Ohler v. United States, 529 U.S. 753, 6 (2000)

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Opinion of the Court

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.

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