Pretrial Motions in General

Fed. R. Crim. P. 12(e) sets forth guidelines for the decision of pretrial motions in criminal cases:

A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred . . . but no such determination shall be deferred if a party’s right to appeal is adversely affected.{footnote}See also United States v. Layton, 720 F.2d 548, 553 (9th Cir. 1983)
 ("[T]he district judge must balance a desire to preserve  the
 government’s right of appeal against the inefficiency created by
 conducting a mini-trial before the actual trial.").  {/footnote}

On the government’s right of appeal, see below.

Motions in Limine

Motions in limine are largely a creature of common law.{footnote}See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 723 F.2d 238 (3d Cir. 1983)(endorsing use of motions in limine due to benefits of efficiency and briefing); Department of Public Works & Buildings v. Roehrig, 45 Ill. App. 3d 189, 359 N.E.2d 752 (5th Dist. 1976)(not authorized by statute or rule).

But see Ill. Rev. Stat. ch. 38, & 114-11 et seq. (motions in limine in criminal cases).

See generally 63 ALR3d 311, 94 ALR2d 1087.{/footnote}  In limine rulings may often be premature where the objection is to the relevance of evidence,{footnote}Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 723 F.2d 238 (3d Cir. 1983); United States v. Witschner, 624 F.2d 840 (8th Cir. 1980)(evidence of defendant’s other crimes).{/footnote} and it has been held that they should be used only in exceptional cases.{footnote}Bradley v. Caterpillar Tractor Co., 75 Ill. App. 3d 890, 394 N.E.2d 825 (5th Dist. 1979).{/footnote}  On the other hand, failure to file a motion to suppress may result in a finding of waiver.{footnote}United States v. Mangan, 575 F.2d 32, 39, 41 (2d Cir. 1978).{/footnote}  Whether to entertain a motion in limine before trial is a matter within the trial court’s discretion.{footnote}United States v. Oakes, 565 F.2d 170 (1st Cir. 1977); United States v. Layton, 767 F.2d 549 (9th Cir. 1985).{/footnote}  Where a criminal defendant moves to exclude impeachment evidence in the event he should take the stand, and the motion is denied, the denial may only raised on appeal if the defendant testifies and is impeached.  See IMPEACHMENT—Appeal.

Pretrial hearing.  The trial court, in its discretion, may hold a pretrial hearing as to the admissibility of prosecution evidence.{footnote}United States v. Pepe, 747 F.2d 632 (11th Cir. 1984).{/footnote}  Such hearings are sometimes called James hearings.{footnote}See United States v. James, 590 F.2d 575 (5th Cir. 1979){/footnote}  The defendant’s testimony at such a hearing is not admissible as substantive evidence at trial, but may be admitted as impeachment.{footnote}United States v. Quesada-Rosadal, 685 F.2d 1281 (11th Cir. 1982).{/footnote}

Necessity of Renewing Motion at Trial.  As a tactical matter, where a motion in limine is denied, a party should ordinarily renew the motion at trial so that the court may rule with a better-developed factual background.  Some courts have held that the failure to renew an objection at trial constitutes waiver.{footnote}Wilson v. Waggener, 837 F.2d 220 (5th Cir. 1988); Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980); United States v. Kandiel, 865 F.2d 967 (8th Cir. 1988); Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322 (8th Cir. 1985); Thweatt v. Ontko, 814 F.2d 1466 (10th Cir. 1987); 76 ALR Fed. 619.

But see Cook v. Hoppin, 783 F.2d 684 (7th Cir. 1986)(unsuccessful movant does not waive objection by offering subject evidence himself).{/footnote}  Others have held that a properly presented motion in limine preserves the objection.{footnote}People v. Pratt, 759 P.2d 676, 685 n. 5 (Colo. 1988){/footnote} 

The majority approach is a flexible one, taking into account the nature of the issue and the manner in which it was argued and ruled upon.{footnote}American Home Assurance Co. v. Sunshine Supermarket, 753 F.2d 321 (3d Cir. 1985); Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir. 1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (objection to hynotically enhanced testimony properly preserved); Palmerin v. Riverside, 794 F.2d 1409 (9th Cir. 1986)(no objection required where prior ruling on motion was definitive); United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir.), cert. denied, __U.S.__, 114 S.Ct. 334, 126 L.Ed.2d 279 (1993).

{/footnote}  These courts have held  that a motion in limine preserves an objection where the evidentiary issue (1) is fairly presented to the trial court;{footnote}But see Greger v. International Jensen, Inc., 820 F.2d 937, 941-42 (8th Cir. 1987)(court’s ruling during pre-trial conference without full argument or briefing neevertheless obviated need for objection at trial where court’s ruling was clear and question was not one whose nature and relevance only became clear at trial).{/footnote} (2) is the type of issue than can be finally decided in a pretrial hearing, wihtout the necessity of a detailed factual context,{footnote}See also Greger v. International Jensen, Inc., 820 F.2d 937, 941-42 (8th Cir. 1987)(court’s ruling during pre-trial conference as to scope of damages evidence obviated need for objection at trial where court’s ruling was clear and question was not one whose nature and relevance only became clear at trial).
{/footnote} and (3) is ruled upon unequivocally.{footnote}See also Doty v. Sewell, 908 F.2d 1053, 1056 (1st Cir. 1990)(motion insufficient where court declined to rule until trial); United States v. Miles, 889 F.2d 382, 384 (2d Cir. 1989)(per curiam)(tentative ruling prior to witness’ examination did not eliminate neeed for objection); Greger v. International Jensen, Inc., 820 F.2d 937, 941-42 (8th Cir. 1987)(court’s ruling during pre-trial conference as to scope of damages evidence obviated need for objection at trial where court’s ruling was clear and question was not one whose nature and relevance only became clear at trial); McEwen v. City of Norman, 926 F.2d 1539 (10th Cir. 1991)(where court expressly reserved ruling, plaintiff’s failure to renew objection resulted in waiver).
{/footnote}   Those objections which depend in large part upon the overall factual context of a trial are likely to be deemed waived.  Objections of undue prejudice, for example, are generally deemed waived unless renewed at trial.{footnote}United States v. Birbal, 62 F.3d 456, 464-65 (2d Cir. 1995); United States v. Cobb, 588 F.2d 607, 612-13 (8th Cir. 1978)(admissibility of conviction older than ten years).{/footnote}

It has also been held that an unsuccessful motion in limine seeking to prevent a line of questioning does not eliminate the requirement that counsel object to specific questions asked.{footnote}Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980).{/footnote} 

Motions to Strike

Where a proper question has been asked of a witness but the answer is improper, an immediate objection and a motion to strike the improper testimony must be made,{footnote}United States v. Gibbs, 739 F.2d 838, 849 (3d Cir. 1984)(en banc), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985); Terrell v. Poland, 744 F.2d 637, 639 (8th Cir. 1984.{/footnote} unless the ground for the objection was not disclosed until later.{footnote}Benjamin v. Peter’s Farm  Condominium Owners Ass’n, 820 F.2d 640, 642 n. 5 (3d Cir. 1987)(motion to strike expert testimony, made after cross-examination revealed improper basis for opinion, held timely). {/footnote}   A motion to strike  which is not timely made is deemed to have waived the objection to the evidence.{footnote}United States v. Gibbs, 739 F.2d 838, 850 (3d Cir. 1984)(objection to testimonial hearsay first raised in motion in strike after close of government’s case deemed waived); Terrell v. Poland, 744 F.2d 637, 639 (8th Cir. 1984)(motion to strike exhibit raised at close of evidence deemed waived).{/footnote}  See also APPEAL–Waiver by Failure to Object; OBJECTIONS.
 
Appeal

On appeal, the district court’s decision whether to rule on an evidentiary motion before rather than during trial is reviewed for an abuse of discretion.{footnote}US v. Abraham, 541 F.2d 624, 626 (6th Cir. 1976); United States v. Witschner, 624 F.2d 840 (8th Cir. 1980); United States v.  Layton, 720 F.2d 548, 553 (9th Cir. 1983); United States v. York, 722 F.2d 715 (11th Cir. 1984) [can Def. appeal ruling?]  {/footnote}  In federal court, the government’s right to appeal is governed by 18 U.S.C. Sec. 3731.

The purpose of § 3731 was "to remove all statutory barriers to Government appeals and to allow appeals whenever the constitution would permit."{footnote}United States v. Helstoski, 442 U.S. 477, 487 n.6, 99 S.Ct. 2432, 2439 n.6, 61 L.Ed.2d 12 (1979) (quoting United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018-19, 43 L.Ed.2d 232 (1975); United States v. Layton, 720 F.2d 548, 553 (9th Cir. 1983)).
{/footnote}  Defendants may not take an interlocutory appeal from an order denying a motion to suppress evidence.{footnote}DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962); Cogen v. United States, 278 U.S. 221, 223, 49 S.Ct. 118, 119, 73 L.Ed. 275 (1929); United States v. Dorfman, 690 F.2d 1217, 1222 (7th Cir. 1982).  {/footnote}  It is immaterial that the challenge is brought under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520.{footnote}Bova v. U.S, 460 F.2d 404, 408 (2d Cir. 1972);  In re Rom, 459 F.2d 15, 16 (3d Cir. 1982); Application of U.S., 427 F.2d 1140, 1141-42 (5th Cir. 1970); United States v. Smith, 463 F.2d 710, 712 (10th Cir. 1972).{/footnote}  Title III provides for interlocutory appeals only on the part of the government.

Related Articles

APPEAL; OBJECTIONS.