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The National Trial Lawyers
Greater Lowell Bar Association

Motions in Limine

Some of the most important rulings a judge makes in a criminal case are issued before the jury is even selected. Before the trial begins, the attorneys for the parties file motions in limine (a Latin word that means “at the threshold”) in an effort to obtain pretrial rulings that will be favorable to their cases. These motions are argued before the judge shortly before the trial begins (in district court, they are typically argued on the same day of the trial while in superior court, they are usually argued a week or two ahead of time). There are limitless topics that can be addressed in a motion in limine and a smart lawyer knows how to try to limit or expand the evidence to his or her client’s advantage.

Some motions in limine are filed in every case and are uncontroversial. For example, in domestic violence cases, the defendant usually files a motion in limine requesting that the judge order the prosecutor and the Commonwealth’s witnesses to refrain from calling the complaining witness “the victim” in front of the jury. In Massachusetts, if a defendant refuses to take the Breathalyzer after being arrested for operating under the influence of alcohol, the prosecutor cannot tell the jury. Out of an abundance of caution, defense attorneys will file a motion in limine to request the judge officially instruct the Commonwealth witnesses not to mention the Breathalyzer at all in front of a jury.

Other motions in limine are contested. For example, in cases involving violent crimes, the prosecutor will often file a pretrial motion to allow the Commonwealth witnesses to testify about the defendant’s “prior bad acts.” If the defendant has a history of violence, the prosecutor wants the jury to know about it. The judge will conduct a hearing to determine if the alleged prior bad acts are admissible under the rules of evidence. If they are admissible, the judge will then decide if the value of the evidence outweighs any unfair prejudice that the defendant would suffer if the evidence was presented to the jury. If the judge decides to admit the defendant’s prior bad acts, it can be devastating to the defendant’s case. The defendant also might file a motion to admit evidence of prior bad acts – of the alleged victim.

Motions in limine are particularly important in cases involving expert witnesses. For example, the Commonwealth often calls experts to testify in cases where the defendant is accused of being a drug dealer. It is important for the defense attorney to file a pretrial motion to attempt to limit the scope of the expert’s testimony. While the expert may be permitted to discuss some of the cryptic conduct that is involved in drug dealing, the expert is not permitted to offer an opinion that the defendant is a drug dealer. It’s a subtle distinction and if the defense attorney does not file a motion in limine to restrict the evidence, the prosecutor will take advantage and elicit improper (and very damaging) testimony from the expert.

Attorneys also file pretrial motions in an effort to influence the types of jurors who will hear the case. The process to select a jury involves the judge questioning the potential jurors to ensure their backgrounds will allow them to fairly judge the defendant’s guilt or innocence. Therefore, in an OUI case, the defense attorney will request that the judge ask the potential jurors if they have ever contributed to organizations such as MADD or SADD (which would suggest they have a particularly strong opinion about drunk driving that might prevent them from being fair). In domestic violence or sexual assault cases, the defense attorney will want to know if the potential jurors were ever involved in an abusive relationship or sexually assaulted. By learning basic details about the potential jurors’ histories, the parties are in a better position to select a jury that will be completely fair and unbiased.

Cases are often won or lost by the judge’s rulings on the motions in limine. It is important for anyone charged with a crime to consult with an attorney who has experience litigating these types of motions.

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