Trial Preparation
Washington & Lee
School of Law
October 19, 2006
MOTIONS IN LIMINE
SAMPLE USING CHARACTER PROBLEMS
AND BAD ACTS
FIVE IMPORTANT AREAS
FOR MOTIONS IN LIMINE
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1.
2.
3.
4.
5.
Prior Business Conduct (404(b), 406)
Prior Conviction/Bad Act (404(b), 609)
Prior Drug Use (403, 404(b))
Prior Sexual Misconduct (404(b), 415, 609)
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 Motion
Make 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
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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! (SELFDEFENSE)
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 build
Importance:
High: client is medium build and 5’9”
ORDER OF DIRECT
EXAMINATION:
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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:
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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 EVIDENCE
Some 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-FORCHARACTER 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.