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Evidence — prior convictions — waiver

By: WISCONSIN LAW JOURNAL STAFF//September 23, 2011//

Evidence — prior convictions — waiver

By: WISCONSIN LAW JOURNAL STAFF//September 23, 2011//

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United States Court of Appeals

CIVIL

Evidence

Prior convictions; waiver

In a civil case, a party who introduces evidence of his own prior convictions waives the right to appeal an order that they are admissible.

“The logic of Ohler applies with equal force in both criminal and civil cases. The tactical nature of each party’s decisions is the same; indeed, the stakes are higher in a criminal case, and still the Supreme Court found waiver. We note that every circuit to have addressed the question has applied Ohler in civil cases. See, e.g., Bowoto v. Chevron Corp., 621 F.3d 1116, 1130 (9th Cir. 2010); Estate of Smith v. City of Wilmington, 317 F. App’x 237, 239 n.1 (3d Cir. 2009); Canny v. Dr. Pepper/ Seven-Up Bottling Grp., Inc., 439 F.3d 894, 904 (8th Cir. 2006); Ludwig v. Norfolk So. Ry. Co., 50 F. App’x 743, 751 (6th Cir. 2002). In Canny the Eighth Circuit observed that a civil litigant should not be allowed to ‘avoid the consequence of its own trial tactic by arguing it was forced to introduce the evidence . . . to diminish the prejudice.’ 439 F.3d at 904. We agree. Because Clarett introduced the evidence of her retail theft and obstruction convictions herself, she is precluded from challenging their admissibility on appeal.”

Affirmed.

09-2805 Clarett v. Roberts

Appeal from the United States District Court for the Northern District of Illinois, Grady, J., Sykes, J.

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