FindLaw > Criminal Law Summaries > Ohler v. United States

Case: Ohler v. United States

Issue: If a trial court makes a preliminary ruling that a defendant’s prior conviction is admissible for impeachment purposes, can the defendant appeal such a ruling after introducing this evidence herself on direct?

Facts: Ohler was being tried for importation of marijuana and possession of marijuana with the intent to distribute. After the trial court granted the government’s motion in limine to admit evidence of her previous conviction for methamphetamine possession, as impeachment evidence under Federal Rule of Evidence 609(a)(1), Ohler decided to bring out this prior conviction under direct examination to "remove the sting" from the prosecutor’s possible elicitation of the conviction on cross-examination. [Under the trial court’s ruling, the prior conviction was only admissible in the event that Ohler testified.] The jury convicted Ohler on both counts, and she appealed to the United States Court of Appeals for the Ninth Circuit claiming that the trial court erred in admitting her prior conviction. The Ninth Circuit affirmed her conviction, holding that Ohler had waived her objection to the evidence by introducing it herself.

Holding: "[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."

Reasoning: Chief Justice Rehnquist delivered the Court's opinion stating that it is a "well-established commonsense principle" that "‘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.’"

In response to Ohler’s reliance upon Federal Rules of Evidence 103 (dealing with timely objections and evidentiary rulings affecting substantial rights) and 609 (identifying the situations in which a witness’ prior convictions can be admitted for impeachment purposes), Rehnquist noted that neither of these rules "addresses the question at issue here."

The Court recognized that its holding will sometimes compel defendants to forgo a tactical advantage. Nonetheless, Rehnquist stated that this is simply one of the many choices "both the Government and the defendant in a criminal trial must make . . . as the trial progresses." The Court explained that allowing the defendant to introduce the evidence first and then claim error would deny the Government the right to choose whether to impeach a testifying defendant with a prior conviction, and risk reversal, or forgo using the evidence. Relying on  Luce v. United States, 469 U.S. 38 (1984), the Court quoted approvingly that case’s language that "[a]ny possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative." Moreover, while the Ohler ruling might deter a defendant from taking the stand, it no more violates a defendant’s right to testify than did the Court’s prior rulings preventing testifying defendants from refusing to answer relevant questions (on Fifth Amendment grounds) reasonably related to the subject matter of direct examination.

Other Opinions: Justice Souter, joined in dissent by Justices Stevens, Ginsburg and Breyer, argued that the majority’s decision "is without support in precedent, the rules of evidence, or the reasonable objectives of trial."

Souter argued that Luce relied upon by the majority, turned on "practical realities of appellate review" that did not apply in this case. [In Luce, the Court held that a criminal defendant who did not testify could not appeal an in limine ruling to admit prior convictions as impeachment evidence under Federal Rule of Evidence 609(a).] Souter noted that "[a]n 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." In Ohler’s case, however, "[s]he testified, and there is no question that the in limine ruling controlled her counsel’s decision to inquire about the earlier conviction." Hence, "[s]ince 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."

The dissent also argued that the majority misapplied the commonsense rule that "a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted." The dissent maintained that this principle is important in situations where defendants might abuse their right to appeal by first requesting admission of a piece of evidence and later assigning error to the admission, but it does not apply to the case at hand because here there was a record of Ohler’s opposition to the evidence and Ohler only decided to introduce it after the trial court ruled against her.

Finally, Souter contended that the majority’s rule does not assist in "uncovering the truth," and suggested that allowing defendants to appeal such decisions would aid in the uncovering of truth and the fairness of trials, both of which are goals of the Federal Rules of Evidence.

Comment: This decision is profoundly unfair. The United States is routinely allowed to "take the sting out of the bite" by introducing its witnesses’ prior convictions on direct examination. Also referred to as "fronting" a witness’ blemishes, this practice greatly enhances witness credibility in the eyes of the jury. The Court’s decision effectively prohibits the defense from employing the same tactic without waiving the right to appeal the admission of the prior conviction. The harmful effect of the Court’s ruling can perhaps be mitigated by an instruction informing the jury that the reason the defendant did not elicit testimony about his prior conviction on direct examination was to avoid waiver of certain rights. Additionally, the prosecution should not be able to assert or imply that a defendant’s failure to mention the prior conviction on direct examination evidences a lack of candor.