A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Fed. R. Evid. 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 the defendant does not testify.
Luce was indicted on charges of conspiracy, and possession of cocaine with intent to distribute. During his trial in the District Court, he 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 Luce 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. The District Court noted, however, that the nature and scope of Luce's trial testimony could affect the court's specific evidentiary ruling. For example, the court was prepared to hold that the prior conviction would be excluded if Luce limited his testimony to explaining his attempt to flee from the arresting officers. However, if he took the stand and denied any prior involvement with drugs, he could then be impeached by the 1974 conviction. Luce did not testify, and the jury returned guilty verdicts. On appeal, the appeals court affirmed the district court judgment.
Is a defendant entitled to review where prior convictions were used to impeach credibility without testifying?
The United States Supreme Court affirmed the appeals court judgment and held that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant had to testify. A court could not perform a balancing test between probative value and prejudicial effect otherwise.