EvidenceProf Blog

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

Tuesday, September 27, 2011

A Civil Action: 7th Circuit Finds Ohler Preservation Rule Applies In Civil As Well As Criminal Cases

When a court authorizes the impeachment of a criminal defendant, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's impeachment ruling by using such a technique.  So, does the same hold with prior convictions of a plaintiff in a civil trial? According to the recent opinion of the Seventh Circuit in Clarett v. Roberts, 2011 WL 4424790 (7th Cir. 2011), the answer is "yes."

In Roberts,

Police officers went to Patricia Clarett's home in Lansing, Illinois, early one morning to question her sons about a burglary that had occurred overnight in nearby Lynwood, Illinois. A confrontation ensued and escalated quickly. One of the officers Tasered Clarett three times, and the officers arrested her for obstruction and resisting arrest. Those charges were subsequently dropped, and Clarett sued the officers under 42 U.S.C. § 1983 alleging use of excessive force and false arrest in violation of the Fourth Amendment, and various state-law claims.

Before trial, the district court entered a ruling in limine that two of Clarett's criminal convictions—for misdemeanor retail theft and obstructing a police officer—could be admitted at trial in the event that she testified. Thereafter, Clarett's attorney questioned Clarett about her convictions on direct examination.

After the jury returned a verdict for the officers, Clarett appealed, claiming, inter alia, that the district court erred in deeming the convictions admissible to impeach her. In response, the Seventh Circuit initially noted that "[w]e have never addressed whether the Ohler principle applies in civil cases." It then acknowledged Clarett's argument "against applying Ohler in the civil context, noting that criminal defendants have the right not to testify in their defense, while civil plaintiffs generally must do so in order to prove their claim."

That said, the court rejected the argument, concluding that

This distinction is immaterial in light of Ohler's reasoning. The Court noted that even after a criminal defendant chooses to take the stand, she "has a further choice to make.... The defendant must choose whether to introduce the conviction on direct examination and remove the sting or to take her chances with the prosecutor's possible elicitation of the conviction on cross-examination."...The same choice is present in civil cases....

The logic of Ohler applies 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. We note that every circuit [the 3rd, 6th, 8th, and 9th] to have addressed the question has applied Ohler in civil cases.



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