EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, August 14, 2011

Self Preservation Instinct: 3rd Circuit Finds Defendant's Failure To Testify Precludes Review Of Cross-X Ruling

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant under Federal Rule of Evidence 609 through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. Meanwhile, Federal Rule of Evidence 611(b) states generally that

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

So, let's say that a defendant files a motion in limine before trial, seeking generally to restrict the scope of the prosecution's cross-examination of him in the event that he testifies at trial. If the court denies that motion, and the defendant thereafter declines to testify, is his appeal foreclosed by the logic of Luce? According to the recent opinion of the Third Circuit in United States v. Ferrer, 2011 WL 3468319 (3rd Cir. 2011), the answer is "yes."

In Ferrer, Ramon Ferrer was convicted, along with two of his three co-defendants, of (i) attempt and conspiracy to distribute or to possess with intent to distribute more than 500 grams of methamphetamine and (ii) interstate travel in facilitation of attempted drug trafficking.

The gist of the criminal conduct was a plot to transport 23 pounds of methamphetamine from Georgia to Pennsylvania for sale to one Antonio Pagan, who turned out to be a government informant. Although the substance delivered to the informant initially field-tested positive for methamphetamine, later lab tests revealed that it in fact contained no narcotics.

After he was convicted, Ferrer appealed, claiming, inter alia

that the District Court should not have denied his motion in limine to restrict the scope of his cross-examination. Ferrer says that he would have liked to testify at trial, but that he was dissuaded from doing so by the possibility that the prosecution would use the opportunity to cross-examine him about issues outside the subject matter about which he would have testified.

But according to the Third Circuit,

Unfortunately for Ferrer, his decision not to testify precludes us from reviewing the District Court's ruling. In Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that denial of a motion in limine under Fed.R.Evid. 609(a) was not reviewable where the defendant did not testify. The Court noted that a court cannot assess the balance of probative value against prejudicial effect without knowing the precise content of the testimony in question. In addition, any harm resulting from denial of the motion is speculative: an in limine ruling may be altered; the government might decide not to use the evidence that was the subject of the motion after all; and the defendant's decision not to testify might actually have been motivated by something other than the motion's denial. Moreover, there is no way to assess whether an error is harmless if its effect on the defendant's case is not known, and a rule allowing review where the defendant did not testify would allow him to "plant" error in a trial by making dubious motions and then declining to testify

The Third Circuit did acknowledge that Luce merely dealt with the issue of preservation in the Rule 609 context, but it held that "[e]ach of these rationales is equally applicable to a motion under Rule 611(b), and our sister circuits have extended Luce beyond the Rule 609(a) context." Accordingly, the court concluded there was "no reason why Luce should not control" and refused to "entertain [Ferrer's] appeal of the District Court's denial of his motion in limine." 



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