A response to a motion in limine that I wish I had received

I hate motions in limine. A motion in limine is like a condom. It is intended to stop something before it starts. Thus, lawyers file motions in limine to stop the other party from presenting prejudicial evidence to a jury. The theory is that the judge will not be able to protect the moving party at trial by simply ruling on an objection. As they say, once the jury hears the evidence, and even if an objection is sustained, the bell cannot be unrung.

Most of the time, motions in limine are picky or stupid or raise concerns that no jury in their right mind would care about anyway. Thanks to a reader of this blog, who is also an experienced trial lawyer, I came across a silly motion in limine filed by “the government” and a funny response submitted by defense counsel. The exchange is priceless.

Click here for motion and here for the response. Enjoy


PS Thanks to John Bourgeois!  See also Howard Wasserman, WASSERMAN’S EVIDENCE, What not to do on a motion in limine (Thursday, October 31, 2013).

12 responses

  1. “The Government” should have known that one was coming. That’s like using the phrase “red herring” in your brief. It doesn’t matter what you say afterwards, someone is going to call your argument “a fish out of water.”

    That response was well-deserved. We’ll see if the court has the same sense of humor, though.

  2. The courts I work for have had to deal with one of these on every major case (A Felony) this Fall. It’s been odd. We’ve had two Motions in Limine (by the defendant) arguing that calling the defendant”the defendant” was prejudicial and that since the U.S. Constitution refers to them as “the accused” that would/should be preferable.

    The other was for a murder case where the Motion in Limine asked that the victim only be called the decedant and the murder be referred to only as “the death.” Again, on grounds of prejudice.

    I know it is just boundary pushing/testing by the attorneys, but it is a pain in the neck for those of us who try to be fair and take everything seriously.

    Still, a very odd trend, attacking the common nomenclature of the court.

  3. Unlike the state/prosecution/People/government, there is an alternative to the dehumanizing “defendant” term for the accused. I file a motion in every case that goes to trial asking the judge to prevent P from using anything other my client’s name to refer to her. Dehumanizing/depersonalizing your opponent is a common rhetorical strategy taught in debate/trial advocacy courses all over the world. When P calls my client “the Defendant” 100 times, it isn’t help her meet her burden in any way, but it is trying to shield the jury from the fact that my client is an actual human being, just like them (thereby lowering the burden of proof, although admittedly it is probably a slight amount).

    Unfortunately, you could spend all day explaining how presenting a defense works to your prosecutor and the former-prosecutor-now-judge, but they still don’t understand. If you honestly can’t understand why terms like “defendant” are prejudicial, you’re just being deliberately obtuse or you really don’t care about my client receiving a fair trial (not that you need to agree that terms like “defendant” should be barred).

    I’ve been successful in barring the use of “defendant” in the jury instructions, but the prosecutor still says defendant 100% of the time and will never acknowledge my client’s humanity.

    I’m not saying you’re wrong or that your comment isn’t thoughtful, I’m mostly just saying that stating that these anyone who advocates for such a ruling are opposed to the rest of us “who try to be fair and take everything seriously” is pretty disrespectful and arrogant, and fails to acknowledge the reality of the adversarial system.

  4. Mike D.,

    On a related point, you risk getting sued in federal court if you are a state judge who bans words like “rape” during a criminal trial. See Suit Tossed Vs. Judge Who Banned Words I handled that case and dismissed it before service (generating all sorts of gnashing of teeth by feminists)–that case is probably worth writing about one day, but not now.

    All the best.


  5. Matthew,

    I am sensitive to your point about the word “defendant.” Incidentally, the same problem arises in civil cases too!

    That is why in my “walk around” jury orientation before voir dire I explain that the words “plaintiff” and “defendant” are value neutral. I typically say something like this:

    “The word ‘plaintiff’ means to ‘pray for’ something, but not in a religious sense. ‘Prayer’ means to make a request for something. A ‘plaintiff’ is the party who brings suit in a civil or criminal case. The ‘plaintiff’ wants something. A ‘defendant’ in a civil or criminal case is one who opposes the ‘prayer’ (request for something) of the ‘plaintiff.’ The ‘defendant’ does not want to give the ‘plaintiff’ what the ‘plaintiff’ seeks. You are not good or bad if you are plaintiff or defendant. These are simply terms used to identify the two sides and they mean nothing more.”

    All the best.


  6. humor, wit, and sarcasm are often the most effective method (by far) to demonstrate the inanity and silliness of someone’s position. well done 🙂

  7. While I understand that little things can make a difference, I also think it is specious to assert that every defendant found not guilty overcame a steep grade of prejudice because of the terms used to refer to their position in the case. Defendant doesn’t imply guilt, in fact juries are told that defendants are presumed innocent. I’m sorry if this is just my further misunderstanding of the process, but the potential for prejudice arising from an ubiquitous term of identification seems minor at best, and relies on a gullible jury. Are you really arguing that a deliberating jury, contemplating a serious crime, is going to disregard the consequences to the defendant simply because of a rhetorical device used by one side of the adversarial process?

    It just doesn’t hold water with me. I commend you for zealously advocating for your clients, but energy spent trying to assert that defendants shouldn’t be called defendants does not seem like a good use of your time or energy on their behalf.

    I’m also a bit curious about the overall affect “humanizing” a defendant might have. Couldn’t it make the jury prejudiced unfairly as well, if a prosecutor referred to your client constantly as “Mr. Smith, who sits accused of murder by the State” over and over?Sure, he’s referred to by name, but now is more intimately tied to the charged offense. Is that so much better?

  8. And one further point, you file the same motion over and over, every trial? A boilerplate MoL attacking the fairness of the term defendant? Would you be willing to send me a copy? The motions I’ve gotten have been rather poorly crafted, vague wavings in the direction of prejudice without caselaw or any real syllogism. I have spent a good amount of time researching them (taking resources away from the court in the process, but there’s my arrogance rising up again! i could be redacting CI transcripts or addressing other motions regarding evidence, but in my disrespect for the system I spend hours of my time on a one page motion with no supporting law and only the crudest argument in favor).

    I assume you at least have some solid syllogisms, studies on semantics, etc. I’ve looked for anything that would forward this argument and I haven’t found anything that has enough gravity to push the argument forward. Anything you have that would substantiate a claim of unfair prejudice I would happily look at and use the next time that I have to work on one of these motions.

  9. Sounds to this poor, dumb Texan that if Tennessee’s Assistant District Attorney General had expended as much energy on doing her job as she did on seeking out excuses to be offended and to feel sorry for herself, she might have made a better prosecution.

    If working for the government is so demeaning to her, why is she?

    Courts can sanction lawyers for frivolous suits. Can they sanction lawyers for frivolous motions?

    Eric Hines

  10. Eric,

    A judge can impose sanctions for filing a frivolous motion if the judge gives notice and an opportunity to be heard. In this case, the prosecutor got what she deserved in the response, so an experienced judge probably would leave it alone, but enter an order like this:

    The “government” has filed a motion in limine. The defendant has submitted a response that tickles me pink. I could impose sanctions on the “government’s” lawyer for wasting my time and the time of her opposing counsel, but the otherwise able prosecutor has been sufficiently humiliated. Therefore,

    IT IS ORDERED that the government’s motion in limine is denied right after I stop laughing.

    By the Court:

    Richard G. Kopf
    Senior United States District Judge

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