Appellate Review of in Limine Rulings

Full title: Appellate Review of In Limine Rulings

Court: Judicial Panel on Multidistrict Litigation

Date published: Jan 1, 1999

182 F.R.D. 666 (J.P.M.L. 1999)

Opinion

1999

Appellate Review of In Limine Rulings James Joseph Duane ^_

_ Associate Professor of Law, Regent University Law School, Virginia Beach, Virginia; J.D., Harvard Law School, 1984; A.B., Harvard College, 1981. Professor Duane is also on the faculty of the annual Trial Advocacy Institute at the University of Virginia School of Law. Copyright (c) 1998, James J. Duane (jamedua@regent.edu). The author is grateful to Mr. Paul Kugelman, Jr. for his valuable research assistance.

In August of this year, the United States Judicial Conference published several proposed amendments to the Federal Rules of Evidence. One of the proposals would add two new sentences to Evidence Rule 103(a), which concerns the requirements for preservation of error in evidentiary rulings.¹ The amendment would remedy a glaring and unfortunate deficiency in the current rule. The problem is that Rule 103 does not directly speak to the extremely common situation where a party desires to complain on appeal about an adverse ruling on a motion in limine; that is, a ruling made at some point before the controversial evidence is or would have been offered at trial. Such rulings usually, but not always, take place before the trial begins.²

1 COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE AND EVIDENCE, 181 F.R.D. 18, 133-38 (Aug. 1998) [hereinafter cited as "PROPOSED AMENDMENT TO RULE 103(a)."]

2 In limine means "[o]n or at the threshold; at the very beginning; preliminarily." BLACK'S LAW DICTIONARY 708 (5th ed. 1979). The Supreme Court has defined the term "in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered," Luce v. United States, 469 U.S. 38, 40 n. 2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), although of course it would also include a pretrial motion to admit evidence, which parties are sometimes required to make. E.g., FED. R. EVID. 412(c).

This article addresses both sentences that the Advisory Committee proposes to add to Rule 103(a). I shall refer to them as the "two new rules." For the reasons set forth below, I contend that the first new rule is an excellent proposal — but not because of the reasons given by the Committee in its support. I also explain how a correction to the supporting Advisory Committee Note would give much better and more accurate guidance to lawyers, and make that new rule less likely to trap the unwary. The second new rule, on the other hand, is just a bad idea that ought to be seriously reconsidered.

This article was written and published with three audiences in mind. It is first and foremost for the review of the Advisory Committee, before which I testified at a public hearing on October 22, 1998, in Washington, D.C. In fact, with the exception of the paragraph you are now reading, this article is almost identical to the written comments I submitted to the Committee prior to my testimony.³ But that motivation alone obviously does not account for the length of these observations or the fact that I have chosen to publish them. I am writing also in the hope that some of these remarks may be of use to the judges and lawyers charged with the implementation of the proposed amendment if it goes into effect, as well as the many state appellate courts that continue to grapple with the same challenges for their own judicial systems. It was primarily for the benefit of those audiences, and not the Advisory Committee, that I elected to publish this work, and to explain my views in such extensive detail.

3 The only significant amendments to this published version of my remarks include a number of citations throughout the paper to the most recent decision by the Seventh Circuit Court of Appeals on this subject, in a case that was decided only a few weeks ago. Wilson v. Williams, 161 F.3d 1078 (7th Cir. Nov. 30, 1998).

I. THE FIRST PROPOSED NEW RULE: THE RIGHT RULE, BUT FOR THE WRONG REASON A. The New Rule and What it Would Change

The first of the two new rules would address a situation that occurs with great frequency. Imagine that at some point before or during a trial, a party moves for a ruling on the admissibility of evidence that has not yet been offered. Assume further that the judge has considered the motion and has made a ruling that is definitive, explicit, and unambiguous. (Throughout this Article, for the sake of brevity, I shall assume that we are not discussing a pretrial ruling that is provisional or tentative. Such rulings — just like tentative "rulings" made during a trial — do not preserve a claim of error for appeal. That is the law in every Circuit, and the Advisory Committee's proposal would not change that rule.⁴) If the losing party believes this definitive ruling was erroneous and presents possible grounds for a later appeal, should that party be required to renew its objection or offer of proof during the trial, thus possibly irritating the judge and jurors, or should it be entitled to rely on that in limine ruling as a sufficient basis for preserving its claims for appeal?

4 COMMITTEE NOTE TO PROPOSED AMENDMENT TO RULE 103(a), 181 F.R.D. 18, at 135-36 (hereafter "PROPOSED ADVISORY COMMITTEE NOTE"). See also United States v. Reyes, 157 F.3d 949, 954 n. 1 (2d Cir. 1998) (no claim of error preserved by pretrial motion, because the trial judge did not rule upon it "without equivocation"). Of course, parties and judges are sometimes drawn into difficult and close decisions on whether a ruling is indeed tentative or provisional. E.g., Jom, Inc. v. Adell Plastics, Inc., 151 F.3d 15, 20 n. 3 (1st Cir. 1998) (forgiving appellant for not renewing objection where some language in trial court order sounded sufficiently final "that it could reasonably have misled the party"); Walden v. Georgia-Pacific Corp., 126 F.3d 506, 516-20 (3d Cir. 1997) ("Although the district court told plaintiff's counsel not to reargue every ruling, it did not countermand its clear opening statement that all of its rulings were tentative, and counsel never requested clarification, as it might have done."); Scott v. Ross, 140 F.3d 1275, 1285 (9th Cir. 1998); Jenkins v. Keating, 147 F.3d 577, 580-82 (7th Cir. 1998).

In a commendable effort to resolve a striking degree of disparity among the Circuits, the Advisory Committee has recommended that renewal of the argument at trial should not be required as a condition to preserving the claim of error for appeal. The first of the two new rules the Committee proposes adding to Rule 103(a) would provide that: "Once the court, at or before trial, makes a definitive ruling on the record admitting or excluding evidence, a party need not renew an objection or offer of proof to preserve a claim of error for appeal."⁵

5 PROPOSED AMENDMENT TO RULE 103(a), 181 F.R.D. at 134.

My comment on this rule is admittedly a most unusual one. I am convinced that the rule is an excellent proposal, and exactly the right response to a situation that is desperately in need of clarity and reform. Indeed, I believe that the adoption of that rule would be the single most salutary and important improvement in the Federal Rules of Evidence in many years. But the reasons given for this rule by the Committee in its proposed Advisory Committee Notes are unpersuasive, partially false, misleading, and would create a potential trap for unwary litigants.

As the Committee correctly notes, current law on this topic is anything but uniform.⁶ Indeed, the need for reform is even more pressing than the Committee indicated. The worst problem is not merely that the Circuits have adopted at least five different answers to this question, although that would have been enough reason for the adoption of a uniform standard. Federal procedural uniformity across the nation is generally a desirable result, even if only because it leaves attorneys less likely to be misled in unfamiliar settings. But the worst feature of current law is that many Circuits have, in very different ways, adopted nebulous standards that leave even the most sophisticated attorneys guessing whether their own Court of Appeals will deem their appellate claims to have been preserved.

6 See PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 134-35.

You want examples? At least two Circuits say that a pretrial ruling is sufficient to preserve error only if (among other requirements) the Court of Appeals later concludes that the in limine ruling involves "the type of issue that can be finally decided in a pretrial hearing."⁷ The Third Circuit says renewal of a pretrial objection is unnecessary only if "the party filed a written pretrial motion setting forth reasons and case citations" in support of the objection so that "the district court was fully informed."⁸ In similar fashion, in the Ninth Circuit it depends whether the Court of Appeals can be persuaded that "the substance of the objection has been thoroughly explored during the hearing on the motion in limine."⁹ In another approach not noted by the Advisory Committee, one of the most nebulous of all, the Eleventh Circuit holds that a pretrial ruling is usually insufficient to preserve error, unless there is "some good reason for failing to object at trial."¹⁰ And the most bizarre state of affairs now prevails in the Seventh Circuit, where the answer to this pressing question depends, quite literally, on which judges end up being assigned to the panel that decides your appeal.¹¹

7 United States v. Timothy McVeigh, 153 F.3d 1166, 1200 (10th Cir. 1998) (quoting United States v. Mejia-Alarcon, 995 F.2d 982, 986-87 (10th Cir. 1993)); Rosenfeld v. Basquiat, 78 F.3d 84, 90 (2d Cir. 1996) (same). It appears that those two Circuits mean by this test whether the legal issue could be finally ruled upon pretrial in the opinion of the Court of Appeals, not the district judge, because both Circuits list this requirement as being in addition to a distinct requirement that the issue must have been "ruled upon without equivocation by the trial judge." Id. So apparently in those Circuits, a would-be appellant cannot breathe easy just because the district judge thought the issue was capable of accurate and final pretrial resolution. That seems to be the unambiguous implication of Mejia-Alarcon, which held that the district court's challenged pretrial ruling was "unequivocal," but nevertheless devoted close appellate scrutiny to the supposedly separate question whether the issue was fairly decided pretrial and whether the defendant "was therefore entitled to rely on the district court's ruling that the conviction was admissible." Mejia-Alarcon, 995 F.2d at 987.

8 Walden v. Georgia-Pacific Corp., 126 F.3d 506, 518-19 (3d Cir. 1997).

9 Scott v. Ross, 140 F.3d 1275, 1285 (9th Cir. 1998) (quoting Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986)).

10 Goulah v. Ford Motor Corp., 118 F.3d 1478, 1483 (11th Cir. 1997); accord Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir. 1997). Of course, one could make a plausible contention that every case presents at least one "good reason" to refrain from relitigating issues that have been decided pretrial, even if only to avoid causing "a needless provocation to the trial judge, not to mention a distracting interruption during the trial." United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir. 1993). There is always the grave danger that jurors might construe objections as an attempt to hide something important. RONALD CARLSON EDWARD IMWINKELRIED DYNAMICS OF TRIAL PRACTICE 106 (2d ed. 1995) ("The more often you object, the greater is the risk that you will alienate the jury; they may conclude that you are petty or trying to suppress the truth"). But the Eleventh Circuit has not taken that view, and is evidently content to leave litigants in the dark for now as to what such a "good reason" might look like.

11 Earlier this decade, that Court held that a pretrial ruling is insufficient to preserve a claim for appeal. United States v. York, 933 F.2d 1343, 1360 (7th Cir. 1991). A few years later, however, the Court announced a directly contrary rule, Favala v. Cumberland Engineering Co., 17 F.3d 987, 991 (7th Cir. 1994), citing without purporting to overrule York. As a result, the judges on that Court evidently now see themselves as being perfectly free to choose between two completely inconsistent lines of Circuit precedent. As recently as the summer of 1998, one panel of that Court (including the Chief Judge) cited and followed Favala for the proposition that a clear ruling on a motion in limine "is sufficient to preserve the issue for appeal." United States v. Madoch, 149 F.3d 596, 600 (7th Cir. 1998). Less than five months later, the majority of another panel (albeit a divided one) cited York as the law of the Circuit, and emphatically rejected Favala as poorly reasoned. Wilson v. Williams. 161 F.3d 1078, 1086-87 (7th Cir. Nov. 30, 1998). Indeed, Wilson went further than almost any reported federal opinion in adopting an extreme rule that requires renewal of an objection when evidence is offered, even if the same objection was overruled three hours earlier just before opening statements, and "even at the risk of incurring the displeasure of the trial court." Id. Curiously, however, that decision stopped short of declaring that Favala was overruled — all while refusing to follow it. The issue cries out for clarification by that court en banc. But until then, the Seventh Circuit has obviously become one of the many Circuits where conscientious trial counsel must plan on the assumption that anything can happen on appeal.

In those six Circuits, therefore, litigants who lose an argument on a motion in limine will never be able to predict with confidence whether they need to renew their legal positions at trial to preserve them for appeal. At the trial level, those amorphous rules operate precisely like a rule requiring every objection to be renewed at trial, because sensible trial counsel will never gamble on the unpredictable chance that they can satisfy the Court of Appeals that the point should be deemed preserved.¹² In at least those Circuits, the proposed amendment to Rule 103 will be a major change and improvement in the clarity of the law. Likewise, the new rule would represent a dramatic departure from the law in four other Circuits, which hold that even a definitive ruling on a motion in limine is never sufficient to preserve claims of error for appeal, so that the losing party must always renew its objection at trial.¹³ The Committee's proposed new rule will leave the law unchanged in at most two Circuits.¹⁴

12 That is the very reason why the Tenth Circuit has correctly warned that any prudent counsel in that circuit will virtually always renew their objections at trial. Mejia-Alarcon, 995 F.2d at 988. In practical terms, therefore, such unpredictable tests work at the trial level just like a strict rule requiring renewal in every case. Their only practical difference is the latitude they occasionally allow after the fact for appellate lawyers to seek review of an in limine ruling despite their always unwise and risky failure to renew the objection at trial.

13 United States v. Joost, 133 F.3d 125, 129 (1st Cir. 1998); Marceaux v. Conoco, Inc., 124 F.3d 730, 733-34 (5th Cir. 1997); Polk v. Yellow Freight System, Inc., 876 F.2d 527, 532 (6th Cir. 1989); United States v. Roenigk, 810 F.2d 809, 815 (8th Cir. 1987). The number of Courts adopting this strict rule rises to five if you also count the Seventh Circuit's most recent and emphatic ruling on the subject, Wilson v. Williams, 161 F.3d 1078 (7th Cir. Nov. 30, 1998), although that Circuit had previously been rather inconsistent. When I say, with a tiny bit of oversimplification, that these Circuits "always" require renewal of an unsuccessful motion in limine, I am not counting the First Circuit's peculiar exception for offers of proof, which need not be renewed after a judge has fairly considered and denied a motion to admit some evidence. Fusco v. General Motors Corp., 11 F.3d 259 (1st Cir. 1993). Nor am I counting the relatively extreme situation where the trial judge not only makes a definitive pretrial ruling on the motion, but also affirmatively indicates on the record that the ruling was sufficient to preserve the point for appeal, or that the losing party could have a continuing objection at trial. In those rare cases, the appellant will always be excused for relying on such explicit representations by the judge. E.g., Wilson v. Williams, 161 F.3d at 1087; United States v. Timothy McVeigh, 153 F.3d 1166, 1200-01 (10th Cir. 1998); Boyle v. Mannesmann Demag Corp., 991 F.2d 794, 1993 WL 113734, *1 (6th Cir. 1993) (unpublished disposition); United States v. Fortenberry, 919 F.2d 923, 924 (5th Cir. 1990). Fortunately, that line of authority will become moot if the Advisory Committee's proposed new rule is adopted-which is one more good reason to hope the proposal becomes law.

14 Apparently only the Fourth and D.C. Circuits observe a general rule that a definitive ruling on a motion in limine is sufficient to preserve a claim of error for appeal, although neither Circuit has yet discussed the issue at any length. United States v. Ellis, 121 F.3d 908, 918 (4th Cir. 1997); United States v. Wilson, 118 F.3d 228, 238 (4th Cir. 1997); Anderson v. Group Hospitalization, Inc., 820 F.2d 465, 470 n. 2 (D.C. Cir. 1987) (dictum); United States v. Williams, 561 F.2d 859, 862-63 (D.C. Cir. 1977). At the time the Advisory Committee drafted its proposed Committee Notes, the Seventh Circuit apparently observed the same rule, but that Court has been extremely inconsistent, and has since expressed its unqualified rejection of such a rule. See supra note 11.

Before adopting a rule that would change the law in almost every Circuit — especially one that has been considered and vehemently rejected by most of those Circuits-one would normally expect a fairly substantial justification for the new rule. In fact, the Committee's proffered explanation for the rule is surprisingly brief. The Committee's lengthy and detailed Note is devoted almost entirely to a helpful discussion of what the new rule does not change, questions it does not answer, and situations where it would not apply. But in terms of an attempted explanation of the rule itself, the proposed Committee Note contains absolutely nothing but this:

Where the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity. See Fed.R.Civ.P. 46 (formal exceptions unnecessary); Fed.R.Crim.P. 51 (same); Favala v. Cumberland Engineering Co., 17 F.3d 987, 991 (7th Cir. 1994) ("once a motion in limine has been granted, there is no reason for the party losing the motion to try to present the evidence in order to preserve the issue for appeal").¹⁵

15 PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 135.

That's it. An oblique analogy to the law governing exceptions, and a passing citation to the Seventh Circuit rule. Although I am naturally loath to say anything that might hinder passage of a rule I so strongly support, these two "explanations" will surely change nobody's mind about the matter. (Of course, I understand that the Notes are primarily for the purpose of explaining the rules, and not persuading the Committee's readers. But those Notes also serve the potentially valuable function-at least if they seem cogent — of assisting the many state courts that look to the federal system for guidance on topics like this, and enlisting the willing support of the federal judges charged with the implementation of the rules.¹⁶) Moreover, as I shall demonstrate, these two arguments are simply false, and potentially misleading for litigants. After having done that, however, I shall conclude on a much more positive note by explaining the right reason for the Committee's proposal, and by precisely identifying the true question on which the Courts should be focusing in this context.

16 The significance of that willing support should not be underestimated. If the Judicial Conference adopts a rule (even a sensible one) that strikes the federal courts as mistaken, based on reasons they regard as unpersuasive, those courts are more likely to engage in constructions of the rule that will undercut its purpose. Witness the difficulties engendered by the sensible 1993 amendments to Federal Rule of Civil Procedure 26(a)(1), which prompted such a massive wave of judicial resistance and rejection on the local level that those amendments are now on the verge of virtual repeal. See COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE AND EVIDENCE, 181 F.R.D. 18, 70-73 (Aug. 1998).

B. The Problems with the Committee's Reasons for its Proposal

1. The Analogy to the Law of Exceptions. The proposed Committee Note first tries to justify the new rule with a passing citation to a pair of rules that have abolished formal exceptions as a condition to appealing from rulings in federal civil and criminal trials. The obvious implication is that the renewal of a motion that has already been definitively decided is as worthless — and should be as unnecessary — as a formal exception to a ruling. But is that really so? Is the renewal of a motion in limine no different than taking an exception to a ruling? Those questions require us to briefly consider the problem with exceptions.

In the film The Verdict, the final trial scene pits Paul Newman against the judge with the following terse exchange:

NEWMAN: Objection!

JUDGE: Overruled.

NEWMAN [with rising anger]: Exception!

JUDGE: Noted.¹⁷

17 THE VERDICT (Twentieth Century Fox 1982).

Even viewers with no legal training instinctively recognize that the last half of this four-word exchange is mindless formalism. The exception tells the judge absolutely nothing he didn't already know. If Newman was not happy with opposing counsel's suggestion, as he indicated clearly enough by objecting, it necessarily follows he would not be pleased with the judge's decision to side with the other lawyer. In a modern courtroom, an exception operates as little more than a slightly more grown-up way of expressing that ancient child's retort: "Oh yeah?" That is why federal law long ago sensibly abolished the need for exceptions to a ruling.

But it was not always that way. Paul Newman's viewers might be surprised to find that, at one time, a lawyer's ability to complain on appeal turned on whether he merely objected, or whether he also excepted to the ruling rejecting his objection. This rule made some sense long ago "when there were no court reporters and no transcripts available to recite the occurrences at trial," because an attorney's formal bill of exceptions was the only way to insure that the judge would preserve a record of the rulings that the attorney planned to challenge on appeal.¹⁸ The rule makes absolutely no sense in modern courtrooms, although a few States have been surprisingly slow to abandon the requirement of an exception as a condition to appeal.¹⁹

18 Derrick Augustus Carter, A Restatement of Exceptions to the Preservation of Error Requirement in Criminal Cases, 46 U. KAN. L. REV. 947, 949 (June 1998).

19 Even as recently as 1982, when The Verdict was filmed, several States did not permit appeals from an overruled objection unless the losing party also took an exception to the ruling. Berger v. Cuomo, 230 Conn. 1, 11, 644 A.2d 333, 339 n. 10 (Conn. 1994) (noting that Connecticut retained the requirement until October 1, 1993); State v. Baker, 127 N.H. 801, 803, 508 A.2d 1059, 1061 (N.H. 1986) (noting that New Hampshire retained the requirement until July 1, 1985). Indiana observes a similarly foolish rule — every bit as indefensible — with respect to closing arguments. In that State, even a party who unsuccessfully objects to improper comments may not complain on appeal unless he also engages in the futile exercise of immediately following up the overruled objection with a motion — addressed to the same judge who just overruled the objection altogether — to admonish the jury to disregard the comment, and to grant a mistrial! Michael Tyson v. State, 619 N.E.2d 276, 292 n. 18 (Ct. App. Ind. 1993). These absurd rules call to mind the recent film A Few Good Men, which would have us believe that a lawyer played by Demi Moore supposedly flaunts her inexperience by "strenuously objecting" after her objection has already been overruled. See PAUL BERGMAN MICHAEL ASIMOV. REEL JUSTICE 76 (1996) (noting that Moore's character is portrayed as incompetent because she "makes foolish objections to evidence"). Few viewers of the film would ever imagine that Moore's supposedly risible repetition would actually make all the difference to her client's hopes for appeal in some jurisdictions. See also United States v. Rivera-Santiago, 872 F.2d 1073, 1083 (1st Cir. 1989) (defendant forfeited objection by failing to request continuing objection when allegedly objectionable question was repeated, even though the trial judge's overruling of the initial objection "was emphatic and indicated that future objections would be fruitless").

Like the renewal of an objection that has been considered and rejected in limine, an exception to a ruling bears the obvious vice of being repetitive, in the sense that it only reminds a judge where some party stands on a question of admissibility and why.²⁰ But that is not the most compelling reason why exceptions are always superfluous, or why they have wisely been abolished. The chief vice of exceptions to rulings — just like Paul Newman's from the typical transcript quoted above — is that they are both repetitive and immediate. Because they almost invariably come immediately after the same party's objection has been considered and rejected, they give the judge no reason to reconsider the ruling or change her mind.²¹ They therefore have nothing to do with the very reason why objections are normally required as a precondition to preservation of error: namely, to "help the trial court avoid error by reconsidering its ruling and taking corrective measures if necessary."²²

20 This fact is built right into the federal rules. No exception is necessary, and an objection is sufficient, only if the appealing party "makes known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor." FED. R. CIV. P. 46; FED. R. CRIM. P. 51.

21 Of course, it is always possible for a party, in the course of taking an exception to a ruling, to offer additional explanation or grounds for his objection. But in that case the "exception" is one in name only, and is in substance an additional argument, a new objection, or a de facto motion for reconsideration. In no situation does the mere act of taking an exception, without more, tell a judge anything she did not already know about some party's legal position, nor give her any reason to revise her initial ruling.

22 CHRISTOPHER B. MUELLER AND LAIRD C. KIRKPATRICK, MODERN EVIDENCE: DOCTRINE AND PRACTICE § 1.3, at 7 (1995).

The same can not always be said, however, about a party who renews an objection that was overruled in limine, perhaps pretrial. Unlike an exception to a ruling made seconds earlier, the renewal of such a motion often comes weeks, maybe even months, after the last time the judge was asked to consider the objection. Much may have changed in the interim: opening statements have been made, other evidence has been admitted, and the parties' trial theories are visibly taking shape before the judge and jury. If the objection is one that depends for its force on intangibles such as the probative value or prejudicial impact of the evidence, its renewal in the very different context of trial will sometimes make all the difference in whether the judge has been fairly presented with a full picture of the grounds for its admission or exclusion. The classic example of such a situation, as many courts have noted, is an objection under Rule 403, which has often been dubbed singularly inappropriate for final resolution in the context of a pretrial hearing.²³ This is especially true in light of the Supreme Court's recent holding that assessing the probative value of evidence is not to be done in isolation, but rather requires the trial judge "to take account of the full evidentiary context of the case as the court understands it when the ruling must be made."²⁴

23 E.g., United States v. Timothy McVeigh, 153 F.3d 1166, 1200 n. 24 (10th Cir. 1998); Walden v. Georgia-Pacific Corp., 126 F.3d 506, 518 n. 10 (3d Cir. 1997); AMERICAN BAR ASSOCIATION, SECTION OF LITIGATION, CIVIL TRIAL PRACTICE STANDARDS 48 (Feb. 1998).

24 Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 651, 136 L.Ed.2d 574 (1997).

It comes as no surprise, therefore, that every federal court of appeals to address the issue has rejected any suggestion that a general rule allowing appeals from in limine rulings — such as the rule now proposed by the Advisory Committee — can be justified by an analogy to Federal Rule of Civil Procedure 46 and its elimination of the need for exceptions. This is true even though it has been almost fourteen years since a federal appeals court first publicly proposed that analogy.²⁵ Some federal courts have flatly rejected any value to the comparison, ²⁶ and even those that have found it persuasive invariably cite it only in support of some flexible rule that depends on the precise nature of the evidentiary objection, and whether it can be fairly and finally decided in limine in a given case.²⁷ Even the Circuits that have adopted a rule like that proposed by the Committee have never placed any visible reliance on that analogy. With good reason, it is certain that no appellate court, state or federal, will change its mind about the matter because of the Advisory Committee's suggested comparison to the law governing exceptions.

25 American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324 (3d Cir. 1985).

26 "We doubt that Rule 46 of the Federal Rules of Civil Procedure was intended to modify Rule 103 of the Federal Rules of Evidence." Burger v. Western Kentucky Navigation, Inc., 960 F.2d 149, 1992 WL 75219, *3 (6th Cir. 1992) (unpublished opinion).

27 See United States v. Mejia-Alarcon, 995 F.2d 982, 986-87 (10th Cir. 1993) (collecting cases).

2. The Reference to the Seventh Circuit Rule. Apart from a passing reference to the federal rule on exceptions, the only support for the proposed rule cited in the Committee Notes is a pair of decisions by the Seventh Circuit Court of Appeals, ²⁸ including that Court's assertion in Favala that "once a motion in limine has been granted, there is no reason for the party losing the motion to try to present the evidence in order to preserve the issue for appeal."²⁹ With all respect to the Committee, that is far too slender a reed on which to mount a proposal for such significant reform of the law.

28 PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 135 (citing Cook v. Hoppin, 783 F.2d 684 (7th Cir. 1986), and Favala v. Cumberland Engineering Co., 17 F.3d 987, 991 (7th Cir. 1994)).

29 Id. at 135 (quoting Favala, 17 F.3d at 991).

In the first place, the line quoted by the Committee from Favala was not intended as an explanation of the reason for the Seventh Circuit's rule, but was simply a description of its consequences for trial lawyers. To be candid, the Seventh Circuit has never given any explanation for its rule that is deserving of public scrutiny, much less capable of commanding assent. That court has been extremely inconsistent, and once announced a different rule, apparently without realizing it was departing from its own precedent.³⁰ The seminal Seventh Circuit case on this point, Cook v. Hoppin, gave literally no reason that stands up to continued scrutiny today. In that case, which is also cited in the proposed Committee Note, ³¹ the Seventh Circuit first announced its rule with no explanation other than a citation to a pair of cases decided seven years earlier by the Courts of Appeals for the Fifth and Tenth Circuits.³² But both of those Circuits have since adopted different rules following close and extended appellate consideration.³³ And to cap it all off, just a few weeks ago the Seventh Circuit emphatically repudiated its holding in Favala, and has now adopted perhaps the strictest requirement announced by any federal court for the renewal of pretrial objections as a condition to appeal!³⁴ Obviously that background furnishes no rational basis for the nationwide modification of the law to mirror the Seventh Circuit's alleged approach to this issue.

30 United States v. York, 933 F.2d 1343, 1360 (7th Cir. 1991). The Seventh Circuit later acknowledged this inconsistency in Favala, when it cited York as the reason why renewal of a pretrial objection is not required by "[t]he majority of our cases." Favala, 16 F.3d at 991.

31 PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 135.

32 Cook v. Hoppin, 783 F.2d 684, 691 n. 2 (7th Cir. 1986) (citations omitted).

33 See cases cited supra notes 7 and 13.

34 Wilson v. Williams, 161 F.3d 1078, 1086-87 (7th Cir. Nov. 30, 1998). The Court, arguably going further than any federal court had ever gone, held that renewal of a pretrial objection is strictly required, even in the extreme case (such as that one) where (1) the objection had been considered and rejected twice by the judge before trial, (2) the most recent rejection had been just prior to opening statements, less than three hours before the disputed evidence was offered at trial, and (3) it appears that a renewed objection would run the risk of incurring the displeasure of the judge. Id. The Court even stated that, as a matter of law, pretrial rulings are always preliminary and may not serve as the basis for a claim of error on appeal, "regardless of what counsel might infer from the judge's wording when he or she makes an in limine ruling." Id.

But there is a far more significant indictment of the particular line that the Committee chose to cite from the Seventh Circuit's statement in Favala that a party losing a pretrial motion has "no reason" to renew some evidentiary objection "in order to preserve the issue for appeal."³⁵ Regardless of whether it may have been an accurate statement of the Seventh Circuit rule when Favala was decided, and perhaps even when the Committee Note was drafted, it is simply false today. It is not an accurate description of the law in any Circuit, or even of the proposed new rule.

35 PROPOSED AMENDMENT TO RULE 103(a), 181 F.R.D. at 135 (quoting Favala v. Cumberland Engineering Co., 17 F.3d 987, 991 (7th Cir. 1994)) (emphasis added).

In fact, even under the generous rule now endorsed by the Advisory Committee, which permits a party to complain on appeal about a pretrial ruling that was not challenged again at trial, it is false and misleading to state that a losing party never has an incentive to renew his pretrial argument for the sake of preserving his prospects for appeal.³⁶ That assertion fails to reckon with the ruling last year in Old Chief v. United States, when the United States Supreme Court held that a federal appeals court must evaluate a trial court's in limine decision on the admissibility of evidence "from its perspective when it had to rule and not indulge in review by hindsight."³⁷ The Court cited with approval an Eleventh Circuit holding that a pretrial ruling admitting evidence should be affirmed if it was consistent with the trial court's reasonable impression "at that stage" of what was likely to happen at a later trial.³⁸ That eminently sensible holding did not deviate from any other holding by the Court, and probably corresponded with what most Courts of Appeals had already done themselves.³⁹ But it marked, to the best of my knowledge, the first time the Supreme Court itself made that direction explicit.

36 Of course, the losing party often has an obvious incentive to renew his position even if only for the chance of persuading the trial court to reconsider and revise its ruling. But I leave that "trial level" incentive to one side, as the Seventh Circuit did in Favala, and focus here only on the far more subtle reason why he might also have an incentive to renew his objection from the perspective of his appellate prospects.

37 Old Chief v. United States, 519 U.S. 172, 179 n. 6, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The Court was referring specifically to rulings under Federal Rule of Evidence 403, but nothing in the language or logic of that opinion suggests that the Court would apply any different standard of review to a ruling under any other evidence rule. The Court has recently indicated its seemingly unqualified desire to submit all evidentiary rulings to an abuse of discretion standard of review. See infra notes 47-48.

38 Id. (citing United States v. O'Shea, 724 F.2d 1514, 1517 (11th Cir. 1984)) (emphasis added).

39 Before Old Chief was decided, for example, one Circuit had already concluded that an appellant who neglected to relitigate the pretrial denial of his motion is limited to the evidence before the trial court at the time the motion was decided, and is not permitted to seek reversal based on evidence developed at trial. United States v. Hicks, 978 F.2d 722, 724-25 (D.C. Cir. 1993) ("An appellate court should not rely on evidence first produced at trial to reverse a pre-trial denial of a suppression motion not renewed at trial.") The Court quite sensibly added, however, that the same rule would not apply to the appellee, who may seek affirmance of a pretrial ruling based on evidence that later emerges at trial. Id. See also United States v. Lewis, 433 F.2d 1146, 1152 (D.C. Cir. 1969) (renewal of overruled objection is required "when the court's initial ruling, correct when made, is proved erroneous in the light of subsequent evidence.")

Even under the rule that formerly prevailed in the Seventh Circuit, therefore, it was not true that a party who loses a pretrial skirmish over admissibility has "no reason . . . to try to present the evidence in order to preserve the issue for appeal." If he fails to renew the challenge at trial, the former Seventh Circuit rule — just like the proposed amendment to Rule 103(a) — would still allow him to complain on appeal that the pretrial ruling was erroneous. But that does not mean that his prospects for appeal would be unaffected, because the pretrial objection will have preserved only his claim that the in limine ruling was an abuse of discretion even on the basis of the preliminary and sometimes abstract record before the district court at the time of its ruling. If the objection was one that draws force from the context in which it is made, as many (but not all) objections do, the renewal of that objection in the thick of the trial, even if it is again overruled, will put the losing party in the potentially much stronger position of being able to argue on appeal that the second decision on the objection was an abuse of discretion. That distinction, as the Supreme Court emphasized in Old Chief, will sometimes make all the difference between victory and defeat on appeal.

This aspect of the Supreme Court's ruling in Old Chief is surely the best (although not the only) reason to avoid any Advisory Committee Note that would seemingly endorse the Seventh Circuit's mistaken insistence that the law of appellate review offers "no reason" for a losing party to renew an unsuccessful pretrial motion regarding the admissibility of evidence. By obscuring the operation of the Court's contrary holding in Old Chief, that suggestion would create a most unfortunate trap for the unwary, who might discover far too late that he had failed to preserve his claims for reversal in the best possible light by neglecting to raise them-and forcing the district judge to rule upon them — in the concrete setting of events as they unfolded at trial. He would have managed to preserve a claim for appeal, all right, but perhaps not the one he thought. An appellant in that unenviable position will have succeeded only in preserving the claim that the district court abused its generally broad discretion when it failed, in the unique setting of a pretrial ruling, to foresee the full significance the evidence would ultimately have in the context of trial. Depending on the nature of the objection, that may be an uphill battle indeed.

C. The Best Explanation for the Committee's Proposed Rule

Up to this point, I have attempted to demonstrate why the proposed Committee Notes are less than ideal, and why they are certain to persuade nobody to change his mind on the matter. In doing so, however, I have shown the ideal resolution of this perennial problem, and pointed the way toward a more persuasive and coherent explanation for the new rule. It has often been noted that "no answer is what the wrong question begets."⁴⁰ In the case of current federal law, we have seen the Circuits develop an impressive array of wrong answers, all because the courts have been blindly following each other in their effort to answer the wrong question, as I shall explain.

40 ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH 103 (1962).

The Circuits that are certain to least admire the proposed new rule are those that have adopted a directly contrary rule requiring all losing parties to renew an unsuccessful motion in limine to preserve a claim of error for appeal.⁴¹ In attempting to justify such extreme measures, these courts invariably cite the supposed importance of giving "the trial judge an opportunity to reconsider his in limine ruling with the benefit of having been witness to the unfolding events at trial."⁴² These courts typically also stress the alleged need to discourage would-be sandbaggers "from refraining from making an objection at trial in order to reserve an opportunity to assert reversible error on appeal."⁴³

41 See sources cited supra note 13.

42 Marceaux v. Conoco, Inc., 124 F.3d 730, 734 (5th Cir. 1997) (internal quotations and citations omitted).

43 United States v. Roenigk, 810 F.2d 809, 815 (8th Cir. 1987).

These concerns have some force, although they cannot possibly justify the blunderbuss approach of requiring all pretrial motions to be renewed at trial. As several other Courts of Appeals have correctly noted in response, it makes no sense to adopt an inflexible rule requiring all pretrial objections to be renewed at trial, because many pretrial evidentiary rulings involve pure questions of law that cannot be decided with any greater accuracy in the heat of trial.⁴⁴ And even in those cases where these concerns have greater force, they cannot justify a rule so unpredictable and draconian as the various preservation of error rules in several other Circuits that require a would-be appellant to correctly guess, upon possible penalty of total appellate defeat, whether some reviewing Court of Appeals will conclude that there was "good reason" to refrain from renewing the objection, or whether the Court of Appeals will agree with the district court's conclusion that the issue was one that could fairly be decided in a pretrial setting.

44 "[S]ome evidentiary issues are akin to questions of law, and the decision to admit such evidence is not dependent upon the character of the other evidence admitted at trial." United States v. Mejia-Alarcon, 995 F.2d 982, 987 (10th Cir. 1993). In that case, the Court wisely held there is no point in requiring an accused to renew a pretrial motion on the purely legal question whether a food-stamp conviction qualified as a crime of dishonesty or false statement under Rule 609(a)(2). Id.

The heart of the problem is that every federal court of appeals to address this pressing issue has analyzed it as a question of appealability, as if the right outcome turned on an all-or-nothing conclusion that a pretrial ruling either could or could not be appealed.⁴⁵ On the contrary, the complex matrix of pressing institutional concerns in this vein is already more sensibly handled, just as it should be, by a different collection of well-settled rules governing the scope of review. When a litigant chooses not to challenge or relitigate a definitive pretrial ruling, the proper focus for the appeals courts is not whether anything has been preserved for appeal (as if the answer were a simple yes or no), but which claims have been preserved.

45 Likewise, the Advisory Committee also saw itself as answering the issue of "whether a losing party must renew an objection or offer of proof when the evidence is or would be offered at trial, in order to preserve a claim of error on appeal." PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 134 (emphasis added). As I explain later in the text, the better question in this context is not whether such an appellant has preserved a claim, but rather which claim he has preserved for appeal.

Quite apart from the whole business of preservation of error, which is at best an unwieldy instrument for achieving rough justice in this context, the scope of review regarding pretrial rulings is already nicely regulated by three simple rules: (1) the rule that any objection to the admission of evidence must be made with sufficient specificity to fairly apprise the district court of the possible need for additional testimony or argument⁴⁶; (2) the Supreme Court's repeated insistence that evidentiary rulings are reviewed only for "abuse of discretion,"⁴⁷ a demanding standard that is almost never satisfied in actual practice⁴⁸; and (3) as I have explained, the Court's recent pronouncement that any appeal from a pretrial admissibility ruling must be reviewed from the perspective of the judge at the time he made the ruling in light of the record then placed before him.⁴⁹

46 United States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997). In that recent case, even though a criminal defendant objected that a hearsay statement was not shown to be admissible under the standard for conspirators' statements of Federal Rule of Evidence 801(d)(2)(E), and specifically cited that rule, the Fifth Circuit held such an objection was not specific enough to preserve the claim that the Government had failed to satisfy the "in furtherance" requirement of that rule. Id. at 672-73. But cf. United States v. Rascon, 8 F.3d 1537, 1538-39 (10th Cir. 1993) (defendant's mere act of raising hearsay objection is sufficient to preserve any objection to the failure of the court to make all required findings for admissibility under Rule 801(d)(2)(E)).

47 General Electric Co. v. Joiner, 522 U.S. 136, 140, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). In reviewing evidentiary rulings, the court of appeals must "give the trial court the deference that is the hallmark of abuse of discretion review." Id.

48 ROGER C. PARK. DAVID P. LEONARD. STEVEN H. GOLDBERG, EVIDENCE LAW § 12.01, at 540-41 n. 6 (1998) (concluding that the prevailing standard of review grants trial courts "a virtual shield from reversal based on error in applying discretionary rules" of evidence). Those authors note that some rules of evidence are categorical rules of law, and therefore reject any suggestion that all evidence rulings should be subject to an abuse of discretion standard of review, as opposed to "a more searching standard such as `error of law.'" Id. at 540-41. But that very argument was answered two years earlier when the Supreme Court declared: "Little turns, however, on whether we label review of [a] particular question abuse of discretion or de novo, for an abuse of discretion standard does not mean a mistake of law is beyond appellate correction. . . . A district court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

49 Old Chief, 519 U.S. 172, 179 n. 6, 117 S.Ct. 644.

In almost every case, these staples of appellate procedure will easily suffice to discourage any would-be "sandbagger" from wasting his time trying to sow the seeds of reversible error in the rocky soil of a pretrial motion. They also insure that every party contemplating an appeal from a ruling in limine has ample incentive to renew that motion at trial, and so give the trial judge one more fair chance to consider its merits, in all (and only) those cases where the objection or offer might seem more compelling in the thick of the trial. That is the same objective which many Circuits have rather clumsily tried to orchestrate through their manipulation of the test for deciding whether the appellant has succeeded in preserving any claim of error at all.

Even if pretrial rulings are made reviewable on appeal, there is one more solid reason for would-be appellants to hesitate before trying their luck on such an appeal. If the losing party on a pretrial motion does not renew the claim, he will not be able to prevail on appeal based on evidence or considerations that later emerge for the first time at trial.⁵⁰ But the same limitation will not apply to his adversary. The opposing party who seeks affirmance of an in limine ruling (that is, the appellee) may, if he chooses, ask the Court of Appeals to affirm on the basis of either the record before the district judge at the time she made her ruling, or the record as it stood at the time the evidence was ultimately admitted, whichever is more favorable to the appellee.⁵¹ This follows directly from the principle that an appeals court may affirm on any grounds supported by the law and the record, even when reviewing a discretionary ruling that is subject to the generous "abuse of discretion" standard.⁵² So the aspiring sandbagger who gambles on an appeal from a pretrial ruling is usually giving his opponent a tremendous advantage, and literally two different ways to win.

50 See sources cited supra notes 37-39.

51 United States v. Hicks, 978 F.2d 722, 724-25 (D.C. Cir. 1993).

52 Schenck v. Pro-Choice Network Of Western New York, 519 U.S. 357, ___ n. 12, 117 S.Ct. 855, 870 n. 12, 137 L.Ed.2d 1 (1997). In his opinion for the Court, Chief Justice Rehnquist was unpersuaded by Justice Scalia's dissenting view that a different rule ought to be applied on review of a decision such as the terms of a preliminary injunction, which is reviewable for abuse of discretion.

Having said that, we now come full circle and return to the language of the rule drafted by the Advisory Committee. As I have shown, that rule is an excellent rule that should be adopted, but not for the reasons given in the draft of its accompanying note. In particular, it most certainly is not the case, as the Committee Note suggests, that the rule would never give a losing party any reason to challenge a ruling in limine at trial. The rule and its notes would be more wisely framed to reflect the governing standard of review, rather than appealability generally. But although that was not exactly the question the Committee saw itself as addressing, its draft of the rule does quite a nice job of succinctly expressing precisely the right answer to that question.

My recommendation, therefore, is that the Committee Notes be changed to reflect the points outlined above. For the sake of convenience, I have submitted a proposed alternative version of the troublesome passage from those Notes, which is set forth in the concluding section of this paper. But before we get that far, I have a few comments about the other half of the proposed amendment to Rule 103(a).

II. THE SECOND PROPOSED NEW RULE: UNWISE AND UNNECESSARY A. The New Rule and What it Would Change

The second sentence of the Advisory Committee's proposed amendment — what I call the "second new rule" — addresses a closely related issue involving in limine motions that produce only conditional rulings. To take perhaps the most common example, suppose a judge denies a criminal defendant's pretrial motion under Rule 609(a) to preclude the use of some conviction as impeachment if he testifies. The ruling is conditional because the evidence will be admitted if, but only if, the defendant testifies.⁵³ What if the defendant believes the ruling was clear error and outrageously prejudicial, but fears he would have no chance of an acquittal if he calls the judge's bluff and testifies? In the landmark case of Luce v. United States, ⁵⁴ the Supreme Court held, in an opinion by Chief Justice Burger, that the accused in such a position must testify "to raise and preserve for review the claim of improper impeachment with a prior conviction."⁵⁵

53 It bears emphasis that a "conditional" ruling, in this sense, may be quite unambiguous and definitive — as where the judge rules pretrial: "I've made up my mind. The convictions will definitely be admitted if the defendant testifies, and there's no way I'll change my mind about that." A conditional ruling, as I will use the term, is not necessarily provisional or equivocal — as where the judge rules, for example: "Here's what I presently plan to allow, but I expect I'm likely to take a different view at trial and I urge you to invite me to reconsider when we get to that point." The latter ruling, by itself, presents no appealable issue for review in any Circuit, as I have noted. See supra note 4.

54 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).

55 Id. at 43.

(Before turning to the heart of the Supreme Court's analysis, I must offer a brief excursus on linguistics. By seemingly universal legal custom, impeachment of a witness under Federal Rule of Evidence 609 is always said in the case law and textbooks to entail evidence of his "prior convictions." The Luce decision uses that phrase twelve times, including both the first and last lines of the opinion.⁵⁶ The Advisory Committee, taking its cue from that tradition, proposes to codify what it calls the law governing "a trial court's decision to admit the defendant's prior convictions for impeachment."⁵⁷ Prior? As opposed to which other convictions? In this context, "prior" is always redundant. All convictions used to impeach a witness are from the past, by definition.⁵⁸ No judge this side of the Looking Glass has ever given a lawyer permission to impeach a witness by asking him about his future convictions.⁵⁹ The same is also true, by the way, of a witness's "prior bad acts" and "prior inconsistent statements," both of which are nonsensically redundant but well-worn staples of legal jargon.⁶⁰ Many courts go even further and refer to a defendant's "prior conviction record"⁶¹ — could there be any other kind of convictions in one's record? — when they simply mean his "convictions." The sorry truth is that "a lawyer never uses one word when two or three will do just as well."⁶²)

56 Id. at 39-43.

57 PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 137 (emphasis added).

58 Admittedly, this odd phrase probably originated in other, less common, contexts where it is not redundant. For example, when a statute forbids a convicted felon from possessing a weapon, it is common and sensible for the prosecutor to apprise the trial judge that an accused had "several prior convictions." This makes it clear that at least some of his convictions, all of them necessarily from some point in the past — that always goes without saying — were also before his arrest with a gun. But that is never true of convictions admitted under Rule 609, which applies with equal vigor to all convictions that are more than one second old.

59 "`It's a poor memory that only works backwards,' the Queen remarked. `What sort of things do you remember best?' Alice ventured to ask. `Oh, things that happen the week after next,' the Queen replied in a careless tone. `For instance, now, . . . there's the King's messenger. He's in prison now, being punished: and the trial doesn't even begin till next Wednesday: and of course the crime comes last of all.'" LEWIS CARROLL. THE ANNOTATED ALICE: ALICE's ADVENTURES IN WONDERLAND AND THROUGH THE LOOKING GLASS 248 (Martin Gardner ed. 1960). Now there's the unusual jurist who needs to take pains to distinguish when she is discussing a prisoner's prior convictions!

60 Although Luce speaks incessantly of a defendant's "prior convictions" admitted under Federal Rule of Evidence 609, it is noteworthy that the word "prior" does not appear once in the text of Rule 609 and its original Advisory Committee Notes, both written at a time when much saner heads prevailed. Tragically, however, the title and text of Rule 613 refer repeatedly to impeachment of a witness with his "prior" statements, quite oblivious to the fact that a witness has no other statements that could possibly be used against him but the ones he has already made. If the Rules of Evidence were written today, I sometimes wonder if we would have a rule on "Prior Subsequent Remedial Measures."

61 E.g., United States v. Wilson, 107 F.3d 774, 783 (10th Cir. 1997); Walker v. Deeds, 50 F.3d 670, 673 (9th Cir. 1995); United States v. Moore, 936 F.2d 1508, 1515 (7th Cir. 1991).

62 Coca Cola Bottling Co., Inc. v. Reeves, 486 So.2d 374, 383-84 (Miss. 1986). The Court added: "The legal mind finds magnetic attraction in redundancy and overkill." Id.

In the second new rule to be added to Federal Rule of Evidence 103, the Advisory Committee proposes to codify and considerably expand the Supreme Court's decision in Luce, based on the reasoning that "the Luce principle . . . logically applies whenever the occurrence of a trial event is a condition precedent to the admission or exclusion of evidence."⁶³ The proposed rule would provide that: "if under the court's ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied."⁶⁴

63 PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 137.

64 PROPOSED AMENDMENT TO RULE 103(a), 181 F.R.D. at 134.

This new rule would enshrine the holding of Luce, and extend it much further than the Supreme Court itself has gone. It would extend the logic of Luce to every conceivable situation involving a conditional ruling in limine, even in civil cases, and even if the ruling involves other rules of evidence, and evidently even if the alleged error directly implicates a constitutional claim. The Luce opinion itself never indicated that the Supreme Court would be willing to go quite that far, and in fact hinted that it might not. Indeed, in the span of nearly fourteen years since that case was decided, not one Justice of the Supreme Court has ever cited Luce in any other opinion — much less revisited the wisdom or fairness of that landmark ruling.⁶⁵

65 The only time Luce has ever been cited by any justice of the Supreme Court was in a summary order entered one month later, remanding another case for further consideration in light of that holding. United Stares v. DiMatteo, 469 U.S. 1101, 105 S.Ct. 769, 83 L.Ed.2d 767 (1985).

As the Advisory Committee correctly observes, the adoption of this new rule would not immediately have a great impact on the landscape of federal law, because the lower federal courts, struggling to be faithful to the seeming implications of the logic of Luce, have generally extended it to most other sorts of conditional rulings.⁶⁶ Reportedly, the Committee was inclined to codify these cases because of a sensible concern that, if only the first proposed sentence were added to Rule 103, "the failure to mention Luce might lead one reading the rule to assume that there was an intent to reject Luce." ⁶⁷

66 PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 137 (collecting cases).

67 DRAFT MINUTES OF THE MEETING OF THE ADVISORY COMMITTEE ON EVIDENCE RULES, October 20-21, 1997, at 2.

Of course, the Committee is quite right to conclude that it should not run the risk of appearing to overrule a Supreme Court decision sub silentio by leaving Luce altogether unmentioned. Nevertheless, I am convinced that it would be both unnecessary and unwise to codify and expand Luce as the Committee intends to do. As will be shown, there are solid grounds to question the wisdom of that ruling, and even whether the Court would do the same thing if confronted with the same question today. Given the support that Luce reportedly enjoys among federal judges and members of the Committee, ⁶⁸ I shall not attempt here to persuade the Committee that it ought to take the dramatic step of overturning Luce (although, as will become obvious, I believe that it should). Just the same, for the reasons that follow, I respectfully submit that the Committee should rather rely on the Advisory Committee Notes to disclaim any intention to overrule Luce, thus leaving the Supreme Court free, if it ever chooses, to revisit the wisdom and fairness of that opinion. I reach this conclusion for the following three groups of reasons.

68 The notes of one of the Advisory Committee's earlier meetings on this proposal report that:

"Several members expressed the further view that Luce is an important decision, based on sound policy considerations, that had to be recognized in the rule," and that the committee members "unanimously" approved the proposed amendment codifying Luce and its progeny. Id. at 2-3.

B. The Problems with the Committee's Proposal

1. Luce has been extensively criticized, and was probably wrong even when it was decided. In its proposal to codify Luce, the Advisory Committee seems to place greatest weight on the fact that the United States Courts of Appeals have shown a willingness to extend it far beyond the narrow facts of that case.⁶⁹ But one ought not place too much reliance on its uncommonly warm reception by that audience. It is only understandable that our extremely overworked judges will display a natural fondness for any strict preservation of error rule, which necessarily lightens the often crushing case load of both trial and appeals court judges.⁷⁰ And in one critical respect, lower federal court rulings are the worst possible source of guidance on the wisdom of Luce, because they are not supposed to be. It is the sworn obligation of federal judges to faithfully apply the seeming logic of Luce, such as it is, to other situations that may arise. So judging Luce by its reception in subsequent lower federal court opinions is as perilous as gauging a President's integrity by surveying his cabinet members.

69 PROPOSED ADVISORY COMMITTEE NOTE, 181 F.R.D. at 137.

70 At last year's meeting of the Drafting Committee on the Uniform Rules of Evidence, there was "heated debate" over a proposal to add a rule concerning appellate review of in limine rulings. "Generally, trial lawyers desired a rule of finality out of concern for (1) waiver by inadvertent failure to repeat an objection or offer or (2) drawing judicial ire by repeating an objection or offer already ruled upon. Judges favored a rule requiring reversal of an objection or offer, absent a specific final ruling, out of concern over `sandbagging.'" REPORT OF JANUARY 24-26, 1997 MEETING OF THE DRAFTING COMMITTEE OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS TO REVISE THE UNIFORM RULES OF EVIDENCE 2 (1997) (emphasis added).

And judged by almost any other conceivable standard of measurement, Luce has been subjected to little but steady and unrelenting criticism. Even the lower federal appeals courts that had previously considered the same question with an open mind had almost unanimously reached the opposite result.⁷¹ Respected commentators have eloquently explained that the decision "forces upon an accused what is arguably an unfair choice; testify under circumstances where it is virtually certain the prosecutor will regale the jury with tales of prior convictions, or refrain from testifying, deprive the jury of the accused's side of the story, and lose all chance to appeal."⁷² Distinguished scholarly commentators have demonstrated the weaknesses in its logic, and why its supposed benefits cannot justify the severe price it demands from our system of justice.⁷³ Experienced practitioners have mounted reasoned calls for its repeal.⁷⁴ State appellate courts, which are not bound to follow Luce, are deeply divided over its merits, and at least eight States have declined to follow it, including several recent appellate opinions that have given sensible and eloquent reasons for rejecting the Supreme Court's lead.⁷⁵ In short, Luce has been rejected by a majority of the objective observers who are not being paid to like and enforce it.

71 The Supreme Court noted this point itself. Luce, 469 U.S. at 40-41, n. 3, 105 S.Ct. 460 (collecting lower court cases).

72 CHARLES ALAN WRIGHT VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6119, at 123 n. 49 (1993).

73 For a particularly cogent analysis, see MUELLER KIRKPATRICK, supra note 22, § 6.50. See also RICHARD D. FRIEDMAN, THE ELEMENTS OF EVIDENCE 533-36 (2d ed. 1998); James W. McElhaney, The 1992 All-Angus Rules, 19 No. I LITIGATION 19, 21 (Fall 1992) ("if the logic behind [Luce] strikes you as a little thin, you are in good company.").

74 AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE SECTION (COMMITTEE ON RULES OF CRIMINAL PROCEDURE AND EVIDENCE), FEDERAL RULES OF EVIDENCE: A FRESH REVIEW AND EVALUATION, 120 F.R.D. 299, 361-64 (1987).

75 Id. at 362-64 (collecting cases): State v. Galmore, 1997 WL 559871, * 3 (Tenn. Crim. App. Sept. 9, 1997) (collecting and joining cases declining to follow Luce). See also Note, State v. Lamb: North Carolina Rejects Luce, 67 N.C. L. REV. 1385 (1988).

For the sake of brevity, I will not repeat here the arguments that have been ably advanced by many others in the sources cited above. But there are a couple notable weaknesses in the very reasoning of Luce that have perhaps not yet been made with sufficient clarity. In addition to more obvious criticisms that others have already made, Luce was terribly wrong in its pivotal assumption that:

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 . . . tend to discourage making such motions solely to "plant" reversible error in the event of conviction.⁷⁶

76 Luce, 469 U.S. at 42, 105 S.Ct. 460 (emphasis added).

The Court was obviously laboring under the impression that appellate review of in limine Rule 609(a) rulings would open the door to a massive wave of reversals. In the words of one circuit, Luce is supposedly necessary to prevent a defendant from deciding to "exploit adverse rulings by treating them essentially as legal jokers, to be pulled from his sleeve should a conviction ensue."⁷⁷

77 United States v. Holmquist, 36 F.3d 154, 164 (1st Cir. 1994).

With all due respect, this reasoning borders on the fantastic. Even in the extremely rare case where a defendant can confidently conclude that some impeachment ruling is a clear abuse of discretion, he could never safely give up his valuable right to testify and bank everything on reversal, because he would always run the horrible risk that the Court of Appeals will mistakenly fail to perceive any error at all. That is exactly what happened last year, for example, in United States v. Cordoba. ⁷⁸ In that unbelievable case, the defendant was charged with cocaine possession with intent to distribute. The district judge ruled that he would allow the defendant's testimony to be impeached by evidence of a single conviction for the same offense — possession of cocaine with intent to distribute — nearly ten years earlier! That ruling was a textbook example of one of the clearest abuses of discretion one could imagine under Rule 609(a)(1).⁷⁹ Incredibly, however, the Ninth Circuit held, without dissent, that the impeachment was not an abuse of discretion under Rule 609, and found no error in the ruling at all.⁸⁰ Even if Luce were overturned, anyone who thinks he could safely count on a ridiculous Rule 609 ruling as a "joker up his sleeve" for an automatic reversal is simply not playing with a full deck.

78 104 F.3d 225 (9th Cir. 1997).

79 See MUELLER KIRKPATRICK, supra note 22, § 6.46, at 624-27 (collecting cases). As that textbook explains, the case for admitting a conviction as impeachment evidence under Rule 609(a)(1) is weakest when any of the following factors are present: (1) the conviction was for a crime such as drug use, which has "slight" probative value as evidence of untruthfulness, United States v. Martinez, 555 F.2d 1273, 1276 (5th Cir. 1977); (2) the conviction was close to ten years old, United States v. Beahm, 664 F.2d 414, 419 (4th Cir. 1981); (3) the conviction was a single conviction which therefore might have been nothing more than an "isolated criminal episode," United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983); (4) the witness was the accused in a criminal trial, see FED. R. EVID. 609(a)(1); or (5) the conviction was for the "exact type of conduct" for which the accused was on trial, United States v. Sanders, 964 F.2d 295, 297-98 (4th Cir. 1992). Under the facts of Cordoba, where all five factors were present, it is unthinkable that the admission of the cocaine possession conviction could be justified under Rule 609-unless perhaps that rule actually permits a district judge to do anything at all.

80 Cordoba, 104 F.3d at 229. Because the Court of Appeals concluded that the drug conviction was properly admitted for impeachment under Rule 609, it saw no need to discuss or decide whether the evidence might have been properly admitted under Rule 404(b), which the district judge may have also believed he was doing. Id. That unanswered question raises the obvious possibility that at least the district judge might not have been out of his mind in admitting the evidence. But the Court of Appeals' decision to affirm the admission of the evidence under Rule 609(a) is outrageous, and vivid proof that no defendant can safely rely on any Rule 609 ruling, however monstrous, as a "get out of jail free" card. See also United States v. Hernandez, 106 F.3d 737, 739-40 (7th Cir. 1997) (affirming decision to allow impeachment of an accused under Rule 609 with conviction for possession of cocaine and marijuana, where accused was on trial for drug-related kidnapping); United States v. Short, 947 F.2d 1445, 1455 (10th Cir. 1991) (error, if any, in admitting drug conviction as impeachment against the accused in drug trial was harmless).

Moreover, it is certain that Luce was exaggerating in its suggestion that a reviewing court could never deem an error "harmless" if it persuaded the defendant to refrain from testifying. In exceptional cases, appeals courts will affirm even an outright refusal to let the accused testify as harmless error where his testimony would have merely bolstered evidence of other defense witnesses.⁸¹ Besides, if the logic of Luce were sound, and one could never rule out a significant possibility that the outcome of a trial might have been different with the defendant's testimony, no appeals court could deem any error harmless at a trial where the accused did not testify, because there would always be the possibility that he might choose to testify at a retrial. But of course the federal courts dismiss thousands of criminal appeals each year under the harmless error doctrine, including hundreds where the accused did not testify, because common sense teaches that many cases present evidence so compelling that no self-serving denial by the accused could possibly affect the outcome. Because anyone guilty of a serious crime would think nothing of "the lesser immorality of denying that [he] did it,"⁸² jurors automatically expect a denial of the charge from every defendant, guilty or innocent, and therefore wisely attach little weight to the mere fact of a defendant's sworn denial.⁸³ That is why nobody in America changed their minds about O.J. Simpson's guilt or innocence just because he took the stand and denied his guilt at his second trial. As an innocent defendant at one adultery trial wisely complained centuries ago:

81 E.g., Ortega v. O'Leary, 843 F.2d 258, 262 (7th Cir. 1988).

82 VINCENT BUGLIOSI, OUTRAGE 175 (1996).

83 Id. at 330.

Since what I am to say must be but that

Which contradicts my accusation, and

The testimony on my part no other

But what comes from myself, it shall scarce boot me

To say `not guilty,': mine integrity,

Being counted falsehood, shall, as I express it,

Be so received.⁸⁴

84 WILLIAM SHAKESPEARE. THE WINTER'S TALE, III, ii, 23-29.

Surely courts may (and do) take judicial notice of these facts in recognizing that even an improper burden on a defendant's decision to testify may be harmless error, and would not result in a "windfall of automatic reversal," especially if the proffered defense testimony amounts to little more than a bare denial of the charges.

So there are many reasons to suspect that Luce was erroneously decided, as numerous state courts and objective observers have agreed. And while all this controversy has been raging for more than a decade, the Supreme Court itself, which set aside a large body of contrary prior federal rulings in Luce, has never yet once revisited the issue or even cited the case. That fact alone is sufficient reason to hesitate long and hard before carving Luce in stone.

2. The force of Luce has arguably been eroded by subsequent Supreme Court holdings. Many of the most forceful arguments that have been advanced in criticism of Luce will not be repeated here, either because they have already been made in the other sources cited above, or because they involve arguable weaknesses in the logic of the holding on its face. Although many of those criticisms are quite substantial, they are of course subject to the obvious retort that they were presumably available to, and at least implicitly rejected by, the Supreme Court in Luce. But I'd like to draw attention to the fact that the force of Luce is undercut by two subsequent holdings by the Supreme Court, which together create room for some doubt whether the Court would necessarily do the same thing if confronted with the issue again today.

The first intervening legal development concerns the constitutional status of a defendant's decision to testify at his own trial. In the Luce case itself, the defendant's appellate argument was a purely statutory claim that the trial court abused its discretion under the terms of Federal Rule of Evidence 609. There is no indication in the Court's opinion that the defendant raised, or that the Court saw itself as deciding, any constitutional claim. Indeed, in distinguishing a pair of earlier Supreme Court decisions that had reviewed and sustained "Fifth Amendment challenges to state court-rulings that operated to dissuade defendants from testifying,"⁸⁵ Chief Justice Burger wrote that "we did not hold that a federal court's preliminary ruling on a question not reaching constitutional dimensions — such as a decision under Rule 609(a) — is reviewable on appeal."⁸⁶

85 Luce, 469 U.S. at 42, 105 S.Ct. 460.

86 Id. at 42-43, 105 S.Ct. 460 (emphasis added). To be perfectly fair, it is impossible to say whether the key distinguishing feature of Luce in Chief Justice Burger's mind was that it involved an appeal from a federal court, or that it involved an allegedly nonconstitutional appellate challenge, or both (as he seems to suggest). Would either one of those two factors be sufficient to compel a different result? He simply does not say, although his opinion for the majority makes no explicit response to the suggestion by the concurring Justices that a different result should arguably obtain even in a federal trial when the challenged ruling directly implicates at least certain constitutional claims. See id. at 43-44, 105 S.Ct. 460 (Brennan, J., concurring).

With the benefit of hindsight, it sounds strange to read Burger's assertion that the trial court ruling in Luce did not reach constitutional dimensions, even though it allegedly acted to discourage the accused from exercising his right to testify at trial. But that is because, at the time Luce was decided, Chief Justice Burger and a majority of the Court still regarded it as an open question whether a criminal accused had a constitutional right to testify at his own trial. Two years after Luce, Chief Justice Burger wrote for the majority in Nix v. Whiteside that "this Court has never explicitly held that a criminal defendant has a due process right to testify in his own behalf."⁸⁷ This comment provoked a response by a minority of four justices who were "puzzled by the Court's implicit suggestion that whether a defendant has a constitutional right to testify in his own defense remains an open question."⁸⁸

87 475 U.S. 157, 164, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (Burger, C.J.). Burger went on to point out that such a right has "long been assumed" by the lower courts, and had been "suggested" by certain Supreme Court opinions, id., but he never backed off from his insistence that the question was technically an open one prior to Nix, even in the face of pointed criticism by the concurring justices. See infra note 88.

88 Id. at 186 n. 5. 106 S.Ct. 988 (Blackmun, J., concurring).

Since the time Burger wrote for the Court in Luce and Nix, however, the Supreme Court has formally settled that an accused has a constitutional right to testify at his trial.⁸⁹ That being the case, there is now a plausible basis for a criminal appellant to claim — unlike the appellant in Luce — that an erroneous ruling to allow impeachment amounted to an impermissible burden on the exercise of his constitutional rights. In a host of other contexts, the Supreme Court has held that a constitutional right may be "violated," even where the accused is not strictly forbidden from exercising that right, as long as some trial ruling undermines the right by improperly and unfairly making its exercise costly.⁹⁰ On those grounds, one state supreme court has held that Luce should not be followed where the defendant claims that his constitutional right to testify was infringed by an erroneous disposition of his motion to preclude impeachment with his conviction record, so that such claims are reviewable on appeal even if the accused does not testify.⁹¹

89 E.g., Rock v. Arkansas, 483 U.S. 44, 49-51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).

90 E.g., Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (error to use defendant's post-arrest silence as evidence of sanity or guilt, in breach of implied promise by police that silence would carry no penalty); Brooks v. Tennessee, 406 U.S. 605, 611 n. 6, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) (impermissible to penalize accused for choosing to remain silent at the time he was asked to call his first witness); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (reversing because of improper comment on the exercise of defendant's right to remain silent). See also Agard v. Portuondo, 159 F.3d 98 (2d Cir. 1998) (reversible error for prosecutor to comment on defendant's exercise of his Sixth Amendment right to be present at trial and listen to other witnesses before choosing to testify himself).

91 Apodaca v. People, 712 P.2d 467, 473 n. 9 (Colo. 1985) (en banc). See also People v. Henderson, 745 P.2d 265 (Colo.App. 1987) (refusing to follow Luce and allowing nontestifying defendant to raise a constitutional challenge to a ruling allowing impeachment by guilty pleas that were allegedly entered illegally).

Of course, I am not suggesting that every erroneous decision allowing impeachment of an accused under Rule 609 violates the Due Process Clause. But in light of these subsequent legal developments, it is most unlikely that the Supreme Court would today endorse the Luce court's unexplained and categorical assertion that an outrageously improper ruling under Rule 609, even if it made the defendant's decision to testify a practical absurdity, would be "a question not reaching constitutional dimensions."⁹² Now that the Supreme Court has formally established the direct constitutional implications of such rulings, Luce itself hints that the Court might adopt a different view if it were to revisit the issue. Surely the possibility is not so remote as to justify an amendment to the rules that would strip the Court of the power to consider the matter afresh even if it wanted to do so.

92 Luce, 469 U.S. at 42-43, 105 S.Ct. 460.

The continued vitality and wisdom of Luce are also severely undercut by another intervening legal development that Chief Justice Burger surely did not presume and may not have foreseen. In that case, as noted above, the Court reasoned that if in limine rulings under Rule 609(a) were reviewable on appeal, "almost any error would result in the windfall of automatic reversal," and so "[r]equiring that a defendant testify in order to preserve Rule 609(a) claims will . . . tend to discourage making such motions solely to `plant' reversible error in the event of conviction."⁹³ That assumption was dubious even when it was first made, as I have argued, ⁹⁴ but it is practically indefensible after the Supreme Court's holding last year in Old Chief That case announced for the first time that pretrial and other rulings in limine must be reviewed from the perspective of the trial court when it was asked to make its ruling, based on the limited and necessarily speculative record then before it.⁹⁵ Coupled with the deferential "abuse of discretion" standard since laid down by the Court, it is simply no longer true (if it ever was) that the drastic rule of Luce is necessary to guard against widespread reversals resulting from "almost any error" in a pretrial ruling under Rule 609(a).

93 Id. at 42, 105 S.Ct. 460.

94 See supra notes 77-84 and accompanying text.

95 Old Chief v. United States, 519 U.S. 172, 179 n. 6, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

To be more precise: If Luce were overturned, as many commentators and state court judges believe it should, exactly who would derive the supposed benefit of "the windfall of automatic reversal"? Which additional criminals would be lucky enough to get their convictions overturned on appeal? As it happens, especially after Old Chief, there would be extremely few. Additional reversals would result only in the rare cases in which (1) the trial judge makes a definitive ruling to allow the Government to impeach the defendant with some conviction if he testifies, and (2) a presumably ethical and competent prosecutor indicates a willingness to use the conviction if given the chance, or at least declines to categorically renounce any intention of doing so, despite the fact that (3) the ruling was so beyond the pale of defensible outcomes that the Court of Appeals can later be persuaded that the ruling was a clear abuse of discretion, even when viewed from the inherently limited vantage the district judge enjoyed when asked to rule on the issue in the abstract setting of a motion made before the accused took the stand! Moreover, the accused will still need to persuade the Court of Appeals that the error was not harmless, which almost never happens.⁹⁶

96 See Margaret A. Berger, When, if Ever, Does Evidentiary Error Constitute Reversible Error?, 25 LOY. L.A. L. REV. 893 (1992) (finding only 30 officially reported decisions out of over 20,000 tried federal cases during 1990 in which a federal trial court was reversed for evidentiary error); David P. Leonard, Appellate Review of Evidentiary Rulings, 70 N.C. L. REV. 1155, 1212-29 (1992) (finding virtually no reversals for error in applying Rules 608(b) and 611 for a ten year period).

How many cases will fit that description? Only a tiny handful. But the exceedingly rare defendant who pulls it off is richly deserving of the reversal he has fought so hard — and risked so much — to obtain.⁹⁷ If an adverse ruling under Rule 609 is such a clear abuse of discretion as to give possible grounds for a successful appeal, and therefore to serve, in the words of the First Circuit, "as legal jokers, to be pulled from his sleeve should a conviction ensue,"⁹⁸ that is only because the joker was unfairly dealt to him from the bottom of the deck by the prosecutor and judge, over his explicit objection, and was given to him in lieu of a fair hand that would have given him a better shot at an acquittal. Nobody who beats such long odds can be accused of not giving the prosecutor and the trial judge a fair opportunity to do the right thing and avoid reversal. A federal government that helps subsidize the growing of tobacco can surely be magnanimous to also leave room for the precious few defendants, some of them quite possibly innocent, who manage against all odds to successfully "plant" the seeds for reversible error in such unspeakably inhospitable terrain.

97 Remember, if Luce is overturned, the only ones who will benefit are the defendants who now give up their right to testify, thus abandoning any hope of establishing reasonable doubt through their sworn explanations of innocence. The ones who now bite the bullet and testify in the teeth of a ruling so egregious as to amount to an abuse of discretion are already entitled to the supposed "windfall" of reversal under Luce.

98 United States v. Holmquist, 36 F.3d 154, 164 (1st Cir. 1994).

3. The logic of Luce does not clearly apply outside of discretionary evidentiary rulings. For all the reasons outlined above, it cannot be presumed that the Supreme Court, were it to reconsider Luce today, would still endorse that holding even in the narrow context of Rule 609 decisions where it was decided. But there is far less basis for confidence in the Advisory Committee's assumption that the Court would approve the extension of Luce to every other conditional ruling, including those that involve the application of non-discretionary rules of evidence or constitutional law.

In adopting a strict rule requiring the defendant to testify to preserve claims of error in conditional Rule 609 rulings, the Luce court explicitly emphasized that its concerns were "particularly" compelling in the unique context of Rule 609, "which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant."⁹⁹ For that very reason, the Court stressed, there is a substantial likelihood that such rulings are "subject to change when the case unfolds."¹⁰⁰ At least that aspect of the Court's reasoning, which has been called "the central rationale for the decision,"¹⁰¹ would obviously not apply to many other kinds of evidentiary rulings. The majority expressed no disagreement with the explicit statement by two concurring justices that the same result "might not necessarily be appropriate" in other contexts outside of Rule 609(a)(1), especially in settings where "the determinative question turns on legal and not factual considerations."¹⁰² Respected commentators have observed, correctly, that this vital caveat is quite arguably correct.¹⁰³

99 Luce, 469 U.S. at 41, 105 S.Ct. 460.

100 Id.

101 CHARLES ALAN WRIGHT VICTOR JAMES GOLD. FEDERAL PRACTICE AND PROCEDURE. EVIDENCE § 6119, at 123 (1993).

102 Luce, 469 U.S. at 43-44, 105 S.Ct. 460 (Brennan, J., concurring).

103 WRIGHT GOLD, supra note 101, at 123 ("The scope of Luce is unclear. . . . The concurring opinion sensibly suggests that, where admissibility turns on legal not factual concerns, it may not be appropriate to require that the accused testify to preserve the issue for appeal.")

For example, in New Jersey v. Portash, ¹⁰⁴ a convicted defendant argued that his Fifth Amendment rights had been violated by a pretrial ruling that grand jury testimony compelled from him under a grant of immunity could be used against him if he chose to testify at trial. Even though he had not testified, the Supreme Court evidenced no reluctance to reach and sustain his constitutional claim, in part because its merits were obvious without regard to what he would have said on direct or cross-examination. The same result arguably would also follow from Portash in a host of other cases where an appellant challenges a conditional ruling on a pure question of law that can be resolved without the need to know what he would have said on direct examination (such as, for example, the pretrial ruling by one actual judge who erroneously concluded that a food-stamp conviction was admissible under Rule 609(a)(2) as a crime involving "dishonesty or false statement."¹⁰⁵) An excellent argument can be made that such cases are more properly controlled by Portash than the reasoning of Luce, and to this date the Supreme Court has never said one word to resolve the point.¹⁰⁶ It would be a shame for the Advisory Committee to adopt a rule that would strip the Court of the power to decide this important and close question, the very issue the late Justice Brennan took such pains to keep open in Luce.

104 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979).

105 United States v. Mejia-Alarcon, 995 F.2d 982 (10th Cir. 1993). The court of appeals did not need to struggle with the thorny implications of Luce and Portash for such a case, because the defendant there bit the bullet and testified anyway.

106 One federal appeals court has ruled that Luce does not preclude review of a constitutional argument that a defendant's Fifth Amendment rights were violated by a ruling allowing him to be impeached by a statement taken from him in violation of his right to counsel, even though the defendant did not testify at trial after that ruling was made. United States v. Greer, 791 F.2d 590, 594 (7th Cir. 1986). Relying on Portash and distinguishing Luce, the court noted that the challenge was a constitutional objection involving pure questions of law that did not turn on the factual details of what his trial testimony might have been. Id. The court also noted that the case, like Portash, involved federal court review of a state conviction, id., although it is unsettled whether that distinction by itself is significant. See supra note 86.

CONCLUSIONS

I conclude with three recommendations. They are intended primarily for the benefit of the Advisory Committee on the Federal Rules of Evidence, to whom they were originally submitted. But I hope they might also be of some guidance to lawyers and state appellate courts that continue to struggle with the same issues.

I.

I offer first an important stylistic recommendation. Following well-settled linguistic tradition, the proposed Advisory Committee Notes twice refer to the law governing the admissibility of "prior convictions" for impeachment.¹⁰⁷ I freely concede that every leading evidence textbook and judicial opinion on Rule 609 makes the same silly mistake. But as I have explained, "prior" is always meaningless and redundant in this context, because all convictions admitted for impeachment are, by necessity, in the past. Following my testimony before the Advisory Committee in October, I had a brief and pleasant chat about this very point with United States District Judge Fern M. Smith, the Committee Chair. Judge Smith observed with great sagacity and wit that impeaching someone with his "prior convictions" is just as redundant as "tuna fish," but probably every bit as lodged in our legal lexicon. I fear that she is quite right, but I am not just yet prepared to abandon the fight for the maximum level of precision and clarity reasonably attainable in the wording of the Rules and their supporting Committee Notes.¹⁰⁸ At least not as long as we continue to force all law students to take courses in legal writing and to read the Federal Rules of Evidence.

107 PROPOSED ADVISORY COMMITTEE NOTE. 181 F.R.D. at 137, 138.

108 This is not the first time I have labored alone on this thankless and seemingly heretical quest. See James J. Duane, Some Thoughts on How the Hearsay Exception for Statements by Conspirators Should — And Should Not — be Amended, 165 F.R.D. 299, 304-12 (June 1996) (explaining that Federal Rules of Evidence ought to be amended to replace the redundant "coconspirator" with "conspirator," which means the same thing).

II.

Moving to more substantive recommendations, the first sentence proposed by the Advisory Committee for addition to Federal Rule of Evidence 103(a) is an excellent suggestion, and ought to be approved. But the two lines of "explanation" that have been proposed for that rule in the Committee Notes are in serious need of redrafting.¹⁰⁹ As currently written, they could not persuade any rational court to change its view of the matter, including the numerous state courts that continue to grapple with the same issue and might well profit from some clear federal guidance. Even worse, the proposed Notes create a trap for the unwary by falsely suggesting that a losing party on a pretrial evidentiary dispute never has any reason to renew the motion for the sake of protecting his prospects for appeal, contrary to the recent Supreme Court holding in Old Chief. I therefore recommend that the Committee replace its proposed explanation with some variation of the following improvement¹¹⁰:

109 In addition to the more substantial problems I have outlined in this conclusion, it would appear that the Committee's proposed citation to Cook v. Hoppin, 783 F.2d 684 (7th Cir. 1986), should now be deleted in light of the Seventh Circuit's rejection of that same opinion a few weeks ago in Wilson v. Williams, 161 F.3d 1078 (7th Cir. Nov. 30, 1998). The Committee should probably replace the Cook citation with one of the other Circuit opinions that have reached the same conclusion. For examples, see sources cited supra note 14.

110 The lines that I recommend for deletion or modification are the same lines I set forth above supra note 15 and accompanying text. Following standard convention, I have indicated here my recommended revisions by underlining proposed additions and lining through proposed deletions.

The amendment provides that a claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a). Any concerns about protecting the trial judge from "sandbagging" are most sensibly accommodated by the applicable scope of review, rather than a strict rule of appealability per se. See General Electric Co. v. Joiner , 522 U.S. 136, 140, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997) (evidentiary rulings are reviewable only for "abuse of discretion"); United States v. Old Chief, 519 U.S. 172, 179, n. 6, 117 S.Ct. 644, 651 n. 6, 136 L.Ed.2d 574 (1997) (appellate review of in limine evidentiary rulings must "evaluate the trial court's decision from its perspective when it had to rule and not indulge in review by hindsight"). Those deferential standards of review already give a party ample incentive to renew an objection or offer of proof any time the party's position might seem stronger in the more fully developed factual context of trial, without the harsh consequences of a rigid rule requiring parties to guess, upon possible penalty of complete defeat on appeal, whether they were entitled to rely on a seemingly definitive in limine ruling. See James J. Duane, Appellate Review of In Limine Rulings, , 182 F.R.D. 666 (1999). Moreover, where the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is often a pointless exercise, at least when the evidentiary issue turns on a pure question of law that can be decided just as accurately before trial. more a formalism than a necessity. See Fed.R.Civ.P. 46 (formal exceptions unnecessary); Fed.R.Crim.P. 51 (same). Favala v. Cumberland Engineering Co., 17 F.3d 987, 991 (7th Cir. 1994) ("once a motion in limine has been granted, there is no reason for the party losing the motion to try to present the evience in order to preserve the issue for appeal").

III.

As to the second sentence of the Committee's proposal, however, slightly more substantial revision is in order. I respectfully but strenuously urge the Committee to say nothing that would enshrine Luce into the rules, much less expand that holding further than the Supreme Court has done itself. That decision has been widely rejected by many objective commentators and state appellate courts. It is not easily reconciled with earlier Supreme Court decisions, and has never once been cited or revisited by the Court since the day it was decided. And two of its core assumptions have been called into question by intervening legal developments handed down by the Court itself.

The Advisory Committee is right to be concerned that a decision as important as Luce should not appear to have been overturned sub silentio. But that concern cannot justify a step so radical as a statutory codification, and dramatic expansion, of such a controversial decision. The enactment of such a rule would strip the Supreme Court of the power to reconsider Luce, and would deprive the lower appeals courts of the needed flexibility to work out for themselves whether there might be any sensible limits to its reach. Rather than a statutory codification of Luce and its progeny, far better would be the simple addition of a few lines to the Committee Notes to clarify that the one sentence being added to the Rule — the first sentence the Committee has proposed — is not intended to overrule or limit the reach of that case.¹¹¹

111 There is ample precedent for this sort of explanatory note. Even the Notes recently proposed for the amendment to Rule 103 end with a paragraph devoted entirely to a discussion of another closely related legal question that the amendment is not intended to resolve. See PROPOSED ADVISORY COMMITTEE NOTES, 181 F.R.D. at 137-38.

When a decision as provocative and dubious as Luce has been so extensively criticized by so many thoughtful and objective commentators and practitioners, we should hesitate before carving it into stone simply because of the warm reception it has received among the United States Courts of Appeals, which are the decision's intended beneficiaries and duty-bound adherents. There are times, as Chief Justice Rehnquist recently reminded us, when "laws are too important to be left to the judges."¹¹²

112 Chief Justice William H. Rehnquist, REMARKS AT THE ANNUAL MEETING OF THE AMERICAN LAW INSTITUTE, May 11, 1998,http://www.uscourts.gov/ALI.htm. The Chief Justice noted that he was paraphrasing Clemenceau's admonition that "war is much too serious a thing to be left to the military." Id.

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