FRE 404(b) and FRE 106
Column on Seegars v. Ashcroft

Fifth Amendment and Erroneous 106 Rulings

In Paladino, the trial court properly allowed the government to admit Paladino's prior deposition testimony.  However, the government cropped the testimony so that it appeared that Paladino admitted to committing a crime.  The Seventh Circuit held that the trial court erred in admitting this misrepresented deposition testimony.  See post below

Paladino testified, though, because the misrepresented and misquoted deposition testimony sunk him.  Thus, Paladino had a classic Hobson's choice -- Let the misrepresented testimony go unchallenged, or take the stand. 

Was his Fifth Amendment protection against being compelled to testify violated?  No.  Wrote Judge Posner:

[T]he Supreme Court has held that there is no compulsion in such a case, since the defendant has the option of refusing to testify and instead, if he is convicted, of obtaining appellate correction of the erroneous evidentiary ruling and with it a new trial.  The specific evidentiary error in Luce was improper impeachment with a prior conviction, but the principle is the same: [In Luce the Court wrote] “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify, for “claim of improper impeachment with a prior conviction” read “claim of violation of Rule 106.”

Paladino at *8 (citations omitted).  Ouch.  Judge Posner recognized

This rule puts the defendant to a hard tactical choice.  But  the alternative would be to give him two bites at the apple: testify, and try to win an acquittal; if that fails, appeal and get a new trial on the basis of the judge’s ruling.  The Supreme Court prefers the first of these unsatisfactory resolutions to the second, and we are bound.


UPDATE [3/28/2005]:  More Luce madness.  Today the Eighth Circuit wrote in United States v. Mooney:

Mooney also argues that the district court abused its discretion by denying his
motion in limine. Before trial he asked the court to rule that his 1986 state tax
conviction could not be used to impeach him if he were to testify. The court's denial
of the motion caused him not to testify he says, because he feared he would be
prejudiced by mention of his conviction in front of the jury. A trial court's
evidentiary rulings are generally reviewed for abuse of discretion, see, e.g., United
States v. King, 351 F.3d 859, 864 (8th Cir. 2003), but Mooney's issue is unreviewable
because he did not testify. See Luce v. United States, 469 U.S. 38, 43 (1984).