## Facts

- Luce was tried in federal court for cocaine conspiracy and possession with intent to distribute under 21 U.S.C. §§ 846 and 841(a)(1).
- Before trial testimony, Luce moved in limine under Federal Rule of Evidence 609(a) to bar the government from using a 1974 state drug conviction to impeach him if he testified.
- Luce did not commit to testifying if the motion were granted and made no proffer of what his testimony would be.
- The district court ruled that if Luce testified and denied prior drug involvement, the government could use the 1974 conviction for impeachment.
- Luce chose not to testify, and the jury convicted him.
- The Sixth Circuit affirmed, refusing to review the Rule 609(a) ruling because Luce did not testify.
- The Supreme Court granted review to decide whether a non-testifying defendant may obtain appellate review of a denied Rule 609(a) motion in limine.

## Issues

1. Whether a criminal defendant who does not testify at trial may obtain appellate review of a trial court’s denial of a motion in limine to exclude impeachment by a prior conviction under Federal Rule of Evidence 609(a).

## Decision

- The Supreme Court affirmed.
- The Court held that to raise and preserve for review a claim of improper impeachment under Rule 609(a), the defendant must testify.
- Because Luce did not testify, the claimed error was not reviewable on appeal.

## Legal Principles

- Rule 609(a)(1)’s probative-value versus prejudicial-effect balancing cannot be meaningfully reviewed without an actual record of the defendant’s testimony.
- When the defendant does not testify, any claim of prejudice from an in limine impeachment ruling is speculative because it is uncertain:
  - what the defendant’s testimony would have been,
  - whether the trial court would have adhered to the in limine ruling in context,
  - whether the government would have attempted impeachment, and
  - whether the ruling caused the defendant not to testify.
- Allowing appellate review without testimony would impair harmless-error analysis and risk near-automatic reversals, creating incentives to file motions in limine to manufacture reversible error.
- Preservation of a Rule 609(a) impeachment claim requires that the defendant testify (and thereby create a concrete trial record for review).

## Conclusion

A defendant who declines to testify cannot obtain appellate review of a trial court’s in limine ruling permitting impeachment by a prior conviction under Rule 609(a), because the absence of testimony makes prejudice and harmlessness determinations too speculative.


Luce v. United States, 469 U.S. 38 (1984)