
it is an unwarranted advantage because the jury does not realize
that the defendant disclosed the conviction only after failing to
persuade the court to exclude it.
Ibid.
Whatever the merits of these contentions, they tend to obscure
the fact that both the Government and the defendant in a criminal
trial must make choices as the trial progresses. For example, the
defendant must decide whether or not to take the stand in her own
behalf. If she has an innocent or mitigating explanation for
evidence that might otherwise incriminate, acquittal may be more
likely if she takes the stand. Here, for example, Ohler testified
that she had no knowledge of the marijuana discovered in the van,
that the van had been taken to Mexico without her permission, and
that she had gone there simply to retrieve the van. But once the
defendant testifies, she is subject to crossexamination, including
impeachment by prior convictions, and the decision to take the
stand may prove damaging instead of helpful. A defendant has a
further choice to make if she decides to testify, notwithstanding a
prior conviction.
758
The defendant must choose whether to introduce the conviction on
direct examination and remove the sting or to take her chances with
the prosecutor's possible elicitation of the conviction on
cross-examination.
The Government, too, in a case such as this, must make a choice.
If the defendant testifies, it must choose whether or not to
impeach her by use of her prior conviction. Here the trial judge
had indicated he would allow its use,3 but the Government still had
to consider whether its use might be deemed reversible error on
appeal. This choice is often based on the Government's appraisal of
the apparent effect of the defendant's testimony. If she has
offered a plausible, innocent explanation of the evidence against
her, it will be inclined to use the prior conviction; if not, it
may decide not to risk possible reversal on appeal from its
use.
Due to the structure of trial, the Government has one inherent
advantage in these competing trial strategies. Cross-examination
comes after direct examination, and therefore the Government need
not make its choice until the defendant has elected whether or not
to take the stand in her own behalf and after the Government has
heard the defendant testify.
Ohler's submission would deny to the Government its usual right
to decide, after she testifies, whether or not to use her prior
conviction against her. She seeks to short circuit that decisional
process by offering the conviction herself (and thereby removing
the sting) and still preserve its admission as a claim of error on
appeal.
3 The District Court ruled on the first day of trial that
Ohler's prior conviction would be admissible for impeachment
purposes, and the court likely would have abided by that ruling at
trial. However,
in limine rulings are not binding on the
trial judge, and the judge may always change his mind during the
course of a trial. See
Luce v.
United States,
469 U. S. 38,41-42
(1984). Ohler's position, therefore, would deprive the trial court
of the opportunity to change its mind after hearing all of the
defendant's testimony.
759
But here Ohler runs into the position taken by the Court in a
similar, but not identical, situation in
Luce v.
United
States, 469 U. S.
38 (1984), that "[a]ny possible harm flowing from a district
court's
in limine ruling permitting impeachment by a prior
conviction is wholly speculative."
Id., at 41. Only when the
Government exercises its option to elicit the testimony is an
appellate court confronted with a case where, under the normal
rules of trial, the defendant can claim the denial of a substantial
right if in fact the district court's
in limine ruling
proved to be erroneous. In our view, there is nothing "unfair," as
Ohler puts it, about putting her to her choice in accordance with
the normal rules of trial.
Finally, Ohler argues that applying this rule to her situation
unconstitutionally burdens her right to testify. She relies on
Rock v.
Arkansas, 483 U. S. 44 (1987), where
we held that a prohibition of hypnotically refreshed testimony
interfered with the defendant's right to testify. But here the rule
in question does not prevent Ohler from taking the stand and
presenting any admissible testimony which she chooses. She is of
course subject to cross-examination and subject to impeachment by
the use of a prior conviction. In a sense, the use of these tactics
by the Government may deter a defendant from taking the stand. But,
as we said in
McGautha v.
California, 402 U. S. 183,215
(1971):
"It has long been held that a defendant who takes the stand in
his own behalf cannot then claim the privilege against
cross-examination on matters reasonably related to the subject
matter of his direct examination .... It is not thought overly
harsh in such situations to require that the determination whether
to waive the privilege take into account the matters which may be
brought out on cross-examination. It is also generally recognized
that a defendant who takes the stand in his own behalf may be
impeached by proof of prior convictions or the like .... Again, it
is not thought inconsistent with the enlightened administration of
criminal justice to require
760
the defendant to weigh such pros and cons in deciding whether to
testify."
For these reasons, we conclude that a defendant who preemptively
introduces evidence of a prior conviction on direct examination may
not on appeal claim that the admission of such evidence was
error.
The judgment of the Court of Appeals for the Ninth Circuit is
therefore affirmed.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
The majority holds that a testifying defendant perforce waives
the right to appeal an adverse
in limine ruling admitting
prior convictions for impeachment. The holding is without support
in precedent, the rules of evidence, or the reasonable objectives
of trial, and I respectfully dissent.
The only case of this Court that the majority claims as even
tangential support for its waiver rule is
Luce v.
United
States, 469 U. S.
38 (1984).
Ante, at 759. We held there that a criminal
defendant who remained off the stand could not appeal an
in
limine ruling to admit prior convictions as impeachment
evidence under Federal Rule of Evidence 609(a). Since the defendant
had not testified, he had never suffered the impeachment, and the
question was whether he should be allowed to appeal the
in
limine ruling anyway, on the rationale that the threatened
impeachment had discouraged the exercise of his right to defend by
his own testimony. The answer turned on the practical realities of
appellate review.
An appellate court can neither determine why a defendant refused
to testify, nor compare the actual trial with the one that would
have occurred if the accused had taken the stand. With unavoidable
uncertainty about whether and how much the
in limine ruling
harmed the defendant, and whether it affected the trial at all, a
rule allowing a silent defend-
761
ant to appeal would require courts either to attempt wholly
speculative harmless-error analysis, or to grant new trials to some
defendants who were not harmed by the ruling, and to some who never
even intended to testify. In requiring testimony and actual
impeachment before a defendant could appeal an
in limine
ruling to admit prior convictions, therefore,
Luce did not
derive a waiver rule from some general notion of fairness; it
merely acknowledged the incapacity of an appellate court to assess
the significance of the ruling for a defendant who remains
silent.
This case is different, there being a factual record on which
Ohler's claim can be reviewed. She testified, and there is no
question that the
in limine ruling controlled her counsel's
decision to enquire about the earlier conviction; defense lawyers
do not set out to impeach their own witnesses, much less their
clients. Since analysis for harmless error is made no more
difficult by the fact that the convictions came out on direct
examination, not cross-examination, the case raises none of the
practical difficulties on which
Luce turned, and
Luce
does not dictate to day's result.1
In fact, the majority's principal reliance is not on precedent
but on the "commonsense" rule that "a party introducing evidence
cannot complain on appeal that the evi-
1 The
Luce Court anticipated as much: "It is clear, of
course, that had petitioner testified and been impeached by
evidence of a prior conviction, the District Court's decision to
admit the impeachment evidence would have been reviewable on appeal
along with any other claims of error. The Court of Appeals would
then have had a complete record detailing the nature of
petitioner's testimony, the scope of the crossexamination, and the
possible impact of the impeachment on the jury's verdict." 469 U.
S., at 41. There are, of course, practical issues that may arise in
these cases; for example, the trial court may feel unable to render
a final and definitive
in limine ruling. The majority does
not focus on these potential difficulties, and neither do I, though
some lower courts have addressed them. See,
e. g.,
Wilson v.
Williams, 182 F.3d
562 (CA7 1999) (en banc). For the purposes of this case,
we need consider only the circumstance in which a district court
makes a ruling that is plainly final.
762
dence was erroneously admitted."
Ante, at 755. But this
is no more support for today's holding than
Luce is, for the
common sense that approves the rule also limits its reach to a
point well short of this case. The general rule makes sense, first,
when a party who has freely chosen to introduce evidence of a
particular fact later sees his opponent's evidence of the same fact
erroneously admitted. He suffers no prejudice. See
Mercer v.
Theriot, 377
U. S. 152, 154 (1964)
(per curiam); 21 C. Wright &
K. Graham, Federal Practice and Procedure § 5039, p. 203 (1977).
The rule makes sense, second, when the objecting party takes
inconsistent positions, first requesting admission and then
assigning error to the admission of precisely the same evidence at
his opponent's behest. "The party should not be permitted 'to blow
hot and cold' in this way." 1 J. Strong, McCormick on Evidence §
55, p. 246, n. 14 (5th ed. 1999).
Neither of these reasons applies when (as here) the defendant
has opposed admission of the evidence and introduced it herself
only to mitigate its effect in the hands of her adversary. Such a
case falls beyond the scope of the general principle, and the
scholarship almost uniformly treats it as exceptional. See,
e. g., 1 J. Wigmore, Evidence § 18, p. 836 (P.
Tillers rev. 1983) ("[A] party who has made an unsuccessful motion
in limine to exclude evidence that he expects the proponent to
offer may be able to first offer that same evidence without waiving
his claim of error"); M. Graham, Handbook of Federal Evidence §
103.4, p. 17 (1981) ("However, the party may ... himself bring out
evidence ruled admissible over his objection to minimize its effect
without it constituting a waiver of his objection"); 1 McCormick,
supra, § 55, at 246 ("[W]hen [a party's] objection is made
and overruled, he is entitled to treat this ruling as the 'law of
the trial' and to explain or rebut, if he can, the evidence
admitted over his protest"); D. Louisell & C. Mueller, Federal
Evidence § 11, p. 65 (1977) ("Having done his best by objecting,
the adversary would be indeed ill treated if then
763
he was held to have thrown it all away by doing his best to
protect his position by offering evidence of his own").2 The
general thrust of the law of evidence, then, not only fails to
support the majority's approach, but points rather clearly in the
other direction.
With neither precedent nor principle to support its chosen rule,
the majority is reduced to saying that "there is nothing 'unfair'
... about putting petitioner to her choice in accordance with the
normal rules of trial." 3
Ante, at 759. Things are not this
simple, however.
Any claim of a new rule's fairness under normal trial conditions
will have to stand or fall on how well the rule would serve the
objects that trials in general, and the Rules of Evidence in
particular, are designed to achieve. Thus the provisions of Federal
Rule of Evidence 102, that "[t]hese rules shall be construed to
secure fairness in administration, elimination of unjustifiable
expense and delay, and promotion of growth and development of the
law of evidence to the end that the truth may be ascertained and
proceedings justly determined." A judge's job, accordingly, is to
curb the tactics of the trial battle in favor of weighing evidence
calmly and getting to the most sensible understanding of whatever
gave rise to the controversy before the court. The question is not
which side gains a tactical advantage, but which rule assists in
uncovering the truth. Today's new rule can make no such claim.
2 The point on which the analysis of the cited treatises turns,
it should be clear, is not which party first introduces the
evidence, but rather which party seeks introduction and which
exclusion. A defense lawyer who elicits testimony about prior
convictions on direct examination, having failed in an attempt to
have them excluded, is plainly making a defensive use of the
convictions; he has no desire to impeach his client. The fact that
it is the defense lawyer who first introduces the convictions,
then, is irrelevant to the principle the majority invokes.
3 For the reasons just given, this begs the question, which is
whether the "normal rules of trial" apply beyond the normal
circumstances for which they were devised.
764
Previously convicted witnesses may testify honestly, but some
convictions raise more than the ordinary question about the
witness's readiness to speak truthfully. A factfinder who
appreciates a heightened possibility of perjury will respond with
heightened scrutiny, and when a defendant discloses prior
convictions at the outset of her testimony, the jury will bear
those convictions in mind as she testifies, and will scrutinize
what she says more carefully. The purpose of Rule 609, in making
some convictions admissible to impeach a witness's credibility, is
thus fully served by a defendant's own testimony that the
convictions occurred.
It is true that when convictions are revealed only on
cross-examination, the revelation also warns the factfinder, but
the timing of their disclosure may do more. The jury may feel that
in testifying without saying anything about the convictions the
defendant has meant to conceal them. The jury's assessment of the
defendant's testimony may be affected not only by knowing that she
has committed crimes in the past, but by blaming her for not being
forthcoming when she seemingly could have been. Creating such an
impression of current deceit by concealment is very much at odds
with any purpose behind Rule 609, being obviously antithetical to
dispassionate factfinding in support of a sound conclusion. The
chance to create that impression is a tactical advantage for the
Government, but only in the majority's dismissive sense of the
term; it may affect the outcome of the trial, but only if it
disserves the search for truth.
Allowing the defendant to introduce the convictions on direct
examination thus tends to promote fairness of trial without
depriving the Government of anything to which it is entitled. There
is no reason to discourage the defendant from introducing the
conviction herself, as the majority's waiver rule necessarily
does.
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