OHLER v. UNITED STATES
No. 98-9828
Supreme Court of the United States
Argued March 20, 2000—Decided May 22, 2000
529 U.S. 753
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
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
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
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 cross-examination. 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 cross-examination, 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.
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.
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
the defendant to weigh such pros and cons in deciding whether to testify.”
For these reasons, we conclude that a defendant who pre-emptively 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
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-
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 today’s result.1
In fact, the majority’s principal reliance is not on precedent but on the “commonsense” rule that “a party intro-
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
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
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
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.
Notes
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“(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. . . .” 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 cross-examination, 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.