Motions in Limine and Motions to Exclude Persons From Trial

• Pages: 425-458
• Author: Carl T. Grasso,Edward L. Birnbaum,Ariel E. Belen

MOTIONS IN LIMINE,

EXCLUDE PERSONS

13-1

CHAPTER 13

MOTIONS IN LIMINE AND MOTIONS

TO EXCLUDE PERSONS FROM TRIAL

I. MOTIONS IN LIMINE

A. General Points

§13:01 Purpose

§13:02 Advantages

§13:03 Disadvantages

§13:04 No Binding Effect on Retrial After Mistrial

§13:05 Potential Relief

§13:06 Common Motions to Exclude Evidence

§13:07 Other Common Motions in Limine

§13:08 Motion Concerning High-Low Agreements

B. Procedure

§13:20 Timing

§13:21 Based on Opening Statement

§13:22 How to Make the Motion

§13:23 Responding to Cour t’s Ruling

C. Appellate Review

§13:30 Not Ordinarily Reviewable

§13:31 When Reviewable

II. MOTION EXCLUDING PERSONS FROM TRIAL

§13:40 Reasons for Motion

§13:41 Court’s Discretion

§13:42 Exper ts Who Base Opinion on Testimony

§13:43 Par ties Have Right to Attend Trial

§13:44 Exception: Parties Who May Be Excluded

§13:45 Motion to Exclude the Public

FORMS

Form 13:10 Notice of Motion to Exclude Witnesses From Courtroom

Form 13:20 Affirmation in Support of Motion to Exclude Witnesses From Courtroom

Form 13:30 Notice of Motion to Permit Expert to Be Present During Testimony

Form 13:40 Affirmation in Support of Motion to Permit Expert to Be Present During Testimony

Form 13:50 Notice of Motion to Exclude Party From Courtroom

Form 13:60 Affirmation in Support of Motion to Exclude Party From Courtroom

MOTIONS IN LIMINE,

EXCLUDE PERSONS

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MOTIONS IN LIMINE,

EXCLUDE PERSONS

13-3 Motions in Limine and Motions to Exclude Persons From Trial §13:01

I. MOTIONS IN LIMINE

A. General Points

§13:01 Purpose

A motion in limine (literally “at the threshold”) is a preemptive motion, usually seeking an order from the court

to prevent the jury from observing evidence or conduct or hearing testimony that is improper and prejudicial. The

philosophy behind such motions is that the jurors should never be exposed to the forbidden material, and that if they

are, curative measures such as striking testimony and instructions to disregard would be insucient to overcome the

prejudice to the moving party, and might even require a mistrial. “Generally, the function of a motion in limine is to

permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissi-

ble, immaterial, or prejudicial evidence or limiting its use. Its purpose is to prevent the introduction of such evidence

to the trier of fact, in most instances a jury. [State v. Metz, 241 AD2d 192, 198, 671 NYS2d 79, 83 (1st Dept 1998).]

Motions in limine may also request the trial court to allow something that you desire, e.g., allow your expert

to be present during other witnesses’ testimony. [See People v. Santana, 80 NY2d 92, 100, 205, 587 NYS2d 570,

574 (1992); §13:42.], or a ruling that certain evidence may be used at trial. [E.g., Golimowski v. Town of Cheek-

towaga, 184 AD3d 1195, 1196-1197, 126 NYS3d 278, 281 (4th Dept 2020) (plainti was a pedestrian struck by

defendant police ocer’s car turning left; plainti’s motion in limine sought to permit introduction in evidence of

a letter of suspension, which was signed by driver/ocer S and in which S consented to a three-day suspension

from work upon his admission that he had violated a police department rule regarding safe operation of a motor

vehicle; defendant’s contentions went to the weight, rather than admissibility, of the letter.).]

Some trial courts have rules requiring motions in limine. In Mendola v. Richmond OB/GYN Associates, 191

Misc2d 699, 744 NYS2d 637 (Sup Ct Richmond County 2002), Supreme Court rejected as tardy defendant’s motion

to preclude testimony of certain doctors on the ground that plainti had never furnished those doctors’ reports in

accordance with 22 NYCRR 202.17. The Court noted that “[t]he rules of this court, which were provided to, and

discussed with, counsel prior to the start of trial, clearly inform the parties, inter alia, that: ‘Any potential evidentiary

question or procedural or substantive law matter not previously adjudicated shall be brought to the Court’s attention

and addressed prior to trial by way of a written or oral motion in limine … . Failure to comply with these Court Rules

shall be addressed appropriately … .’” Id. at 700, 744 NYS2d at 639. (The Court also noted that defendant’s counsel

had not moved to compel production of such reports as provided in 22 NYCRR 202.17(j), and could not credibly

argue that they were unaware of noncompliance with 22 NYCRR 202.17 until after the jury had been selected and

trial was well under way. The Court also found that defendants had been made suciently aware of what the doctors

would be testifying about, and that plainti’s failure to produce the reports was not willful nor calculated to prejudice

defendant. The Court did limit the doctors’ testimony to matters set forth in plainti’s medical and hospital records,

which were in defendant’s possession.) The modern trend is for trial courts to set dates by which motions in limine

must be made prior to trial. Judges trying cases in New York County Asbestos Litigation (NYCAL), where there

are typically multiple defendants and cases consolidated for trial, have issued elaborate multipage decisions/orders,

e.g., specifying lead counsel to prepare joint letters not to exceed certain page limits, that individual defendants

with case-specic motions in limine may le individual letters with strict page limits, and with similar limitations

placed on plaintis. Some judges specify that motions in limine be brought by order to show cause, implying that

while the adverse party may submit opposition, the moving party may not submit any reply.

NOTE:

Some motions for pre-trial relief may be barred because they should have been brought sooner. [See, e.g,

Dupree v. Giugliano, 87 AD3d 975, 978, 929 NYS2d 305, 308 (2d Dept 2011) (Supreme Court properly

denied defendant’s midtrial application to preclude evidence of certain special damages, as among other

things, the application was untimely. Interestingly, the opinion cites Martin v. We’re Associates, 127 AD2d

568, 511 NYS2d 368 (2d Dept 1987), which upheld denial of a motion for preclusion with respect to an

allegedly inadequate bill of particulars on the ground that no such motion had been made within ten days as

required by then-CPLR 3042(d); this specic CPLR requirement has since been deleted, but the court in Dupree

evidently felt that midtrial was far too late to make such a motion; it also cited as a comparison Bass v. A & D

Service Station, 202 AD2d 464, 610 NYS2d 797 (2d Dept 1994), which upheld the grant of such a motion

because of “special circumstances.”).]