Ohler v. United States, 529 U.S. 753, 4 (2000)

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Opinion of the Court

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 right.1 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 . . . ."

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