Motion in limine (M.R.E. 906(b)(13)).
Overview of motion in limine:
- Definition. A preliminary ruling on the admissibility of evidence made outside the presence of members.
- Procedure. Government or defense may make a motion in limine.
- Rulings. The decision when to rule on a motion
in limine is left to the discretion of the military judge. Discussion to R.C.M. 906(b)(13). Judicial economy and judicial accuracy constitute “good cause” which, under R.C.M. 905(d), allows a military judge to defer ruling on an in limine motion until presentation of the merits.
a. See, e.g.,United States v. Helweg, 32 M.J. 129 (C.M.A. 1991) (separate litigation of motion would have replicated large segments of a trial on the merits and in the judge-alone format; the judge is not required to hear the case twice).
b.See also United States v. Cannon, 33 M.J. 376 (C.M.A. 1991) (it is appropriate to defer ruling on the admissibility of evidence until such time as it becomes an issue).
- Common uses of a motion in limine.
a. Admissibility of uncharged misconduct.
See, e.g., United States v. Thompson, 30 M.J. 99 (C.M.A. 1990). Defense moved in limine
to suppress a sworn statement accused made one year before charged offenses wherein accused admitted to bad checks, extramarital affair and financial problems. Trial counsel intended to use statement as evidence of scheme or plan under M.R.E. 404(b).
b. Motions to keep out M.R.E. 413/414 evidence should be made in limine.
c. Admissibility of prior conviction for impeachment.
d. Admissibility of impeachment evidence as to credibility.
e. Admissibility of witness’s out-of-court statements.
f. Admissibility of a victim’s sexual behavior or predisposition under M.R.E. 412(b).
g. Motions to suppress evidence other than confessions, seizures, or identifications.
SeeR.C.M. 905(b)(3) (discussion).
h. Preemptive strike by the government to exclude anticipated favorable defense evidence. Examples: 1)United States v. Huet-Vaughn, 43 M.J. 105 (1995). The Government made 2 motions in limine and prevented the accused, an Army physician, from presenting evidence of motives and reasons for refusing to support Desert Shield and views on unlawfulness of the war on charge of desertion with intent to avoid hazardous duty.
2)United States v. West, 27 M.J. 223 (C.M.A. 1988). The Government’s motion in limine
limited the defendant’s testimony on his request for a polygraph and for sodium pentothal.
3)United States v. Rivera , 24 M.J. 156 (C.M.A. 1987). Defense failure to make an offer of proof does not constitute appellate waiver where Government makes a preemptive strike to exclude evidence and evidentiary issue is apparent from the record.
i. Preservation for appellate review of issue raised by motion in limine.
1) The accused must testify to preserve review of a denied motionin limine on the admissibility of accused’s prior conviction. United States v. Sutton, 31 M.J. 11, 21 (C.M.A. 1990). This holding reverses prior military practice and adopts the U.S. Supreme Court ruling in Luce v. United States , 469 U.S. 38 (1984). See also United States v. Gee , 39 M.J. 311 (C.M.A. 1994) (character testimony) and United States v. Williams, 43 M.J. 348 (1995).
2)United States v. Sheridan, 43 M.J. 682 (A.F. Ct. Crim. App. 1995). Counsel do not have to repeat objections during trial if they first obtain unconditional, unfavorable rulings from the military judge in out-of-court sessions.See M.R.E. 103(a)(2); R.C.M. 801(e)(1)(A) (finality of ruling); R.C.M. 906(b)(13). However, a preliminary, tentative ruling may require a subsequent objection to preserve issue for appeal. United States v. Jones , 43 M.J. 708 (A.F. Ct. Crim. App. 1995).
- Time. Rulings are generally made at the earliest possible time unless the military judge, for good cause, defers ruling until later in the trial. Written motions may be disposed of before arraignment and without an Article 39(a) session. A party may request oral argument or an evidentiary hearing concerning disposition of the motion. R.C.M. 905(h).
- Essential findings. R.C.M. 905(d). Where factual issues are involved, the military judge
shall state essential findings on the record.
- Reconsideration. R.C.M. 905(f). The military judge on his or her own, or at the request of either party, may reconsider any ruling not amounting to a finding of not guilty any time before authentication of the record. Read in conjunction with R.C.M. 917(f). Motion for a Finding of Not Guilty. Reconsideration of a granted motion for a finding of not guilty is not permitted.