§ 6.05 UNITED STATES

• Jurisdiction: United States

§ 6.05. REQUIRED TESTIMONY: LUCE v. UNITED STATES

The Supreme Court engrafted an additional requirement onto Rule 103. In Luce v. United States,⁵⁸ a drug defendant moved in limine to prevent the prosecution from using his prior conviction to impeach him under Rule 609(a).⁵⁹ The trial court denied the motion but indicated that the content of Luce's trial testimony might affect its ruling. Luce, who did not testify at trial, was convicted. On appeal, the Supreme Court ruled that Luce had not preserved the issue for appeal because he had failed to testify.⁶⁰

The Court gave two reasons for its ruling. First, Rule 609(a) requires the trial court to balance the probative value of the prior conviction for impeachment purposes against its prejudicial effect. Such an evaluation, in the Court's view, is impossible without knowing the precise nature of a defendant's testimony. Second, if the trial court's decision to admit the evidence is erroneous, an appellate court is handicapped in making the required harmless error determination without knowing the nature of the defendant's testimony.⁶¹ Consequently, if the motion in limine is denied, the defendant must testify (and be impeached with the prior conviction) to preserve the issue for appeal.⁶²

While some courts have extended the Luce requirement to evidentiary objections other than those based on Rule 609,⁶³ some state courts have rejected Luce's rationale as a matter of state evidence law.⁶⁴

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Notes:

^[58] 469 U.S. 38 (1984).

^[59] Impeachment by prior conviction is one type of untruthful character impeachment. See infra § 22.08 (discussing prior conviction).

^[60] 469 U.S. at 43 ("We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.").

^[61] See infra § 6.12 (discussing harmless error).

^[62] The federal drafters made clear that the 2000 amendment to Rule 103 does not affect the rule in Luce. See Fed. R. Evid. 103 advisory committee's note (2000) ("Nothing in this amendment is intended to affect the rule set forth in Luce v. United States . . . and its progeny. The amendment provides that an objection or offer of proof need not be renewed to preserve a claim of error with respect to a definitive pretrial ruling. Luce answers affirmatively a separate question: whether a criminal defendant must testify at trial in order to preserve a claim of error predicated upon a trial court's decision to admit the defendant's prior conviction for...