October 26, 2020 Trial Tactics

Avoiding Hypothetical Rulings

Stephen A. Saltzburg

In Luce v. United States, 469 U.S. 38 (1984), a unanimous Supreme Court ruled that a defendant in a criminal case who objects to being impeached with a prior conviction must take the stand and actually be impeached in order to preserve a claim of error with respect to a trial judge’s admission of the prior conviction.

Luce was indicted on charges of conspiracy and possession of cocaine with intent to distribute. He moved in limine for a ruling to preclude the government from using a 1974 state conviction to impeach him if he testified. Luce made no commitment to testify if his motion were granted, and he made no proffer to the trial judge as to what his testimony would be. In opposing the motion, the government represented that the conviction was for a serious crime—possession of a controlled substance. The judge ruled that the prior conviction fell within the category of permissible impeachment evidence under Fed. R. Evid. 609(a) but stated that the nature and scope of Luce’s trial testimony could affect the court’s specific evidentiary rulings. The judge indicated a willingness to exclude the prior conviction if Luce limited his testimony to explaining his attempt to flee from the arresting officers, but also indicated that the prior conviction could be used to impeach Luce if he took the stand and denied any prior involvement with drugs. Luce did not testify, and the jury returned guilty verdicts.

The US Court of Appeals for the Sixth Circuit affirmed Luce’s conviction. United States v. Luce, 713 F.2d 1236 (6th Cir. 1983). The court of appeals, taking a different position from that taken by some other federal appellate courts, refused even to consider Luce’s contention that the trial judge abused discretion in denying the motion in limine without making an explicit ruling that the probative value of the prior conviction outweighed its prejudicial effect. The court held that it would not review an in limine ruling regarding permissible impeachment of a defendant when the defendant did not testify.

The Supreme Court agreed with the Sixth Circuit. In an opinion by Chief Justice Burger, the Court reasoned as follows:

A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify.

Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner’s credibility at trial by means of the prior conviction.

When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.

Because an accused’s decision whether to testify “seldom turns on the resolution of one factor,” New Jersey v. Portash, 440 U.S. 450, 467 (1979) (Blackmun, J., dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it.

Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. See generally United States v. Hasting, 461 U.S. 499 (1983). Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to “plant” reversible error in the event of conviction.

Luce, 469 U.S. at 41–42.

Both before and after the decision in Luce, federal trial judges could choose not to rule on an in limine motion on an issue that might disappear when the trial unfolds. There are good reasons why trial judges might hesitate to rule on certain issues before they are confident that these issues must be faced.

An Illustrative Case

United States v. Hall, 945 F.3d 507 (D.C. Cir. 2019), illustrates why a judge reasonably might be concerned about making a ruling before it is clear exactly what evidence will be presented. Hall is an unusual case because the court’s original opinion was issued in 2010. United States v. Hall, 613 F.3d 249 (D.C. Cir. 2010). The 2019 opinion was reissued in response to Hall’s unopposed request to amend the prior opinion in three respects and to remand the case for resentencing.

Charles Hall worked as a loan officer at a mortgage company, Guaranty Residential Lending (GRL), from April 2002 until May 2003. He became involved in a scheme with six other people to “flip” numerous residential properties in Washington, DC. The scheme operated by having coconspirator Alan Davis buy homes in disrepair. Hall would then find straw buyers to purchase the homes from Davis. But prior to the sales, coconspirator Robbie Colwell, a sham appraiser, would appraise the homes as if they had been renovated. The higher (false) appraisals were then sent to GRL and another mortgage company, National City Mortgage Company (NCM) to obtain financing that was facilitated by coconspirators Susan Shelton and Marcus Wiseman, underwriters at GRL and later NCM.

The sixth coconspirator was Vicki Robinson, the settlement agent for the property sales, who worked for Vanguard Title, a settlement company owned by attorney Marc Sliffman. Robinson would distribute a portion of the funds to Hall, whose job it was to convert the money into cashier’s checks that the straw buyer would bring to settlement as a down payment.

Hall received loan proceeds at settlement. They were identified on settlement documents as reimbursement for “rehab construction,” but such construction was rarely done, as Hall pocketed the money. Most of the properties later went into foreclosure, with a resulting loss to GRL and NCM of over $5 million.

Hall was charged with conspiracy, bank fraud, wire fraud, and money laundering. His coconspirators testified against Hall after they pled guilty. A jury found Hall guilty on all counts, and he was sentenced concurrently to 293 months on each of the bank fraud and money laundering charges, and 60 months on each of the remaining charges.

The Trial Judge’s Ruling

Hall argued on appeal that the trial judge erred in refusing to allow evidence in support of his principal defense. His complaint focused on the fact that his attorney attempted to cross-examine the coconspirators who testified for the government to elicit testimony that attorney Marc Sliffman, the owner of Vanguard Title, had told the conspirators that the mortgage scheme was lawful. The government objected to the cross-examination, and the trial judge sustained the objection. Hall’s argument was that the judge’s ruling prevented him from showing that he had reason to believe he was acting lawfully and therefore lacked the specific intent to commit the charged crimes.

Hall argued to the court of appeals that, at the time of the attempted cross-examination, Hall intended to prove as his primary defense that he believed that all of his conduct was legal because of statements made to him and his coconspirators by attorney Sliffman. He further argued that the cross-examination, if permitted, would have corroborated his own direct testimony that he offered during the defense case later in the trial.

The government’s argument in response was that the coconspirator’s testimony was inadmissible hearsay, which was the ground for its trial court objection. The court of appeals had no way of knowing whether a hearsay concern underlay the trial judge’s ruling barring the cross-examination because the judge did not specifically state a reason for the ruling. But the court had no difficulty rejecting the government’s argument.

The court observed that hearsay is a statement made out of court that is “offered in evidence to prove the truth of the matter asserted,” Fed. R. Evid. 801(c), and concluded that Hall had not attempted to elicit testimony about Sliffman’s statements to prove that they were true. Instead, Hall sought to elicit the testimony to show that Sliffman, a lawyer, had told the conspirators that their conduct was legal and that Hall had reason to trust Sliffman’s advice and to believe that the conduct was legal.

Having found that the government’s hearsay objection was invalid and being unable to be sure whether it was that objection that caused the trial judge to exclude the testimony sought by the defense, the court nevertheless found that the trial judge’s ruling was not error. So what explains this finding?

The Court’s Analysis

Although the court did not cite Fed. R. Evid.104(b) (often referred to as “conditional relevance”), its analysis was actually grounded in the principle set forth in that Rule:

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

The court observed that in United States v. Hemphill, 514 F.3d 1350, 1360 (D.C. Cir. 2008), it wrote that although the right to cross-examination was “an important component of the right of confrontation,” the trial court nevertheless “retains broad discretion to control cross-examination.” In that case, the court specifically noted that the trial court “may prevent questioning that does not meet the basic requirement of relevancy, as well as other factors affecting admissibility.” Id. (internal quotations and citation omitted). The court concluded that at the time Hall’s attorney sought to cross-examine the coconspirators, it was not yet clear that Hall could demonstrate relevance.

This is the core of the court’s reasoning:

Testimony as to whether attorney Sliffman had told Hall that the transactions were legal did not make any fact then within the consideration of the court or jury either more or less probable than it would have been without the testimony. When questioned on this subject at oral argument, defense counsel stated, consistent with the trial record, that the evidence was offered to corroborate testimony that the defense expected to offer during its case in chief. As it developed, perhaps the disputed testimony may have been relevant after the defense made such an introduction in its case in chief. However, at the time the district court made its ruling, no such testimony was before it.

Hall, 613 F.3d at 257. In other words, Rule 104(b) provides that “[t]he court may admit the proposed evidence on the condition that the proof be introduced later,” but the crucial word is may. A trial judge is empowered not to admit evidence item A before it is clear that there is sufficient additional evidence of item B to demonstrate the relevance of item A. So, in Hall’s case, evidence corroborating testimony he might give as to his reliance on Sliffman’s statements was not demonstrably relevant until Hall testified and the trial judge knew what his defense actually was.

Does It Matter?

The court of appeals does not suggest that the trial judge could not have permitted defense counsel to cross-examine the coconspirators about Sliffman’s statements, and it really could not make such a suggestion given the second sentence of Rule 104(b). So the trial judge had discretion to permit the cross-examination or to require the coconspirators to be recalled to corroborate Hall only after he testified.

Is there a good reason for a trial judge to delay the examination of the coconspirators? The court of appeals said “yes” and explained:

While it is true, as appellant argues on appeal, that trial courts from time to time may admit evidence that is not yet relevant subject to its being stricken should its relevance not be shown later, we can hardly say that the district court abused its discretion by refusing to admit evidence that was not then relevant. This is especially true in the case at bar. The defense proffer is based on the theory that the evidence would corroborate testimony to be given later by the defendant. The choice of whether to testify is a personal right of the defendant. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). If the evidence were admitted subject to being stricken, and the defendant did not testify or testified inconsistently with the disputed testimony, then the judge’s act in ordering it stricken might well call to the jury’s attention in an arguably impermissible manner the fact that the defendant had exercised his rights against self incrimination. See generally Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (explaining that commenting on a defendant’s failure to testify violates the Fifth Amendment). We are not deciding that it would have been error for the judge to run that risk, but it certainly was not error for him to refuse to do so. In short, we conclude that the district court’s sustaining of the government’s objection was not an abuse of discretion.

Hall, 613 F.3d at 257.


Luce and Hall have something in common. In both cases, the trial judge could not be certain at the time a ruling was requested how the trial would unfold. The judge could not know in Luce whether Luce would testify, if he testified how he would perform, and if he testified whether and how the government would seek to impeach him. In Hall, the judge could not be certain that Hall would take the stand and, if he did, what he would claim by way of defense. Impeachment in Luce was irrelevant if Luce did not testify. And corroboration in Hall of Hall’s testimony was also irrelevant if Hall did not take stand and claim to have relied on the statements by Sliffman that defense counsel sought to elicit earlier in the trial during cross-examination. The danger that would have arisen if the trial judge in Hall had permitted cross-examination of coconspirators as to Sliffman’s statements is that, if Hall chose not to testify, the judge might have felt compelled upon a government motion to strike the cross-examination of the coconspirators. This, the court of appeals pointed out, might well have called the jury’s attention to the fact that the defendant did not take the stand. Once Hall testified, his attorney was free to elicit testimony from coconspirators corroborating Hall’s testimony about Sliffman’s advice.


Stephen A. Saltzburg


Stephen A. Saltzburg is the Wallace and Beverley University Professor at The George Washington University Law School.