Either party may seek an advanced ruling regarding a proposed item of evidence prior to trial. The party seeking such will do so by motion in limine. A proponent of evidence may move in limine so as to determine, prior to trial, whether some evidence will be admissible at trial. This is a smart move as it eliminates risk of an objection to your evidence being sustained at trial or worse yet a mistrial granted by opposing counsel. More frequently, the opponent of evidence will move pre-trial to suppress evidence. An advance ruling to suppress evidence is important as it eliminates any bias jurors may form after hearing of such evidence from a witness despite an objection being sustained at trial. A limiting instruction will not cure such evidence from the jurors mind.
Motions in limine are best presented in writing prior to trial. However, in many jurisdictions motions in limiine may be heard orally prior to trial in court or in chambers. The judge may overrule the objection, may enter an order prohibiting mention of the evidence, or finally may enter a preliminary order. A preliminary order prevents the proponent from mentioning the evidence to the jury without the judge’s consent. A preliminary order allows the proponent to request a hearing mid-trial out of the jury’s presence. Preliminary orders are issued when the judge finds that the evidence is prejudicial but wants to wait to make a final ruling until the state of the evidence becomes apparent at trial.
The procedure for presenting a motion in limine include the following. First the opponent states his or her intent to move in limine to exclude specified evidence. Secondly the opponent states that the he or she has reason to believe the proponent possesses the evidence and will offer the evidence at trial. Third, the opponent states the grounds for which the evidence is inadmissible. Fourth, the opponent explains why an ordinary trial objection would not suffice. Last, the opponent presents the legal argument in favor of the motion.
Counsel must make necessary objections at trial if the court is unwilling to entertain a pretrial motion in limine. Counsel should stand to make an objection and preface the objection with “Your Honor”. It is also important to be timely with the objection so as to put the objection on the record prior to the witness responding to any improper questioning. If counsel fails to object in a timely matter then counsel waives the objection. Counsel should indicate specifically what he or she is objecting to. Finally counsel should indicate the legal ground for such objection.
There will be times when counsel will need to use a motion to strike for purposes of suppressing evidence. For instance, when counsel asks a proper question but the witnesses answer exceeds the scope of the question asked. Another instance is when the witness answers so rapidly that the opponent doesn’t object. The third scenario is where the witness gives testimony which appears to be proper but later turns out to be improper testimony. In these circumstances, the opponent can request that the witnesses statements be stricken from the record. If the judge grants the motion to strike, counsel should follow up with a curative request to the judge that the jurors disregard the statements.