Ohler v. United States, 529 U.S. 753, 5 (2000)

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Cite as: 529 U. S. 753 (2000)

Opinion of the Court

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 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.


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