Ohler v. United States, 529 U.S. 753, 10 (2000)

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762

OHLER v. UNITED STATES

Souter, J., dissenting

dence was erroneously admitted." Ante, at 755. But this is no more support for today's holding than Luce is, for the common sense that approves the rule also limits its reach to a point well short of this case. The general rule makes sense, first, when a party who has freely chosen to introduce evidence of a particular fact later sees his opponent's evidence of the same fact erroneously admitted. He suffers no prejudice. See Mercer v. Theriot, 377 U. S. 152, 154 (1964) (per curiam); 21 C. Wright & K. Graham, Federal Practice and Procedure 5039, p. 203 (1977). The rule makes sense, second, when the objecting party takes inconsistent positions, first requesting admission and then assigning error to the admission of precisely the same evidence at his opponent's behest. "The party should not be permitted 'to blow hot and cold' in this way." 1 J. Strong, McCormick on Evidence 55, p. 246, n. 14 (5th ed. 1999).

Neither of these reasons applies when (as here) the defendant has opposed admission of the evidence and introduced it herself only to mitigate its effect in the hands of her adversary. Such a case falls beyond the scope of the general principle, and the scholarship almost uniformly treats it as exceptional. See, e. g., 1 J. Wigmore, Evidence 18, p. 836 (P. Tillers rev. 1983) ("[A] party who has made an unsuccessful motion in limine to exclude evidence that he expects the proponent to offer may be able to first offer that same evidence without waiving his claim of error"); M. Graham, Handbook of Federal Evidence 103.4, p. 17 (1981) ("However, the party may . . . himself bring out evidence ruled admissible over his objection to minimize its effect without it constituting a waiver of his objection"); 1 McCormick, supra, 55, at 246 ("[W]hen [a party's] objection is made and overruled, he is entitled to treat this ruling as the 'law of the trial' and to explain or rebut, if he can, the evidence admitted over his protest"); D. Louisell & C. Mueller, Federal Evidence 11, p. 65 (1977) ("Having done his best by objecting, the adversary would be indeed ill treated if then

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