Ohler v. United States, 529 U.S. 753, 9 (2000)

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

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

Souter, J., dissenting

ant to appeal would require courts either to attempt wholly speculative harmless-error analysis, or to grant new trials to some defendants who were not harmed by the ruling, and to some who never even intended to testify. In requiring testimony and actual impeachment before a defendant could appeal an in limine ruling to admit prior convictions, therefore, Luce did not derive a waiver rule from some general notion of fairness; it merely acknowledged the incapacity of an appellate court to assess the significance of the ruling for a defendant who remains silent.

This case is different, there being a factual record on which Ohler's claim can be reviewed. She testified, and there is no question that the in limine ruling controlled her counsel's decision to enquire about the earlier conviction; defense lawyers do not set out to impeach their own witnesses, much less their clients. Since 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, and Luce does not dictate today's result.1

In fact, the majority's principal reliance is not on precedent but on the "commonsense" rule that "a party introducing evidence cannot complain on appeal that the evi-1 The Luce Court anticipated as much: "It is clear, of course, that had petitioner testified and been impeached by evidence of a prior conviction, the District Court's decision to admit the impeachment evidence would have been reviewable on appeal along with any other claims of error. The Court of Appeals would then have had a complete record detailing the nature of petitioner's testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury's verdict." 469 U. S., at 41. There are, of course, practical issues that may arise in these cases; for example, the trial court may feel unable to render a final and definitive in limine ruling. The majority does not focus on these potential difficulties, and neither do I, though some lower courts have addressed them. See, e. g., Wilson v. Williams, 182 F. 3d 562 (CA7 1999) (en banc). For the purposes of this case, we need consider only the circumstance in which a district court makes a ruling that is plainly final.


Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

Last modified: October 4, 2007