Ohler v. United States, 529 U.S. 753, 12 (2000)

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



Souter, J., dissenting

Previously convicted witnesses may testify honestly, but some convictions raise more than the ordinary question about the witness's readiness to speak truthfully. A fact-finder who appreciates a heightened possibility of perjury will respond with heightened scrutiny, and when a defendant discloses prior convictions at the outset of her testimony, the jury will bear those convictions in mind as she testifies, and will scrutinize what she says more carefully. The purpose of Rule 609, in making some convictions admissible to impeach a witness's credibility, is thus fully served by a defendant's own testimony that the convictions occurred.

It is true that when convictions are revealed only on cross-examination, the revelation also warns the factfinder, but the timing of their disclosure may do more. The jury may feel that in testifying without saying anything about the convictions the defendant has meant to conceal them. The jury's assessment of the defendant's testimony may be affected not only by knowing that she has committed crimes in the past, but by blaming her for not being forthcoming when she seemingly could have been. Creating such an impression of current deceit by concealment is very much at odds with any purpose behind Rule 609, being obviously antithetical to dispassionate factfinding in support of a sound conclusion. The chance to create that impression is a tactical advantage for the Government, but only in the majority's dismissive sense of the term; it may affect the outcome of the trial, but only if it disserves the search for truth.

Allowing the defendant to introduce the convictions on direct examination thus tends to promote fairness of trial without depriving the Government of anything to which it is entitled. There is no reason to discourage the defendant from introducing the conviction herself, as the majority's waiver rule necessarily does.

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

Last modified: October 4, 2007