concluding that any possible harm from the trial court's ruling was speculative because the defendant did not testify; rejecting the argument made on appeal that the defendant would have testified had he been able to do so free from impeachment with prior convictions and noting, "Because an accused's decision whether to testify `seldom turns on the resolution of one factor,' a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify"
How later courts described this case
- concluding that any possible harm from the trial court's ruling was speculative because the defendant did not testify; rejecting the argument made on appeal that the defendant would have testified had he been able to do so free from impeachment with prior convictions and noting, "Because an accused's decision whether to testify `seldom turns on the resolution of one factor,' a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify"
- explaining that a ruling in limine “is subject to change 22 when the case unfolds, particularly if the actual testimony differs from what was contained in the 23 24 1 Plaintiff also asserted a breach of contract claim, which the Court dismissed on summary judgment. Dkt. No. 64. 1 … proffer” and that “even if nothing unexpected happens at trial, the district judge is free, in the 2 exercise of sound judicial discretion, to alter a previous in limine ruling”
- holding that “a defendant who did not testify at trial was not entitled to a review of the trial court’s denial of a motion in limine seeking to exclude his prior convictions,” because “any possible harm flowing from the trial court’s denial of a motion in limine to bar impeachment by a prior conviction is wholly speculative absent the defendant’s testimony and the prosecution’s attempt to impeach the defendant through use of the prior convictions”
- explaining that a ruling in limine “is subject to change 14 when the case unfolds, particularly if the actual testimony differs from what was contained in the 15 proffer” and that “even if nothing unexpected happens at trial, the district judge is free, in the 16 exercise of sound judicial discretion, to alter a previous in limine ruling”
Written by the judges who cited it.
Later courts went against this
Declined to follow by People v. Moore, 156 A.D.2d 394 (1989)
We decline to adopt the holding of the United States Supreme Court in Luce v United States (469 US 38), which, applying Federal Rules of Evidence, rule 609 (a), held that a defendant must testify in order to preserve for appellate review a claim of improper impeachment with a prior conviction.
Distinguished
Distinguished by Dallas v. State, 413 Md. 569 (2010)
Although we reject Petitioner’s contention that his claim is one of constitutional dimension, we agree with him that his claim involves concerns sufficiently different from the claims in Luce and Jordan.
Distinguished by People v. Boyd, 470 Mich. 363 (2004)
Moreover, although four justices dissented, concluding that Luce was inapplicable because the defendant had testified and thus the harm was not “wholly speculative,” Luce, supra at 41, those justices also appeared implicitly to recognize the importance of Luce-.
Distinguished by Butler v. United States, 1996 D.C. App. LEXIS 285 (1996)
Butler argues that Luce is inapplicable because “the disputed issue [in Butler’s case] was fully litigated pretrial” and covers thirty-eight pages of the transcripts.
Distinguished by People v. Contreras, 108 A.D.2d 627 (1985)
) Luce v United States (469 US_, 105 S Ct 460), upon which the dissent relies, is inapposite, since it interprets Federal law.
The opinion
Justice Brennan,
with whom Justice Marshall joins,
concurring.
I join the opinion of the Court because I understand it to hold only that a defendant who does not testify at trial may not challenge on appeal an in limine ruling respecting admission of a prior conviction for purposes of impeachment under Rule 609(a) of the Federal Rules of Evidence. The Court correctly identifies two reasons for precluding appellate review unless the defendant testifies at trial. The careful weighing of probative value and prejudicial effect that Rule 609(a) requires of a district court can only be evaluated adequately on appeal in the specific factual context of a trial as it has unfolded. And if the defendant declines to testify, the reviewing court is handicapped in making the required harmless-error determination should the district court’s in limine ruling prove to have been incorrect.
*44 I do not understand the Court to be deciding broader questions of appealability vel non of in limine rulings that do not involve Rule 609(a). In particular, I do not read the Court’s quotation of Justice Powell’s concurring opinion in New Jersey v. Portash, 440 U. S. 450, 462 (1979), see ante, at 48, as intimating a determination with respect to a federal court’s in limine ruling concerning the constitutionality of admitting immunized testimony for impeachment purposes. In that case, and others in which the determinative question turns on legal and not factual considerations, a requirement that the defendant actually testify at trial to preserve the admissibility issue for appeal might not necessarily be appropriate. The appellate court’s need to frame the question in a concrete factual context would be less acute, and the calculus of interests correspondingly different, than in the Rule 609(a) case the Court decides today.