Federal Evidence Review

After failing to exclude evidence of prior convictions, the defense elected to introduce the convictions first at trial which resulted in waiver of any challenge on appeal, in United States v. El-Alamin, 574 F.3d 915 (8th Cir. Aug. 4, 2009) (No. 07-3774)

Most evidence is reviewed for an abuse of discretion. The failure to persevere an evidence issue, normally by a contemporaneous trial objection, can waive the issue on appeal. The Eighth Circuit recently considered the waiver of a challenge to the use of the defendant’s prior convictions for impeachment purposes, under FRE 609(a)(1).

In the case, defendant was went to trial on charges of possessing with intent to distribute cocaine base, and for being a felon in possession of a firearm. The defendant moved in limine to exclude the use of his prior 1998 aggravated robbery conviction and 1997 drug conviction. The trial court denied the motion and ruled they were admissible for impeachment under FRE 609(a)(1). At trial, after this ruling, the defense elected to present the evidence of the prior convictions during the defendant’s testimony. The defendant was convicted by the jury. On appeal, he renewed his challenge to the introduction of his prior convictions.

The Eighth Circuit affirmed and concluded the issue had been waived. As the circuit explained:

“[I]t was El-Alamin, not the government, who first introduced the convictions at trial. El-Alamin testified about the convictions during his own direct examination. Only then did the government seek to impeach El-Alamin’s testimony concerning the convictions. By choosing to preemptively introduce the convictions, El-Alamin waived his right to appeal the trial court’s denial of his motion in limine. See United States v. Watler, 461 F.3d 1005, 1009 (8th Cir. 2006) (“Because [the defendant] elected to address his prior conviction on direct examination, he forfeited the right to relief on this issue.”) (citing Ohler v. United States, 529 U.S. 753, 760 (2000)). The district court did not err.”

In addition to Ohler, this result has been followed in other cases. See, e.g., United States v. Delgado, 401 F.3d 290, 301 (5th Cir. 2005) (“Here, as in Ohler, … [b]y introducing the evidence [of the prior conviction] in the first instance, even if done to ‘remove the sting’ of the conviction, Delgado has waived his appeal as to this matter. Accordingly, we need not consider whether the district court’s admission of the evidence was erroneous.”). After an advserse in limine ruling, a party may decide that if the evidence will be admitted, it may be best to introduce the evidence first to mitigate the sting and avoid any surprise by the jury. The El-Alamin case reminds that this strategy can sometimes waive the issue from review on appeal.