Ohler v. United States, 529 U.S. 753, 11 (2000)

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

Souter, J., dissenting

he was held to have thrown it all away by doing his best to protect his position by offering evidence of his own").2 The general thrust of the law of evidence, then, not only fails to support the majority's approach, but points rather clearly in the other direction.

With neither precedent nor principle to support its chosen rule, the majority is reduced to saying that "there is nothing 'unfair' . . . about putting petitioner to her choice in accordance with the normal rules of trial." 3 Ante, at 759. Things are not this simple, however.

Any claim of a new rule's fairness under normal trial conditions will have to stand or fall on how well the rule would serve the objects that trials in general, and the Rules of Evidence in particular, are designed to achieve. Thus the provisions of Federal Rule of Evidence 102, that "[t]hese rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." A judge's job, accordingly, is to curb the tactics of the trial battle in favor of weighing evidence calmly and getting to the most sensible understanding of whatever gave rise to the controversy before the court. The question is not which side gains a tactical advantage, but which rule assists in uncovering the truth. Today's new rule can make no such claim.

2 The point on which the analysis of the cited treatises turns, it should be clear, is not which party first introduces the evidence, but rather which party seeks introduction and which exclusion. A defense lawyer who elicits testimony about prior convictions on direct examination, having failed in an attempt to have them excluded, is plainly making a defensive use of the convictions; he has no desire to impeach his client. The fact that it is the defense lawyer who first introduces the convictions, then, is irrelevant to the principle the majority invokes.

3 For the reasons just given, this begs the question, which is whether the "normal rules of trial" apply beyond the normal circumstances for which they were devised.


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