OHLER v. UNITED STATES

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753 OCTOBER TERM, 1999
Syllabus
OHLER v. UNITED STATES
certiorari to the united states court of appeals for
the ninth circuit
No. 98–9828. Argued March 20, 2000—Decided May 22, 2000
Petitioner Ohler was tried on drug charges. The Federal District Court
granted the Government’s motion in limine to admit her prior felony
drug conviction as impeachment evidence under Federal Rule of Evi-
dence 609(a)(1). Ohler testified at trial and admitted the prior convic-
tion on direct examination. The jury convicted her. In affirming, the
Ninth Circuit rejected her challenge to the District Court’s in limine
ruling, holding that she waived her objection by introducing the evi-
dence during her direct examination.
Held: A defendant who pre-emptively introduces evidence of a prior con-
viction on direct examination may not challenge the admission of such
evidence on appeal. Ohler attempts to avoid the well-established com-
monsense principle that a party introducing evidence cannot complain
on appeal that the evidence was erroneously admitted by invoking Fed-
eral Rules of Evidence 103 and 609. However, neither Rule addresses
the question at issue here. She also argues that applying such a waiver
rule in this situation would compel a defendant to forgo the tactical
advantage of pre-emptively introducing the conviction in order to appeal
the in limine ruling. But both the Government and the defendant in a
criminal trial must make choices as the trial progresses. Ohler’s sub-
mission would deny to the Government its usual right to choose, after
she testifies, whether or not to use her prior conviction against her.
She seeks to short-circuit that decisional process by offering the con-
viction herself (and thereby removing the sting) and still preserve its
admission as a claim of error on appeal. But here she runs into the
position taken by the Court in Luce v. United States, 469 U. S. 38, 41,
that any possible harm flowing from a district court’s in limine ruling
permitting impeachment by a prior conviction is wholly speculative.
Only when the Government exercises its option to elicit the testimony
is an appellate court confronted with a case where, under normal trial
rules, the defendant can claim the denial of a substantial right if in fact
the district court’s in limine ruling proved to be erroneous. Finally,
applying this rule to Ohler’s situation does not unconstitutionally bur-
den her right to testify, because the rule does not prevent her from
taking the stand and presenting any admissible testimony she chooses.
Pp. 755–760.
169 F. 3d 1200, affirmed.

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754 OHLER v. UNITED STATES
Opinion of the Court
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dis-
senting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined,
post, p. 760.
Benjamin L. Coleman, by appointment of the Court, 528
U. S. 984, argued the cause for petitioner. With him on the
briefs was Mario G. Conte.
Barbara McDowell argued the cause for the United
States. With her on the brief were Solicitor General Wax-
man, Assistant Attorney General Robinson, Deputy Solici-
tor General Dreeben, and Jonathan L. Marcus.*
Chief Justice Rehnquist delivered the opinion of the
Court.
Petitioner, Maria Ohler, was arrested and charged with
importation of marijuana and possession of marijuana with
the intent to distribute. The District Court granted the
Government’s motion in limine seeking to admit evidence
of her prior felony conviction as impeachment evidence
under Federal Rule of Evidence 609(a)(1). Ohler testified
at trial and admitted on direct examination that she had
been convicted of possession of methamphetamine in 1993.
The jury convicted her of both counts, and the Court of Ap-
peals for the Ninth Circuit affirmed. We agree with the
Court of Appeals that Ohler may not challenge the in limine
ruling of the District Court on appeal.
Maria Ohler drove a van from Mexico to California in July
1997. As she passed through the San Ysidro Port of Entry,
a customs inspector noticed that someone had tampered
with one of the van’s interior panels. Inspectors searched
the van and discovered approximately 81 pounds of mari-
juana. Ohler was arrested and charged with importation
of marijuana and possession of marijuana with the intent to
*Jody Manier Kris and Lisa Kemler filed a brief for the National As-
sociation of Criminal Defense Lawyers et al. as amici curiae urging
reversal.

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Opinion of the Court
distribute. Before trial, the Government filed motions in
limine seeking to admit Ohler’s prior felony conviction as
character evidence under Federal Rule of Evidence 404(b)
and as impeachment evidence under Rule 609(a)(1). The
District Court denied the motion to admit the conviction
as character evidence, but reserved ruling on whether the
conviction could be used for impeachment purposes. On the
first day of trial, the District Court ruled that if Ohler tes-
tified, evidence of her prior conviction would be admissible
under Rule 609(a)(1). App. 97–98. She testified in her own
defense, denying any knowledge of the marijuana. She also
admitted on direct examination that she had been con-
victed of possession of methamphetamine in 1993. The jury
found Ohler guilty of both counts, and she was sentenced
to 30 months in prison and 3 years’ supervised release. Id.,
at 140–141.
On appeal, Ohler challenged the District Court’s in limine
ruling allowing the Government to use her prior conviction
for impeachment purposes. The Court of Appeals for the
Ninth Circuit affirmed, holding that Ohler waived her ob-
jection by introducing evidence of the conviction during
her direct examination. 169 F. 3d 1200 (1999). We granted
certiorari to resolve a conflict among the Circuits regarding
whether appellate review of an in limine ruling is available
in this situation. 528 U. S. 950 (1999). See United States v.
Fisher, 106 F. 3d 622 (CA5 1997) (allowing review); United
States v. Smiley, 997 F. 2d 475 (CA8 1993) (holding objection
waived). We affirm.
Generally, a party introducing evidence cannot complain
on appeal that the evidence was erroneously admitted. See
1 J. Weinstein & M. Berger, Weinstein’s Federal Evidence
§ 103.14, p. 103–30 (2d ed. 2000). Cf. 1 J. Strong, McCormick
on Evidence § 55, p. 246 (5th ed. 1999) (“If a party who has
objected to evidence of a certain fact himself produces evi-
dence from his own witness of the same fact, he has waived
his objection”). Ohler seeks to avoid the consequences of

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756 OHLER v. UNITED STATES
Opinion of the Court
this well-established commonsense principle by invoking
Rules 103 and 609 of the Federal Rules of Evidence. But
neither of these Rules addresses the question at issue here.
Rule 103 sets forth the unremarkable propositions that a
party must make a timely objection to a ruling admitting
evidence and that a party cannot challenge an evidentiary
ruling unless it affects a substantial right.1 The Rule does
not purport to determine when a party waives a prior ob-
jection, and it is silent with respect to the effect of intro-
ducing evidence on direct examination, and later assigning
its admission as error on appeal.
Rule 609(a) is equally unavailing for Ohler; it merely
identifies the situations in which a witness’ prior convic-
tion may be admitted for impeachment purposes.2 The Rule
originally provided that admissible prior conviction evi-
dence could be elicited from the defendant or established by
public record during cross-examination, but it was amended
in 1990 to clarify that the evidence could also be introduced
on direct examination. According to Ohler, it follows from
this amendment that a party does not waive her objection
to the in limine ruling by introducing the evidence herself.
However, like Rule 103, Rule 609(a) simply does not address
this issue. There is no question that the Rule authorizes
1 Federal Rule of Evidence 103(a): “Error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right of the
party is affected, and
“(1) . . . In case the ruling is one admitting evidence, a timely objection
or motion to strike appears of record, stating the specific ground of objec-
tion, if the specific ground was not apparent from the context . . . .”
2 Rule 609(a): “For the purpose of attacking the credibility of a witness,
(1) evidence that a witness other than an accused has been convicted of a
crime shall be admitted, subject to Rule 403, if the crime was punishable
by death or imprisonment in excess of one year under the law under which
the witness was convicted, and evidence that an accused has been con-
victed of such a crime shall be admitted if the court determines that the
probative value of admitting this evidence outweighs its prejudicial effect
to the accused . . . .”

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Opinion of the Court
the eliciting of a prior conviction on direct examination, but
it does no more than that.
Next, Ohler argues that it would be unfair to apply such
a waiver rule in this situation because it compels a defend-
ant to forgo the tactical advantage of pre-emptively introduc-
ing the conviction in order to appeal the in limine ruling.
She argues that if a defendant is forced to wait for evidence
of the conviction to be introduced on cross-examination, the
jury will believe that the defendant is less credible because
she was trying to conceal the conviction. The Government
disputes that the defendant is unduly disadvantaged by wait-
ing for the prosecution to introduce the conviction on cross-
examination. First, the Government argues that it is de-
batable whether jurors actually perceive a defendant to be
more credible if she introduces a conviction herself. Brief
for United States 28. Second, even if jurors do consider the
defendant more credible, the Government suggests that it is
an unwarranted advantage because the jury does not realize
that the defendant disclosed the conviction only after failing
to persuade the court to exclude it. Ibid.
Whatever the merits of these contentions, they tend to
obscure the fact that both the Government and the defendant
in a criminal trial must make choices as the trial progresses.
For example, the defendant must decide whether or not to
take the stand in her own behalf. If she has an innocent
or mitigating explanation for evidence that might other-
wise incriminate, acquittal may be more likely if she takes
the stand. Here, for example, Ohler testified that she had
no knowledge of the marijuana discovered in the van, that
the van had been taken to Mexico without her permis-
sion, and that she had gone there simply to retrieve the van.
But once the defendant testifies, she is subject to cross-
examination, including impeachment by prior convictions,
and the decision to take the stand may prove damaging in-
stead of helpful. A defendant has a further choice to make
if she decides to testify, notwithstanding a prior conviction.

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The defendant must choose whether to introduce the con-
viction on direct examination and remove the sting or to
take her chances with the prosecutor’s possible elicitation of
the conviction on cross-examination.
The Government, too, in a case such as this, must make
a choice. If the defendant testifies, it must choose whether
or not to impeach her by use of her prior conviction. Here
the trial judge had indicated he would allow its use,3 but
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.
Ohler’s submission would deny to the Government its
usual right to decide, after she testifies, whether or not to
use her prior conviction against her. She seeks to short
circuit that decisional process by offering the conviction her-
self (and thereby removing the sting) and still preserve its
admission as a claim of error on appeal.
3 The District Court ruled on the first day of trial that Ohler’s prior
conviction would be admissible for impeachment purposes, and the court
likely would have abided by that ruling at trial. However, in limine
rulings are not binding on the trial judge, and the judge may always
change his mind during the course of a trial. See Luce v. United States,
469 U. S. 38, 41–42 (1984). Ohler’s position, therefore, would deprive the
trial court of the opportunity to change its mind after hearing all of the
defendant’s testimony.

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Opinion of the Court
But here Ohler runs into the position taken by the Court
in a similar, but not identical, situation in Luce v. United
States, 469 U. S. 38 (1984), that “[a]ny possible harm flowing
from a district court’s in limine ruling permitting impeach-
ment by a prior conviction is wholly speculative.” Id., at 41.
Only when the Government exercises its option to elicit the
testimony is an appellate court confronted with a case where,
under the normal rules of trial, the defendant can claim the
denial of a substantial right if in fact the district court’s
in limine ruling proved to be erroneous. In our view, there
is nothing “unfair,” as Ohler puts it, about putting her to her
choice in accordance with the normal rules of trial.
Finally, Ohler argues that applying this rule to her situa-
tion unconstitutionally burdens her right to testify. She re-
lies on Rock v. Arkansas, 483 U. S. 44 (1987), where we held
that a prohibition of hypnotically refreshed testimony in-
terfered with the defendant’s right to testify. But here the
rule in question does not prevent Ohler from taking the
stand and presenting any admissible testimony which she
chooses. She is of course subject to cross-examination and
subject to impeachment by the use of a prior conviction. In
a sense, the use of these tactics by the Government may
deter a defendant from taking the stand. But, as we said in
McGautha v. California, 402 U. S. 183, 215 (1971):
“It has long been held that a defendant who takes the
stand in his own behalf cannot then claim the privilege
against cross-examination on matters reasonably related
to the subject matter of his direct examination. . . . It is
not thought overly harsh in such situations to require
that the determination whether to waive the privilege
take into account the matters which may be brought out
on cross-examination. It is also generally recognized
that a defendant who takes the stand in his own behalf
may be impeached by proof of prior convictions or the
like. . . . Again, it is not thought inconsistent with the
enlightened administration of criminal justice to require

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760 OHLER v. UNITED STATES
Souter, J., dissenting
the defendant to weigh such pros and cons in deciding
whether to testify.”
For these reasons, we conclude that a defendant who pre-
emptively introduces evidence of a prior conviction on di-
rect examination may not on appeal claim that the admission
of such evidence was error.
The judgment of the Court of Appeals for the Ninth
Circuit is therefore affirmed.
It is so ordered.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
The majority holds that a testifying defendant perforce
waives the right to appeal an adverse in limine ruling ad-
mitting prior convictions for impeachment. The holding is
without support in precedent, the rules of evidence, or the
reasonable objectives of trial, and I respectfully dissent.
The only case of this Court that the majority claims as
even tangential support for its waiver rule is Luce v. United
States, 469 U. S. 38 (1984). Ante, at 759. We held there
that a criminal defendant who remained off the stand could
not appeal an in limine ruling to admit prior convictions
as impeachment evidence under Federal Rule of Evidence
609(a). Since the defendant had not testified, he had never
suffered the impeachment, and the question was whether he
should be allowed to appeal the in limine ruling anyway, on
the rationale that the threatened impeachment had discour-
aged the exercise of his right to defend by his own testimony.
The answer turned on the practical realities of appellate
review.
An appellate court can neither determine why a defendant
refused to testify, nor compare the actual trial with the one
that would have occurred if the accused had taken the stand.
With unavoidable uncertainty about whether and how much
the in limine ruling harmed the defendant, and whether
it affected the trial at all, a rule allowing a silent defend-

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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, there-
fore, 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 law-
yers 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 prece-
dent but on the “commonsense” rule that “a party intro-
ducing 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 convic-
tion, 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.

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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 evi-
dence 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 posi-
tions, first requesting admission and then assigning error
to the admission of precisely the same evidence at his op-
ponent’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 de-
fendant has opposed admission of the evidence and intro-
duced 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 unsuc-
cessful 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) (“How-
ever, 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, Fed-
eral Evidence § 11, p. 65 (1977) (“Having done his best by
objecting, the adversary would be indeed ill treated if then

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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 noth-
ing ‘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 con-
ditions will have to stand or fall on how well the rule would
serve the objects that trials in general, and the Rules of Evi-
dence in particular, are designed to achieve. Thus the pro-
visions of Federal Rule of Evidence 102, that “[t]hese rules
shall be construed to secure fairness in administration, elimi-
nation 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 tac-
tics 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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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 defend-
ant 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 pur-
pose of Rule 609, in making some convictions admissible to
impeach a witness’s credibility, is thus fully served by a de-
fendant’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 tacti-
cal 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.