The Motion in “Non” Limine: Should Lawyers Ever Move For Admissibility?


Lawyers regularly move, pre-trial, to exclude evidence.  Shouldn’t the same approach be used to ensure inclusion of proof?  The answer should be “of course,” but I recently came across a contrary view – one that is dead wrong.

A Judge [yes, a sitting judge] gave the following advice – “A motion in limine should only be used to seek the exclusion of evidence and not to ensure that an item of evidence is admissible.  If your opponent does not move to exclude the evidence, just go with it at trial.”   The Judge actually called a motion to admit evidence one in “non limine.”

That nomenclature  was the first clue that the Judge had it wrong.  She apparently thought “limine” means “to limit”  when instead it is Latin for beginning or threshold – and thus refers to timing and not content or scope.  Some courts have focused on the exclusionary aspect of such motions.  Luce v. United States, 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 462 (1984)(“ We use the term in a broad sense to refer to any motion…to exclude anticipated prejudicial evidence before the evidence is actually offered.”). However, they may apply to inclusion as well.  “Motions that seek…to obtain a ruling on the admissibility of evidence may be brought at any time before the introduction of the evidence to which they pertain.”  Pullum v. Robinette, 174 S.W.3d 124, 135 (Tenn. Ct. App. 2004).

But something more fundamental was at issue.  To this Judge, the adversary process was in play, and the onus was on the opponent of evidence to ensure exclusion or limitation.  Was she right in a tactical sense, regardless of what the law permits?

Before I share my thoughts, I provide comments elicited from a number of advocacy scholars, evidence experts, and judges.  Here they are (without attribution by name for sitting judges):

  • Federal Magistrate Judge: This is simply wrong — legally and from a best practice viewpoint as well.  Rule 104(a) encourages the opposite practice.  The second sentence is even worse since it precludes objections unless raised pretrial.
  • Professor Jay Leach (McGeorge): It’s nonsense. Easiest proof: any prosecutor (they tell me – I did civil) will move to allow defendant’s priors so as to be sure not to cause a mistrial by stepping in the gopher hole in opening statement or examination. Of course, defense counsel will also be moving to exclude so as to give best advice on pre-trial plea advisability … so maybe in practice the…generalization may be accurate. But we could go on with examples of when both civil and criminal practitioners will want to clear out the major underbrush in advance.
  • Dean Gary Gildin (Dickinson): I disagree with the judge’s proposition.  There are several reasons that, in appropriate circumstances, a motion for inclusion may be appropriate and tactically wise. First, seeking a ruling in advance with appropriate briefing furthers a more considered and informed ruling than obtaining a ruling on an oral objection lodged during the trial.  Second, knowing the ruling in advance of trial allows a more informed assessment of settlement offers. Third, knowing the ruling in advance of trial avoids having counsel’s opening statement interrupted by objection, especially harmful to credibility of the advocate if sustained.  Fourth, if the evidence could be deemed particularly prejudicial, seeking an advance ruling minimizes the risk of triggering a mistrial by referring to the evidence in opening or during a witness exam.  Obviously seeking an advanced ruling on inclusion is case-by-case/issue-by-issue, with variables such as how inflammatory the evidence is and assessment of the likelihood of an objection.
  • Professor Charles Rose (Stetson): I can see situations, primarily on potentially case dispositive issues, where I might want to seek the admission of evidence prior to trial. 404(b) evidence comes to mind immediately, and I’m sure if I thought for a minute or two I could come up with some others as well.  In some situations you need to know if it is coming in, on both sides – plea deals and settlements can result from those MILs – why would a competent judge let that opportunity slide?
  • Professor Abbe Smith (Georgetown): I think it’s a strategic choice whether to move in limine that certain evidence be admitted or offer the evidence at trial and deal with any objection at that time.  If the evidence is critical to the defense theory, you might want to know in advance if the trial judge will allow it.
  • Federal Appellate Judge: The advice is too broad.  Judges hate surprises and even more so when the surprise takes up valuable jury time.  If counsel has reservations about the admissibility of evidence I would encourage them to get approval in advance of trial.  This is particularly true when counsel represents the government in criminal cases and could cause a mistrial.
  • Professor Tony Bocchino (Temple): I cannot disagree with Her Honor more. I believe that the Motion in Limine should be more properly considered as a Pre-trial Motion on the Admissibility of Evidence at Trial.  All of pretrial evidentiary practice should have as its primary concern, determining what evidence will be admissible, and then prepare accordingly.  A lawyer who assumes that evidence will be admissible and  is surprised by its exclusion pursuant to trial objection is in the same position as a lawyer who fails to move in limine assuming that the judge will exclude the evidence upon objection at trial. 
  • Professor Louis Natali (Temple): For years the US filed Motions in Limine to seek court approval of dubious evidence it was offering. Perhaps it is different for Criminal defense lawyers but that  runs counter to my knowledge, experience and practice that I try to teach students and lawyers trying to get an education.
  • Professor David Erickson (Kent): We use proactive motions in limine, as a regular practice in Chicago.  First, it lets you know where the judge is  and even if you lose or the judge defers ruling, you have ‘planted the seed.’
  • Adjunct Professor David Mason (Washington U.): The motion in lime can and should be used to seek a ruling on admissibility. When there is disputed evidence that the proponent needs to reference in opening statement, it would be wise to bring the matter to the judge’s attention.
  • Professor Jared Rosenblatt (Kline School of Law, Drexel): A motion in limine may and should be made by either party.  As a former prosecutor, in criminal cases pre-trial motions were imperative to ensure the defendant’s right to a fair trial.  As an example, the prosecutor should seek permission to introduce prior bad acts on their case in chief and without a motion to preclude by the defense should not “just go with it at trial” and risk undue prejudice – that attitude is cavalier and bad practice.


So – the consensus is clear that the Judge’s advice was wrong.  Let me conclude with some additional observations of why this is ‘bad advice from the bench.’

First, the more complex the issue the more time a judge may need to make a proper ruling – so leaving a tough or close call to trial invites if not guarantees a more perfunctory assessment and an ill-conceived ruling.

Second, if the issue arises mid-trial and the discussion is abbreviated, counsel may never fully articulate the grounds for admissibility or properly proffer what is being sought to be presented.  Either deficiency may end up with a waiver of the claim on direct appeal under Federal Rule 103.

Finally, there is an ethical concern.  Section 107 of the RESTATEMENT OF THE LAW GOVERNING LAWYERS prohibits an attorney from “allud[ing] to any matter that the lawyer does not reasonably believe is relevant or that will not be supported  by admissible evidence.”  The weaker the basis for admissibility the more counsel may run afoul of this prohibition.

So – treat the notion of a motion in non limine as non advice.  The rule allows, and solid advocacy invites, pretrial motions to ensure admissibility.