Federal Evidence Review

Seventh Circuit considers open issue on whether challenge to the admission of the plaintiff’s convictions for misdemeanor retail theft and misdemeanor obstructing a police officer were waived when the plaintiff introduced the convictions during the plaintiff’s case under the rationale of Ohler v. United States, 529 U.S. 753, 760 (2000) (recognizing waiver doctrine for impeachable convictions under FRE 609), in Clarett v. Roberts, _ F.3d _ (7th Cir. Sept. 23, 2011) (No. 09-2805)

FRE 609 provides that evidence of a prior conviction is admissible “[f]or the purpose of attacking the credibility of a witness.” A challenge to the admission of impeachment evidence may be waived. The Supreme Court has held “that a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error.” Ohler v. United States, 529 U.S. 753, 760 (2000) (recognizing waiver doctrine for impeachable convictions under FRE 609). The Seventh Circuit recently considered an open issue: “whether the Ohler principle applies in civil cases.”

The case involved a civil rights action alleging the use of excessive force and false arrest. The challenged conduct occurred when police officers went to the residence of plaintiff Clarett to ask her sons about a recent burglary. During the visit, a confrontation arose and the plaintiff was Tasered three times and arrested for obstruction and resisting arrest. After the criminal charges were dismissed, a civil action was filed against four police officers. Before trial, the court ruled that two of three criminal convictions of the plaintiff, for misdemeanor retail theft and misdemeanor obstructing a police officer, were admissible for impeachment. Evidence about both convictions were admitted during the direct examination of the plaintiff by her counsel. The jury returned a verdict for the defendant officers. On appeal, the plaintiff contended that the trial court erred in ruling that the prior convictions would be admissible.

The Seventh Circuit noted that “Clarett waived her most plausible claim of trial error—the court’s decision to admit two of her criminal convictions—when she introduced evidence of the convictions herself, before the officers could do so.” Clarett, _ F.3d at _. The circuit questioned whether the convictions could have been admitted. The misdemeanor offenses were inapplicable under FRE 609(a)(1), which applies to offenses “punishable by death or imprisonment in excess of one year.” The offenses were inadmissible under FRE 609(a)(2) since neither involved “an act of dishonesty or false statement as proof of an element of the offense.” Clarett, _ F.3d at _ n.2. FRE 608(b) barred the introduction of “specific instances of conduct bearing on a witness’s character for truthfulness … by extrinsic evidence” through extrinsic evidence.

Additionally, the defense could not use “extrinsic evidence to impeach a witness about a collateral matter.” Clarett, _ F.3d at _ (citing Young v. James Green Mgmt., Inc., 327 F.3d 616, 627 (7th Cir. 2003) (“Whether Olson blamed Luebbert for certain problems in his life was a collateral matter and, therefore, Green's counsel should not have been permitted to use extrinsic evidence to impeach Olson on this point.”); United States v. Bonner, 302 F.3d 776, 785 (7th Cir. 2002) (“[O]ne may not contradict for the sake of contradiction; the evidence must have an independent purpose and an independent ground for admission.”) (quotation marks omitted)).

The circuit noted that the challenged evidence may have been waived:

The Supreme Court has held that criminal defendants who introduce evidence of their own prior convictions in an effort to remove the “sting” forgo the right to appeal the trial court’s decision to admit those convictions into evidence. Ohler v. United States, 529 U.S. 753, 758 (2000). The Court held that by introducing the evidence first, the defendant adopts a concerted trial strategy to minimize the prejudicial effect of the evidence and in so doing waives the right to appeal the court’s ruling that the evidence may be admitted at trial. Id.; see also United States v. Saunders, 359 F.3d 874, 877-78 (7th Cir. 2004) (in criminal case, “the principle animating Ohler applies notwithstanding any possible error in the district court's evidentiary ruling”).

It was an open issue in the Seventh Circuit “whether the Ohler principle applies in civil cases.” The circuit was persuaded that the rationale should apply ”with equal force in both criminal and civil cases. The tactical nature of each party’s decisions is the same; indeed, the stakes are higher in a criminal case, and still the Supreme Court found waiver. “ Clarett, _ F.3d at _. Finally, the opinion noted that “every circuit to have addressed the question has applied Ohler in civil cases,” citing:

• Third Circuit: Estate of Smith v. City of Wilmington, 317 F. App’x 237, 239 n.1 (3d Cir. 2009) (concluding that the “plaintiffs waived their right to challenge ... ruling when they called Officer Whitehead in their case-in-chief and questioned him about the attempted carjacking.”) (citing Ohler v. United States, 529 U.S. 753, 755 (2000); see also Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 904 (8th Cir. 2006) (extending this principle to evidence in a civil trial))
• Sixth Circuit: Ludwig v. Norfolk So. Ry. Co., 50 F. App’x 743, 751 (6th Cir. 2002) (plaintiffs waived their right to challenge this ruling when they called Officer Whitehead in their case-in-chief and questioned him about the attempted carjacking)
• Eighth Circuit: Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 904 (8th Cir. 2006) (a civil litigant should not be allowed to “avoid the consequence of its own trial tactic by arguing it was forced to introduce the evidence . . . to diminish the prejudice”)
• Ninth Circuit: Bowoto v. Chevron Corp., 621 F.3d 1116, 1130 (9th Cir. 2010) (“Plaintiffs opened the door to evidence of the tug kidnapping incident”)