Practically Speaking
The limine trap
Getting evidence rulings before trial - motions in limine - can
be very useful, but they have some serious limitations.
By James W. McElhaney
Andy Lundquist stormed into the Brief Bag on Friday evening
with fire in his eyes. "Angus," he said, "it's all your fault!"
Angus looked over the top of his glasses at Lundquist. "What's the
matter, Andy?" he said.
"If it hadn't been for you, I never would have made that dumb motion
in limine in the first place. Stupidest thing I've ever done."
"I get the idea that there's more to this story," Angus said.
"There's a lot more, and it starts with you talking about motions in
limine - getting evidence rulings before trial, and all that," said
Andy.
"Motions in limine can be very useful," said Angus, "but they have
some serious limitations."
"Well, I just got burned by one of those 'serious limitations' in
Judge Alice Redding's court," Andy said.
"What happened?" said Angus.
"Judge Redding assigned me to represent a man who's on trial for
armed robbery, and he's got a four-year-old prior conviction for
burglary," Andy said.
"So I make a motion in limine to keep the prosecution from using the
burglary conviction to impeach my defendant if he takes the stand and
testifies on his own behalf. And frankly, I was surprised when Judge
Redding granted my motion. The prosecutor - 'Mad Dog' Morrison - was
furious."
"You mean Charlie Morrison?" Angus said.
"That's the one," said Andy. "He filed a brief, asked Judge Redding
to reconsider, and that just seemed to get her even more determined to
stick to her ruling. So when I told my defendant about it, he got all
excited. Said he would positively take the stand to testify."
"And?" said Angus.
"When I gave my opening statement, I told the jury that they
shouldn't just take the prosecutor's word for it. I said that the
defendant couldn't wait to take the witness stand to tell them what
really happened. And I told them they had to keep an open mind until
they had heard all of the evidence."
"You promised the jury that the defendant would take the witness
stand?" Angus said.
"Absolutely," said Andy. "I figured it would make a bigger impact
than just hitting the usual platitudes."
"It may well make a bigger impact," said Angus. "But it sure tends to
lock you in. Promising that the defendant will testify is an unusual
thing to do, except in an extraordinary case."
"I think I'm finding that out," said Andy.
"So then what happened?" Angus asked.
"Today the prosecution rested its case, and I had just called the
defendant to the stand - he hadn't even stood up to take the oath - when
Judge Redding called Mad Dog Morrison and me up to side-bar. She told us
she had reconsidered her ruling on my motion, and was going to permit
the prosecution to cross-examine the defendant with his burglary
conviction."
That's when I jumped in. "Why in the world would she sandbag you like
that - letting you rely on her ruling, only to snatch it away at the
last possible minute?"
"It could have been worse," Angus said. "She could have waited until
after the defendant's direct, and then changed her mind. This way Andy's
client still has an option - at least in theory."
"I know that," I said, "but I still want to know why she did it."
"I've been thinking about that," said Andy. "I'm not sure, but I
think the whole thing might have been an effort to get a plea
bargain."
"How do you figure?" I asked.
"I don't think Judge Redding likes to try criminal cases," Andy said.
"In fact, when she granted my motion in limine in the first place, it
may have been to pressure Mad Dog Morrison into considering a plea
bargain."
"Did it work?" I asked.
"Well, kind of," said Andy. "Mad Dog almost sounded reasonable for a
while, but the same ruling that made him willing to talk plea bargain
made my defendant think he could win at trial. So now maybe Judge
Redding is punishing my defendant for not pleading to a lesser
offense."
"So did the defendant still take the stand after Judge Redding
changed her ruling?" Angus asked.
Andy smiled for the first time since he walked in. "No, not yet. He
said he wanted to think it over, so I called another witness first."
"Not a bad idea," I said.
"For all their value," Angus said, "this is just one of the problems
you can have with a motion in limine."
I stopped talking and started writing. Deadline time was just a week
away, and I needed something for the column. Here are my notes.
Advantages of motions in limine
To start with, we like motions in limine for a number of reasons.
First is simple planning. You have a much better idea of how to organize
your case, how to present your facts, and how to question your witnesses
if you know whether or not some key bits of evidence are going to be
admitted.
Second is prevention. There is no cure that will make improperly
admitted evidence go away. You can't unring the bell, squeeze the
toothpaste back into the tube, or re-bag the cat. Rather than giving any
real help, the cautionary instruction is like the famous order to not
think of pink elephants. It serves most admirably to focus the mind on
the improper subject.
Third is resolving the dispute. Lots of cases settle after opening
statements or right after some key evidence is admitted. The court's
ruling on a motion in limine can give even a young pit-bull advocate a
sobering look at her case.
And it's useful to know that the motion in limine is not just for
keeping evidence out. You can also use it affirmatively - getting a
ruling that evidence is admissible.
Problems with motions in limine
But then there are the problems. A ruling on a motion in limine
is:
- discretionary
- modifiable
- may or may not make a record
- may or may not be the basis for appeal.
1)The first problem is whether or not you can even get a ruling from
the judge. Deciding a motion in limine is discretionary - just the
opposite of what happens in trial. When a witness is testifying in the
middle of a hearing and you make an objection, the judge has to make a
ruling.
Not that some judges won't try to dodge the job if they can. Some are
masters at creative evasion:
Plaintiff's Counsel to Witness: What did Ms. Ramierez
say?
Defense Counsel: Objection, Your Honor.
The Court: Grounds?
Defense Counsel: It's hearsay, Your Honor.
The Court: Any response?
Plaintiff's Counsel: It's not for its truth, Your Honor.
The Court: All right, let's move it along.
But even then, you can gently hold the judge's feet to the fire:
Defense Counsel: I'm sorry, Your Honor, but I didn't hear
the court's ruling.
Or even: Your Honor, may we have a ruling?
But the judge does not have to give a ruling on a motion in limine.
Lots of evidence questions that seem intractable puzzles before trial
are easier to solve in the middle of the hearing, so the judge may put
them off.
Ten or 15 years ago, motions in limine were not nearly as popular as
they are today, which is another problem. Lots of lawyers inundate the
judge with motions for evidentiary rulings on the eve of trial - which
almost guarantees that the judge will dodge ruling on them until when
the questions actually come up in trial.
Just because the judge refuses to rule on your motion in limine does
not mean you have to wait until the poisoned question is asked before
you can object. Under Rule 104(c) of the Federal Rules of Evidence, you
can renew your motion in trial before the witness takes the stand or
even in the middle of her testimony. And Rule 104(d) gives the accused
in a criminal case the right to a ruling on preliminary matters outside
the presence of the jury:
"Hearings on the admissibility of confessions shall in all cases be
conducted out of the hearing of the jury. Hearings on other preliminary
matters shall be so conducted when the interests of justice require, or
when an accused is a witness and so requests."
2)The second problem is that a ruling on a motion in limine is
modifiable.
Some judges make it explicit. "I'm granting the plaintiff's motion
and excluding this evidence, unless, of course, the plaintiff should do
something that opens the door."
But whether the ruling sounds tentative or final, it can be modified
precisely because the situation can change - doors can be opened or
closed. New issues can arise and old ones can go away when you're in
trial.
Which means it is perilous to rely on a judge's ruling on a motion in
limine.
3)The third problem is that the motion in limine and the judge's
ruling may or may not be enough to make a record of your objection.
How could that be?
Through a maddening progression of superficial logic, some courts
insist that you must renew your objection at trial or it is waived.
Suppose you make a motion in limine to exclude a line of testimony or
a series of exhibits. The court denies your motion. When the evidence is
offered at trial, you make no further objection, figuring you have
already objected and have no desire to underscore it in the hearing of
the jury. Haven't you made your record?
Nope, say a number of courts. Since the ruling could have been
modified, it wasn't a final ruling. Since it wasn't a final ruling, you
didn't make a record, even though it is included in a written pre-trial
order.
But other courts take the opposite position. They believe that the
pre-trial ruling stands until it is changed. That lets you object again
if you want - trying for one last chance. But you don't have to renew
your objection at trial if you don't want to. Under this theory,
repeating the objection in trial is like taking exception to a ruling
the court has already made - which Rule 46 of the Federal Rules of Civil
Procedure (and the rules in most state courts) say you don't have to
do.
So how do you handle the problem?
Either make sure you know what the rule is in your court, or you
renew your objection in trial as a matter of course.
4)The fourth problem is, the motion in limine and the court's ruling
may or may not be the basis of appeal. In Luce v. United
States, 469 U.S. 38 (1984), the defendant made a motion in limine
to keep the prosecutor from using a prior narcotics conviction to attack
his credibility, should he take the stand.
The trial judge denied the motion, and relying on the ruling, the
defendant decided not to testify. But even though the defendant made a
record, the U.S. Supreme Court said the trial court's ruling was not a
basis for appeal.
Wait a minute, you say. How could they do that?
Because the U.S. Supreme Court thought Mr. Luce had to actually get
on the stand and be impeached with his old conviction - otherwise he
wouldn't be hurt by the trial court's ruling.
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James W. McElhaney is the Joseph Hostetler Professor of Trial
Practice and Advocacy at Case Western Reserve University School of Law,
a frequent speaker on trial techniques and the author of three highly
acclaimed books on litigation. He writes a monthly column, "Litigation,"
in the ABA Journal. This article is reprinted here with
permission.
Copyright© 1997 and 1998
by James W. McElhaney.
All rights reserved.
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If you are troubled by this logic, you're in good company. One of the
most important decisions a defendant can make in a criminal case is
whether to testify. If you are entitled to a ruling - but you have to
get on the stand and be attacked with the improper testimony to be able
to raise the issue on appeal - then what's the point of getting the
ruling in the first place?
When Kentucky adopted its version of the Federal Rules of Evidence,
it made a new rule that solves some of these problems. Kentucky Rules of
Evidence 103(d) says:
"A party may move the court for a ruling in advance of trial on the
admission or exclusion of evidence. The court may rule on such a motion
in advance of trial or may defer a decision on admissibility until the
evidence is offered at trial. A motion in limine resolved by order of
record is sufficient to preserve error for appellate review. Nothing in
this rule precludes the court from reconsidering at trial any ruling
made on a motion in limine."
When Angus was finished, Andy said, "Nice rule, but it doesn't solve
my problem. The motion in limine is still a modifiable ruling.
"But it gives me an idea. I think I'll give Alice Redding a chance to
go back to her original decision.
"On Monday morning I'm going to put my defendant on the stand -
outside the presence of the jury - just like it says in Rule 104(c) of
the Federal Rules of Evidence. I'm going to do an offer of proof. I know
the defendant's going to say he wants to testify, but isn't going to do
it if the prosecutor can cross-examine him with his record.
"Then I'm going to ask Judge Redding to exclude the evidence."
"Neat idea," I said. "What do you think, Angus?"
"Depends on whether you can make Judge Redding feel guilty without
accusing her of some awful misconduct," said Angus.
"You mean the way I blamed you when I walked in here?" Andy said.
"I didn't notice anything," said Angus.
"Me neither," I said.
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