Ohler v. United States, 529 U.S. 753, 8 (2000)

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Souter, J., dissenting

the defendant to weigh such pros and cons in deciding whether to testify."

For these reasons, we conclude that 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.

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 Federal Rule of Evidence 609(a). Since the defendant had not testified, he had never suffered the impeachment, and the question was whether he should be allowed to appeal the in limine ruling anyway, on the rationale that the threatened impeachment had discouraged the exercise of his right to defend by his own testimony. The answer turned on the practical realities of appellate review.

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-

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