Stealing Thunder: Ohler v. United States & Last Week’s Undisclosed Addendum

In last week’s Addendum episode of the Undisclosed Podcast, I mentioned the Supreme Court’s opinion in Ohler v. United States, 529 U.S. 753 (2000), which creates a sort-of Hobson’s Choice for defense counsel. So, what’s the significance of the Ohler opinion? 

Federal Rule of Evidence 609 sets forth the standards that apply when a party wants to impeach the testimony of a witness at trial. Assume that (1) your client is charged with importation of marijuana and possession of marijuana with the intent to distribute; (2) your client has a prior conviction for possession of methamphetamine; (3) the judge has determined that your client’s meth conviction can be used to impeach her under Rule 609 if she testifies; and (4) your has decided that she wants to testify.

If you are defense counsel and you think that the judge’s ruling is incorrect, what do you do? You don’t want your client testifying in her defense, followed by the prosecutor leaping up on cross-examination and saying, “Isn’t it true that you were previously convicted of possessing meth?” So maybe you “steal the thunder”* of the prosecutor by eliciting this information on direct examination. In other words, you ask her about her meth conviction at the start of direct examination, have her testify that she’s changed her ways and reformed since then, and then ask her about the current charges against her.

Well, that’s exactly what defense counsel did in Ohler. Then, after his client was convicted, counsel tried to appeal, claiming that the judges ruling on the meth conviction was improper. After all, what’s likelier? That the jury would properly use that conviction to assess his client’s credibility or that they would improperly use it as evidence of her propensity to deal drugs?

But the Supreme Court wouldn’t reach the merits of that claim. Instead, it noted that, “[g]enerally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.” Of course, defense counsel claimed that he only admitted evidence of the meth conviction because the court had deemed it admissible and it was clear that otherwise the prosecutor would have used it on cross-examination. But, according to the Supreme Court, while

the trial judge had indicated he would allow its use,…the Government still had to consider whether its use might be deemed reversible error on appeal. This choice is often based on the Government’s appraisal of the apparent effect of the defendant’s testimony. If she has offered a plausible, innocent explanation of the evidence against her, it will be inclined to use the prior conviction; if not, it may decide not to risk possible reversal on appeal from its use.

Due to the structure of trial, the Government has one inherent advantage in these competing trial strategies. Cross-examination comes after direct examination, and therefore the Government need not make its choice until the defendant has elected whether or not to take the stand in her own behalf and after the Government has heard the defendant testify.

So, that’s the nature of the Hobson’s Choice created by Ohler: If you’re defense counsel, do you “steal the thunder” of the prosecutor but lose the right to appeal on the impeachment issue or allow the prosecutor to use your client’s prior conviction(s) as a lightning strike right after (s)he has testified on direct examination?

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*Research suggests that this technique can be effective. After the episode, a reader sent us this article:  Download Stealing Thunder

-CM