Trial PreparationWashington & Lee

School of Law

October 19, 2006

MOTIONS IN LIMINE

SAMPLE USING CHARACTER PROBLEMS

AND BAD ACTS

FIVE IMPORTANT AREAS

FOR MOTIONS IN LIMINE

▪1. Prior Business Conduct (404(b), 406)

▪2. Prior Conviction/Bad Act (404(b), 609)

▪3. Prior Drug Use (403, 404(b))

▪4. Prior Sexual Misconduct (404(b), 415, 609)

▪5. Untruthfulness (608)

Prior Business Conduct

(406, 404(b))

▪Start with 406 - Regular response, almost automatic.

▪Careful scrutiny by court before admission.

▪Examples: Medical history questionnaires in medical malpractice; Interview questions in discrimination cases or ADA cases; Traffic collision investigations; product inspection procedures.

Prior Conviction/Bad Act

(609, 404(b))

▪Witness or Accused?

▪In civil case distinction not relevant; both use 403 balancing test. “Only the accused in a criminal case is protected by the undue prejudice prong of Fed. R. Evid. 609" Green v. Bock Laundry Mach. Co. 109 S.Ct. 1981 (1986)

▪Not a conviction: can you use 404(b)?

Prior Drug Use

(403, 404(b))

▪Probative value must be substantially outweighed by danger of undue prejudice.

▪As character: prior drug use almost always excluded because of prejudicial impact.

▪Proper to admit if providing another basis under 404(b), such as another explanation for plaintiff’s emotional turmoil.

Prior Sexual Misconduct

(404(b), 415, 609)

▪404(b) useful in gender discrimination, sexual harassment, hostile workplace.

▪415 use if the civil case involves sexual assault or child molestation. Motion in Limine issue will often be whether the prior conduct qualifies as “offense of sexual assault”

▪609 use if prior misconduct resulted in a sentence of one year or greater.

Untruthfulness(608)

▪Untruthful character admitted in the form of opinion or reputation testimony.

▪Example: trial court abused it’s discretion when it excluded expert testimony that the plaintiff had an antisocial behavior disorder and hence a character for untruthfulness.

▪Prior shoplifting not evidence of untruthfulness.

▪No extrinsic evidence of conduct.

Other Benefits of Motions in Limine

Even When You Do Not Win

▪Flush out arguments/evidence.

▪Prepares the judge for the importance of issue when objection is made during trial.

▪Presents the judge with greater evidence than judge would hear during trial (105).

▪Concern by judge or conditional ruling may require opposing side to alter presentation of evidence.

Steps to a Successful MotionMake It Easy For The Judge

To Rule In Your Favor

▪1. Start motions when you take the case.

▪2. Be Clear, Brief and Accurate.

▪3. Always address 403 balancing test.

▪4. Present a proposed court order and instructions to the jury.

▪5. Protect or defeat the ruling by careful use of evidence and witnesses during trial.

OPENING STATEMENT

IT MUST BE INTERESTING ---

OR

IT WILL PUT EVERYONE TO SLEEP

NUMBER ONE RULE:

THEME/THEORY OF YOUR CASE

Rule # 2:

THEME/THEORY OF YOUR CASE

Rule #3:

THEME/THEORY OF YOUR CASE

PREPARATION AND ORGANIZATION:

▪1.REMEMBER THE WHOLE PICTURE

▪2.STATEMENTS CAN BE BINDING

▪3.PLAN USE OF DEMONSTRATIVE OR ACTUAL EXHIBITS

▪4.KEEP IT SIMPLE

▪5.KEEP IT ORGANIZED

▪6.KEEP IT INTERESTING

ORDER OF OPENING STATEMENT

▪1.PRIMACY/RECENCY

▪2.CHRONOLOGICAL OR,

▪3.OTHER SELF RELEVANT ORDER OR,

▪4.STORY ORDER OR;

▪5.CREDIBILITY

▪ ** IT MUST INTERESTING

▪ ** IT MUST BE ORGANIZED

▪ ** IT MUST BE SIMPLE

THE STRENGTH OF AN OPENING RELIES ON ITS USE OF FACTS

Not on Argument!

DESIGN OPENING FOR REPETITION OF IMPORTANT

FACTS.

THEME

ORDER OF THREES

PRIMACY/RECENCY

BFBC’S IN MIDDLE WITH EXPLANATION OR SURROUNDED BY GOOD FACTS

OPENING STATEMENT PITFALLS

1.LACK OF A THEME AND THEORY OF THE CASE

2.LACK OF ORGANIZATION

3.FAILURE TO USE FACTS CREATIVELY

3.BEING DULL

4.LACK OF CONVICTION

5.LACK OF PREPARATION

DIRECT EXAMINATION

IT CAN BE INTERESTING —

OR

CONFUSING AND POINTLESS!

IMPORTANT GOAL:

CREDIBILITY

PRETRIAL PREPARATION

ASSESSING YOUR CLIENT

▪KEEP AN OPEN MIND TO YOUR CLIENT TESTIFYING

▪NEVER COMMIT TO YOUR CLIENT TESTIFYING UNTIL THE LAST MINUTE

▪NEVER PUT A POORLY PREPARED CLIENT ON THE STAND

PREPARATION AND ORGANIZATION:

▪ Keep it Straight and Simple

▪REMEMBER THE WHOLE PICTURE

▪PLAN WITNESSES WITH EXHIBITS

▪KEEP IT INTERESTING

▪LEGALLY COMPLETE; IF YOU HAVE AN AFFIRMATIVE DEFENSE YOU MUST PROVE ALL THE NECESSARY ELEMENTS! (SELF-DEFENSE)

HOW TO BE PREPARED:PREPARE A SUMMARY FOR EACH WITNESS

Name: Mack the Knife

Exhibits: 2, 3, and 6

Key Testimony: Witness at scene, saw assault and told police suspect was white 6’3”

light buildImportance: High: client is medium build and 5’9”

ORDER OF DIRECT EXAMINATION:

▪PRIMACY/RECENCY

▪CHRONOLOGICAL OR,

▪OTHER SELF RELEVANT ORDER OR,

▪STORY ORDER OR;

▪CREDIBILITY

▪Make sure it is consistent with your Opening!

METHOD OF DIRECT EXAMINATION:

▪OPEN QUESTIONS▸WHO▸WHAT▸WHEN▸WHERE▸WHY▸HOW▸HAVE THE WITNESS USE VISUALS

WHEN POSSIBLE

LEADING QUESTIONS:

▪FRE 611(c) LEADING QUESTIONS SHOULD NOT BE USED ON THE DIRECT EXAMINATION OF A WITNESS EXCEPT AS MAY BE NECESSARY TO DEVELOP THE WITNESS’ TESTIMONY:

▸FOUNDATION

▸TRANSITION

▸TRACK REPAIR

DESIGN QUESTIONS FOR REPETITION OF IMPORTANT

FACTS:

▪FIRST - GET THE ANSWER FROM YOUR WITNESS.

▪SECOND - LOOP IT INTO THE NEXT QUESTIONS.

▪THIRD - IMPLANT IT INTO THE JURIES MIND.

DIRECT EXAMINATION PITFALLS:

▪LACK OF PREPARATION

▪LACK OF A THEME

▪FAILURE TO INCORPORATE THEORY

▪FAILURE TO LAY PROPER FOUNDATION

▪FAILURE TO ANTICIPATE/AVOID OBJECTIONS

▪LACK OF ORGANIZATION

▪NOT LISTENING TO THE ANSWER

▪BEING INFLEXIBLE

▪LACK OF PREPARATION

THE FEDERAL RULES OF EVIDENCESome Key Points

RULES 401-405, 607-609, 801-803

RULES 401 - 405

Relevancy and Its Limits

■Rule 401 Definition■evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402

Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

Rule 403

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

■Probative value is substantially outweighed by the danger of .....

Rule 404

Character Evidence not Admissible to Prove Conduct, Exceptions; Other Crimes

■(a) Character of evidence generally■(1) Character of accused

■(2) Character of victim

■(3) Character of witness

■(b) Other crimes, wrongs or acts

404(b)

• Other crimes, wrongs, or acts.• Evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action in conformity therewith.

• It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, …

404(b)

• Provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

• SIMILAR ACTS – SPECIFIC INSTANCES OF CONDUCT ARE ADMISSIBLE TO PROVE INTENT, MOTIVE, PLAN, DESIGN, OR ANY PURPOSE OTHER THAN CHARACTER, SO LONG AS THE PROBATIVE VALUE OF THE EVIDENCE, AS TO ITS NOT-FOR-CHARACTER PURPOSE, IS NOT SUBSTANTIALLY OUTWEIGHED BY THE RISK OF PREJUDICE, CONFUSION AND UNDUE DELAY.

One Suggested Test

• (1) the evidence must be offered for a proper [not-for-character] purpose; (2) the evidence must be relevant [for that purpose]; (3) the trial court must make a Rule 403 determination of whether the probative value of the [bad] acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed.R.Evid. 105, the trial court shall, upon request, instruct the jury that the evidence of similar acts is to be considered only for the proper purpose for which it was admitted.

Rule 405

Methods of Proving Character

■(a) Reputation or opinion

■(b) Specific instances of conduct

RULE 609

a(1) ANYONE BUT AN ACCUSED

EXCESS OF ONE YEAR OR DEATH (USUALLY FELONY).

a(1) ACCUSED

ANY CRIME IF COURT DETERMINES PROBATIVE VALUE OUTWEIGHS PREJUDICIAL EFFECT

a(3) ANYONE

IF DISHONESTY OR FALSE STATEMENT REGARDLESS OF PUNISHMENT

(b) TIME

TEN YEARS SINCE CONVICTION OR RELEASE,

LIMITED DETAILS:

THE FACT, NATURE, AND DATE. USUALLY LIMITED BEYOND THAT.

Rule 901. Requirement of Authentication or Identification

•(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.