During his trial in Federal District Court on federal drug
charges, petitioner moved to preclude the Government from using a
prior state conviction to impeach him if he testified. Petitioner
made no commitment to testify if the motion were granted and no
proffer as to what his testimony would be. The District Court
denied the motion
in limine, ruling that the prior
conviction fell within the category of permissible impeachment
evidence under Federal Rule of Evidence 609(a). Petitioner did not
testify, and the jury returned guilty verdicts. The Court of
Appeals affirmed, holding that since petitioner did not testify, it
would not consider petitioner's contention that the District Court
abused its discretion in denying his motion
in limine
without making a finding, as required by Rule 609(a)(1), that the
probative value of the prior conviction outweighed its prejudicial
effect.
Held: To raise and preserve for review the claim of
improper impeachment with a prior conviction, a defendant must
testify. To perform the weighing of the prior conviction's
probative value against its prejudicial effect, as required by Rule
609(a)(1), the reviewing court must know the precise nature of the
defendant's testimony, which is unknowable when, as here, the
defendant does not testify. Any possible harm flowing from a
district court's
in limine ruling permitting impeachment
by a prior conviction is wholly speculative. On the record in this
case, it is conjectural whether the District Court would have
allowed the Government to impeach with the prior conviction.
Moreover, when the defendant does not testify, the reviewing court
has no way of knowing whether the Government would have sought so
to impeach, and cannot assume that the trial court's adverse ruling
motivated the defendant's decision not to testify. Even if these
difficulties could be surmounted, the reviewing court would still
face the question of harmless error. If
in limine rulings
under Rule 609(a) were reviewable, almost any error would result in
automatic reversal, since the reviewing court could not logically
term "harmless" an error that presumptively kept the defendant from
testifying. Requiring a defendant to testify in order to preserve
Rule 609(a) claims enables the reviewing court to determine the
impact any erroneous impeachment may have in light of the record as
a whole, and
Page 469 U. S. 39
tends to discourage making motions to exclude impeachment
evidence solely to "plant" reversible error in the event of
conviction. Pp.
469 U. S.
41-43.
713 F.2d 1236, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which all
other Members joined, except STEVENS, J., who took no part in the
consideration or decision of the case. BRENNAN, J., filed a
concurring opinion, in which MARSHALL, J., joined,
post,
p.
469 U. S.
43.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to resolve a conflict among the Circuits
as to whether the defendant, who did not testify at trial, is
entitled to review of the District Court's ruling denying his
motion to forbid the use of a prior conviction to impeach his
credibility.
I
Petitioner was indicted on charges of conspiracy, and possession
of cocaine with intent to distribute, in violation of 21 U.S.C. ยงยง
846 and 841(a)(1). During his trial in the United States District
Court for the Western District of Tennessee, petitioner moved for a
ruling to preclude the Government from using a 1974 state
conviction to impeach him if he testified. There was no commitment
by petitioner that he would testify if the motion were granted, nor
did he make a proffer to the court as to what his testimony would
be. In opposing the motion, the Government represented that the
conviction was for a serious crime -- possession of a controlled
substance.
The District Court ruled that the prior conviction fell within
the category of permissible impeachment evidence
Page 469 U. S. 40
under Federal Rule of Evidence 609(a). [
Footnote 1] The District Court noted, however, that the
nature and scope of petitioner's trial testimony could affect the
court's specific evidentiary rulings; for example, the court was
prepared to hold that the prior conviction would be excluded if
petitioner limited his testimony to explaining his attempt to flee
from the arresting officers. However, if petitioner took the stand
and denied any prior involvement with drugs, he could then be
impeached by the 1974 conviction. Petitioner did not testify, and
the jury returned guilty verdicts.
II
The United States Court of Appeals for the Sixth Circuit
affirmed. 713 F.2d 1236 (1983). The Court of Appeals refused to
consider petitioner's contention that the District Court abused its
discretion in denying the motion
in limine [
Footnote 2] without making an explicit
finding that the probative value of the prior conviction outweighed
its prejudicial effect. The Court of Appeals held that, when the
defendant does not testify, the court will not review the District
Court's
in limine ruling.
Some other Circuits have permitted review in similar situations;
[
Footnote 3] we granted
certiorari to resolve the conflict. 466 U.S. 903 (1984). We
affirm.
Page 469 U. S. 41
III
It is clear, of course, that had petitioner testified and been
impeached by evidence of a prior conviction, 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.
A reviewing court is handicapped in any effort to rule on subtle
evidentiary questions outside a factual context. [
Footnote 4] This is particularly true under
Rule 609(a)(1), which directs the court to weigh the probative
value of a prior conviction against the prejudicial effect to the
defendant. To perform this balancing, the court must know the
precise nature of the defendant's testimony, which is unknowable
when, as here, the defendant does not testify. [
Footnote 5]
Any possible harm flowing from a district court's
in
limine ruling permitting impeachment by a prior conviction is
wholly speculative. The ruling is subject to change when the case
unfolds, particularly if the actual testimony differs from what was
contained in the defendant's proffer. Indeed even if nothing
unexpected happens at trial, the district judge is free, in the
exercise of sound judicial discretion, to
Page 469 U. S. 42
alter a previous
in limine ruling. On a record such as
here, it would be a matter of conjecture whether the District Court
would have allowed the Government to attack petitioner's
credibility at trial by means of the prior conviction.
When the defendant does not testify, the reviewing court also
has no way of knowing whether the Government would have sought to
impeach with the prior conviction. If, for example, the
Government's case is strong, and the defendant is subject to
impeachment by other means, a prosecutor might elect not to use an
arguably inadmissible prior conviction.
Because an accused's decision whether to testify "seldom turns
on the resolution of one factor,"
New Jersey v. Portash,
440 U. S. 450,
440 U. S. 467
(1979) (BLACKMUN, J., dissenting), a reviewing court cannot assume
that the adverse ruling motivated a defendant's decision not to
testify. In support of his motion a defendant might make a
commitment to testify if his motion is granted; but such a
commitment is virtually risk free because of the difficulty of
enforcing it.
Even if these difficulties could be surmounted, the reviewing
court would still face the question of harmless error.
See
generally United States v. Hasting, 461 U.
S. 499 (1983). Were
in limine rulings under
Rule 609(a) reviewable on appeal, almost any error would result in
the windfall of automatic reversal; the appellate court could not
logically term "harmless" an error that presumptively kept the
defendant from testifying. Requiring that a defendant testify in
order to preserve Rule 609(a) claims will enable the reviewing
court to determine the impact any erroneous impeachment may have
had in light of the record as a whole; it will also tend to
discourage making such motions solely to "plant" reversible error
in the event of conviction.
Petitioner's reliance on
Brooks v. Tennessee,
406 U. S. 605
(1972), and
New Jersey v. Portash, supra, is misplaced. In
those cases we reviewed Fifth Amendment challenges to state court
rulings that operated to dissuade defendants from testifying. We
did not hold that a federal court's preliminary
Page 469 U. S. 43
ruling on a question not reaching constitutional dimensions --
such as a decision under Rule 609(a)is reviewable on appeal.
However, JUSTICE POWELL, in his concurring opinion in
Portash, stated essentially the rule we adopt today:
"The preferred method for raising claims such as [petitioner's]
would be for the defendant to take the stand and appeal a
subsequent conviction. . . . Only in this way may the claim be
presented to a reviewing court in a concrete factual context."
440 U.S. at
440 U. S.
462.
We hold that to raise and preserve for review the claim of
improper impeachment with a prior conviction, a defendant must
testify. Accordingly, the judgment of the Court of Appeals is
Affirmed .
JUSTICE STEVENS took no part in the consideration or decision of
this case.
[
Footnote 1]
Rule 609(a) provides:
"General Rule. -- For the purpose of attacking the credibility
of a witness, evidence that he has been convicted of a crime shall
be admitted if elicited from him or established by public record
during cross-examination but only if the crime (1) was punishable
by death or imprisonment in excess of one year under the law under
which he was convicted, and the court determines that the probative
value of admitting this evidence outweighs its prejudicial effect
to the defendant, or (2) involved dishonesty or false statement,
regardless of the punishment."
[
Footnote 2]
"
In limine" has been defined as "[o]n or at the
threshold; at the very beginning; preliminarily." Black's Law
Dictionary 708 (5th ed.1979). We use the term in a broad sense to
refer to any motion, whether made before or during trial, to
exclude anticipated prejudicial evidence before the evidence is
actually offered.
[
Footnote 3]
See, e.g., United States v. Lipscomb, 226 U.S.App.D.C.
312, 332, 702 F.2d 1049, 1069 (1983) (en banc);
United States
v. Kiendra, 663 F.2d 349, 352 (CA1 1981);
United States v.
Fountain, 642 F.2d 1083, 1088 (CA7),
cert. denied,
451 U.S. 993 (1981);
United States v. Toney, 615 F.2d 277,
279 (CA5),
cert. denied, 449 U.S. 985 (1980). The Ninth
Circuit allows review if the defendant makes a record unequivocally
announcing his intention to testify if his motion to exclude prior
convictions is granted, and if he proffers the substance of his
contemplated testimony.
See United States v. Cook, 608
F.2d 1175, 1186 (1979) (en banc),
cert. denied, 444 U.S.
1034 (1980).
[
Footnote 4]
Although the Federal Rules of Evidence do not explicitly
authorize
in limine rulings, the practice has developed
pursuant to the district court's inherent authority to manage the
course of trials.
See generally Fed.Rule Evid. 103(c);
cf. Fed. Rule Crim.Proc. 12(e).
[
Footnote 5]
Requiring a defendant to make a proffer of testimony is no
answer; his trial testimony could, for any number of reasons,
differ from the proffer.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
concurring.
I join the opinion of the Court because I understand it to hold
only that a defendant who does not testify at trial may not
challenge on appeal an
in limine ruling respecting
admission of a prior conviction for purposes of impeachment under
Rule 609(a) of the Federal Rules of Evidence. The Court correctly
identifies two reasons for precluding appellate review unless the
defendant testifies at trial. The careful weighing of probative
value and prejudicial effect that Rule 609(a) requires of a
district court can only be evaluated adequately on appeal in the
specific factual context of a trial as it has unfolded. And if the
defendant declines to testify, the reviewing court is handicapped
in making the required harmless-error determination should the
district court's
in limine ruling prove to have been
incorrect.
Page 469 U. S. 44
I do not understand the Court to be deciding broader questions
of appealability
vel non of
in limine rulings
that do not involve Rule 609(a). In particular, I do not read the
Court's quotation of JUSTICE POWELL's concurring opinion in
New
Jersey v. Portash, 440 U. S. 450,
440 U. S. 462
(1979),
see ante, at
469 U. S. 43, as
intimating a determination with respect to a federal court's
in
limine ruling concerning the constitutionality of admitting
immunized testimony for impeachment purposes. In that case, and
others in which the determinative question turns on legal and not
factual considerations, a requirement that the defendant actually
testify at trial to preserve the admissibility issue for appeal
might not necessarily be appropriate. The appellate court's need to
frame the question in a concrete factual context would be less
acute, and the calculus of interests correspondingly different,
than in the Rule 609(a) case the Court decides today.