Civil and criminal court litigators – beware. A new decision of the Pennsylvania Superior Court in a criminal appeal has radically upset the calculus lawyers must perform if they lose a motion in limine and want to decide whether to front (or “own”) the bad fact. Doing so may now cost a litigant the chance to claim error on appeal.
Until December 23, 2022, the sage advice was simple – if a motion in limine to exclude damning proof was denied, the party who lost would then own the fact. “It is common practice for the party who calls a witness who has a criminal record to bring out the prior conviction on direct examination…[an] anticipatory disclosure designed to reduce the prejudicial effect of the evidence if revealed for the first time on cross-examination[.]” 1 Ohlbaum on the Pennsylvania Rules of Evidence § 609.09 (2022). And if the trial was lost, appeal the in limine ruling.
And why was this right? Because fairness and our Rules of Evidence dictated this. Fairness? If an accused does not admit the damning fact on direct, it will come out much more harshly on cross and make the defendant and their lawyer appear dishonest. And the right to appeal afterwards? The defendant did what Rule 103, Pa.R.Evid. requires – to timely object or secure a definitive in limine ruling. That Rule requires nothing more.
And this was the law as applied by the Pennsylvania Supreme Court which conducted merits review of such claims even when the challenged proof was preemptively offered by the side it harmed until the Superior Court – omitting any reference to that having occurred in prior cases – held that “an appellant who receives an adverse evidentiary ruling can either preserve the issue for appeal by lodging an objection to the introduction of the evidence, or he can make a strategic choice to forfeit the objection and preemptively introduce the evidence himself. He cannot do both simultaneously.” Commonwealth v. Stevenson, 2022 Pa. Super. LEXIS 507, *8-9 (December 23, 2022).
When Mr. Stevenson was about to testify at his Robbery trial, his lawyer asked the judge to bar admission of a nearly 13 year old conviction for Burglary. The judge ruled the conviction admissible – a determination not the subject of this article but open to reasonable debate – and Stevenson took the stand. Following decades of common practice, the lawyer included the following in the direct examination:
Q: Mr. Stevenson, before I turn the floor over to the district attorney, back in 2005 – I know that was some time ago — but back in 2005 you had a prior matter where you pled guilty and sentenced on a burglary case; is that correct?
The jury convicted, and on post-sentence motions the trial judge denied relief but did so on the merits. On appeal, however, the Superior Court found the issue waived by the act of preemptive disclosure. In so doing, it relied heavily on United States v. Ohler, a decision of the United States Supreme Court that reached the same conclusion.
Is the Superior Court wrong? What is clear is that it relied on an inapposite case, one where a defendant chose as trial strategy to introduce his prior record and then later sought to challenge that decision on collateral attack. There, the defendant had not sought preclusion and the prosecutor had not pressed for admission.
A second error was in likening Stevenson’s action to a party that ‘opens the door’ to otherwise inadmissible proof. Again, the difference is stark – here, the trial judge had made the proof admissible so the door was already open.
Finally, there is an argument that the Superior Court intruded on the prerogative of the Supreme Court, which has sole authority to set or modify procedure in the trial and appellate courts.
A Petition for Allowance of Appeal has been filed on Mr. Stevenson’s behalf (this author is now pro bono co-counsel seeking review). It will be months before a determination of whether to allow the appeal is made; and if appeal is allowed possibly a year or two before argument and a decision. In the meantime be warned – whether the trial be civil or criminal, the choice is yours but singular – either own the bad evidence or wait for the appeal. For now, you can’t do both.