A Judge [yes, a sitting judge] gave the following advice – “A motion in limine<\/em> should only be used to seek the exclusion of evidence and not to ensure that an item of evidence is admissible.\u00a0 If your opponent does not move to exclude the evidence, just go with it at trial.”\u00a0\u00a0 The Judge actually called a motion to admit evidence one in \u201cnon limine<\/em>.\u201d<\/p>\n That nomenclature\u00a0 was the first clue that the Judge had it wrong.\u00a0 She apparently thought \u201climine\u201d means \u201cto limit\u201d\u00a0 when instead it is Latin for beginning or threshold \u2013 and thus refers to timing and not content or scope.\u00a0 Some courts have focused on the exclusionary aspect of such motions.\u00a0 Luce v. United States<\/u>, 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 462 (1984)(\u201c We use the term in a broad sense to refer to any motion\u2026to exclude anticipated prejudicial evidence before the evidence is actually offered.\u201d). However, they may apply to inclusion as well.\u00a0 \u201cMotions that seek\u2026to obtain a ruling on the admissibility of evidence may be brought at any time before the introduction of the evidence to which they pertain.\u201d\u00a0 Pullum v. Robinette<\/u>, 174 S.W.3d 124, 135 (Tenn. Ct. App. 2004).<\/p>\n But something more fundamental was at issue.\u00a0 To this Judge, the adversary process was in play, and the onus was on the opponent of evidence to ensure exclusion or limitation.\u00a0 Was she right in a tactical sense, regardless of what the law permits?<\/p>\n Before I share my thoughts, I provide comments elicited from a number of advocacy scholars, evidence experts, and judges.\u00a0 Here they are (without attribution by name for sitting judges):<\/p>\n <\/p>\n So \u2013 the consensus is clear that the Judge\u2019s advice was wrong.\u00a0 Let me conclude with some additional observations of why this is \u2018bad advice from the bench.\u2019<\/p>\n First, the more complex the issue the more time a judge may need to make a proper ruling \u2013 so leaving a tough or close call to trial invites if not guarantees a more perfunctory assessment and an ill-conceived ruling.<\/p>\n 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.\u00a0 Either deficiency may end up with a waiver of the claim on direct appeal under Federal Rule 103.<\/p>\n Finally, there is an ethical concern.\u00a0 Section 107 of the RESTATEMENT OF THE LAW GOVERNING LAWYERS prohibits an attorney from \u201callud[ing] to any matter that the lawyer does not reasonably believe is relevant or that will not be supported\u00a0 by admissible evidence.\u201d\u00a0 The weaker the basis for admissibility the more counsel may run afoul of this prohibition.<\/p>\n So \u2013 treat the notion of a motion in non limine<\/em> as non<\/em> advice.\u00a0 The rule allows, and solid advocacy invites, pretrial motions to ensure admissibility.<\/p>\n","protected":false},"excerpt":{"rendered":" Lawyers regularly move, pre-trial, to exclude evidence.\u00a0 Shouldn\u2019t the same approach be used to ensure inclusion of proof?\u00a0 The answer should be \u201cof course,\u201d but I recently came across a contrary view \u2013 one that is dead wrong. A Judge [yes, a sitting judge] gave the following advice – “A motion in limine should<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,7,11],"tags":[],"coauthors":[238],"class_list":["post-1878","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-evidence","category-trial-advocacy"],"yoast_head":"\n![\"\"](\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2016\/12\/limine-300x224.jpg\")
<\/p>\n\n