§ 6.06 UNITED STATES

• Jurisdiction: North Carolina

§ 6.06. "DRAWING THE STING": OHLER v. UNITED states

A common trial tactic, known as "drawing the sting," involves bringing out adverse information during direct examination if counsel knows that it will be introduced by the opponent during cross-examination. This tactic is designed to reduce the impact of the adverse evidence on the jury; acknowledgment of such evidence on direct examination makes counsel appear more forthright, and preemptive disclosure is better than providing the cross-examiner with a dramatic opportunity to introduce it.

In Ohler v. United States,⁶⁵ the Supreme Court put a high price on this tactic. In that case, the prosecution filed a motion in limine seeking to use the defendant's prior conviction for impeachment. The district court ruled that, if the defendant testified, her prior conviction would be admissible to impeach her under Rule 609(a). The defendant testified and, during direct examination, acknowledged her prior conviction. On appeal, the defendant argued that the trial court erred in allowing the prior conviction to be used for impeachment. The Supreme Court began its opinion with the observation that, "[g]enerally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted."⁶⁶ The Court found that Rule 103 did not change this result: "The Rule does not purport to determine when a party waives a prior objection, and it is silent with respect to the effect of introducing evidence on direct examination, and later assigning its admission as error on appeal."⁶⁷ The Court also noted that "both the Government and the defendant in a criminal trial must make choices as the trial progresses," and one example is that "[t]he defendant must choose whether to introduce the conviction on direct examination and remove the sting or take her chances with the prosecutor's possible elicitation of the conviction on cross-examination."⁶⁸ Moreover, any possible harm flowing from a district court's in limine ruling is speculative until "the Government exercises its option to elicit the testimony."⁶⁹ Some states have rejected Ohler as a matter of state evidence law.⁷⁰

As noted above, the Supreme Court stated that the prosecution also must make choices, i.e., whether or not to introduce a certain item of evidence. However, unlike the defense, the prosecutor must consider two critical factors. First, the prosecution carries a very high burden of proof and, in most jurisdictions, must obtain a unanimous...