Prior Conviction Testimony Stands

Monday, May 22nd 2000, 12:00 am

By: News On 6

WASHINGTON (AP) â€” Criminal defendants who beat federal prosecutors to the punch by telling jurors about their previous convictions cannot later appeal the judge's decision to let the jury hear about the prior crimes, a deeply divided Supreme Court ruled today.

Prosecutors often seek permission to cross-examine defendants about prior crimes to discredit their trial testimony. When a judge issues a pretrial order allowing such tactics, defendants usually opt to tell the jury themselves so they do not seem to be hiding something.

The court, by a 5-4 vote, said federal defendants who choose to acknowledge those crimes always waive the right to appeal the judge's decision.

Federal appeals courts had split on that issue.

Today's ruling leaves some defendants with a tough choice: Give up the right to testify in their own behalf so the jury does not learn about earlier convictions or let prosecutors tell the jury and appeal the use of that evidence if they are convicted.

``In our view, there is nothing unfair ... about putting (a defendant) to her choice in accordance with the normal rules of trial,'' Chief Justice William H. Rehnquist wrote for the court.

``A defendant who pre-emptively introduces evidence may not on appeal claim that the admission of such evidence was error,'' he said.

Trial judges have the authority to decide whether defendants' prior convictions will be allowed as trial evidence to cast doubt on the credibility of their testimony. Such evidence is admitted only if a judge determines its relevance exceeds the unfair prejudice among jurors that may result.

Today's decision in a California case upheld a woman's drug conviction and 30-month prison sentence.

Maria Suzuki Ohler was stopped by U.S. Customs agents when she tried to enter the country from Mexico at San Ysidro, Calif., in July 1997. An agent noticed an interior panel of her van had been tampered with, and found more than 80 pounds of marijuana inside.

Prosecutors sought and obtained a judge's permission to attack Ohler's credibility, if she testified, by introducing evidence of her 1993 felony conviction for possession of methamphetamine.

When Ohler took the stand, she told the jury about the 1993 conviction.

She then appealed her conviction, contending that the judge should not have allowed the prior-conviction evidence. The 9th U.S. Circuit Court of Appeals ruled that Ohler had waived her right to pursue such an appeal.

Joining Rehnquist's opinion were Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Joined in dissent were the court's four more liberal justices â€” David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.

Writing for the four, Souter said the decision ``is without support in precedent, the rules of evidence or the reasonable objectives of trial.''

The court in 1984 ruled that federal defendants who choose not to testify rather than have prosecutors introduce prior convictions to attack their credibility cannot appeal the trial judge's decision to let in such evidence.

That decision said only defendants who actually testify and have their credibility challenged by the prior-conviction evidence can appeal.

Ohler's lawyer said she chose to testify, and mentioned the prior convictions herself to ``remove the sting of imminent cross-examination.''

The case is Ohler vs. U.S., 98-9828.

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On the Net: For the decision: http://supct.law.cornell.edu/supct/ Click on ``this month's decisions'' or http://www.supremecourtus.gov