Use of the Motion in Limine in Family Cases
| Posted on Apr 22, 2008
By Wayne D. Effron and Rebecca L. Ciota
The Latin phrase in limine means “on the threshold” and a motion in limine is simply a motion made “on the threshold” of trial, i.e. before trial starts, during a recess, or before a witness testifies. Colin C. Tait, Tait’s Handbook of Connecticut Evidence, §1.34.1 (3d ed. 2001). Black’s Law Dictionary (8th ed. 2004) defines a Motion in Limine as “a pretrial request that certain inadmissible evidence not be referred to or offered at trial.” The astute practitioner, however, will be prepared to use the motion in limine not only as a shield, but also as a sword.
Connecticut Practice Book Section 15-3 provides authority for courts to hear motions in limine in civil cases. The Practice Book specifically permits a Court, in its discretion, to entertain a motion in limine to include or exclude evidence if a case has been assigned for trial, and permits a Court to entertain such motions even if a case has not been assigned for trial, if good cause is shown. Id.
It is noteworthy, however, that Chapter 25 of the Practice Book (Family Matters) does not incorporate §15-3. See e.g. P.B. Section 25-54. Nevertheless, case law provides ample authority for Connecticut trial courts to permit the filing of motions in limine in non-criminal cases generally and family matters specifically. See, respectively, Sanderson v. Steve Snyder Enterprises, Inc. 196 Conn. 134, 148, 491 A. 2d 389, 397 (1985) and Cabrera v. Cabrera, 23 Conn. App. 330, 580 A.2d 1227 (1990).
Motions in limine should generally be made in writing and should describe the questionable evidence and the claimed prejudice that would befall the moving party. The properly pleaded motion in limine can serve a variety of purposes:
- It can be used to facilitate the admission of evidence. In Miller v. Kirschner, 225 Conn. 185, 621 A.2d 1326 (1993), the motion in limine was successfully used to obtain the admission of the results of HLA testing to determine paternity.
- It can also be employed in an attempt to exclude evidence at trial. For example, the admissibility of evidence of a party’s psychiatric history in custody cases is open to question and counsel for the party whose psychiatric history is at issue might consider filing a motion in limine to keep it out. In Cabrera v. Cabrera, 23 Conn. App. 330, 580 A.2d 1227 (1990), the Appellate Court upheld the trial court’s granting of a motion in limine to exclude the testimony of a psychologist who had treated the parties in joint counseling sessions.
- The motion has also been used to secure sanctions for failure to comply with discovery requests. See, e.g., Menna v. Jaiman, 80 Conn. App. 131 (2003) (no error granting defendant’s motion in limine to preclude expert testimony by the plaintiff because of plaintiff’s failure to disclose her expert witnesses). The party who files the motion in limine for sanctions for a discovery violation bears the burden of showing that she was prejudiced. See P.B. §13-4(1)(A). A motion in limine may be of use in this context, particularly where the trial court’s rulings regarding discovery are unclear or where there may be uncertainty as to whether there has been full compliance with a discovery order entered previously by the court. See Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007). In these instances, a motion in limine to exclude or permit evidence could be used to obtain a clarification of the issues.
- The motion can be utilized to limit issues on retrial in the event a case is remanded for a specific purpose. See, e.g., Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 462 A.2d 1043 (1983).
- A Motion in Limine is properly used to test the methodology underlying the validity of purported scientific opinion. State v. Porter, 241 Conn. 57, 698 A. 739 (1997) cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L.Ed.2d 645 (1998). For example the methodology of an alleged mental health expert who adheres to an esoteric school of psychology and renders a diagnosis or other opinion may be challenged in this fashion. This is done in a “Porter hearing.”
- A Motion in Limine can educate the Court. Whether to use a motion in limine is ultimately a tactical consideration. Inasmuch as it must be made in writing, the motion, when filed, will be part of the court file. This can be an obvious advantage to the proponent, and also suggests another purpose for the filing of a motion in limine: it can serve to educate the court. This is true even if the court declines to rule on the motion in advance of trial and, indeed, even if the court denies the motion.
- A motion in limine will also help focus the tribunal’s attention on novel issues of law: a court is more likely to be persuaded to extend the law by filing a motion and a supporting memorandum of law, than by simply raising the issue verbally at trial. In addition, by propounding the motion and briefing it, a party is in a better position to preserve a record for appeal.
- The motion can also tactfully be used to seek the admission of evidence which the court might consider offensive. If such controversial evidence is deemed admissible, introducing it will have the explicit sanction of the court. If not, one’s client can be assured that the effort has at least been made.
- Motions in Limine can have the positive effect of fostering settlement. By providing the parties with a roadmap of the admissible (and inadmissible) evidence, motions in limine can prove useful in evaluating the strengths and weaknesses of a case, lending at least a hint of predictability at trial.
The elements of a motion in limine might include the following:
- The intention to exclude certain evidence.
- The belief that the proponent possesses the evidence and the likelihood of its admission at trial.
- The prejudicial nature of the evidence and the reasons why it should be excluded under law.
- Why an ordinary trial objection would be inadequate protection for the opponent.
- The legal basis of the motion.
- In the event that a motion is filed prior to the case’s having been assigned for trial, the “good cause” for the court’s entertaining it.
If a motion in limine to preclude evidence is denied, counsel for the movant may choose to bring out the damaging evidence as part of the direct examination, in order to present it in a more favorable light. However, employing this tactic may constitute a waiver of the right to appeal the issue. When a motion in limine is denied, the issue will generally not be preserved for appeal if counsel acts in a manner contrary to the issue he was seeking to preserve. Borkowski v. Sacheti, 43 Conn. App. 294, 326-27, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996). “Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court’s order, that party waives any such claim.” (internal quotation marks omitted) State v. Felder, 95 Conn. App. 248, 255, 897 A.2d 614, cert. denied, 279 Conn. 905, 901 A.2d 1226 (2006); State v. Tyson, 86 Conn. App. 607, 613, 862 A.2d 363 (2004), cert. denied, 273 Conn. 927, 873 A.2d 1000 (2005). A party aggrieved by an adverse decision on a motion in limine is well advised to object a second time when the evidence is offered at trial. See Tait, supra, §1.34.2(a).
If a motion in limine precluding evidence is violated by the opposing party, the prevailing party may seek a mistrial. Whether a mistrial will be the sanction for the violation appears to depend upon the flagrancy of the transgression and the stage of trial at which it occurred. See Tait, supra, §1.34.2(c). A determination of the “flagrancy of the violation” requires a court to evaluate the effect of the evidentiary “impropriety in the context of the totality of the evidence adduced at trial.” Vasquez v. Rocco, 267 Conn. 59, 72, 836 A.2d 1158 (2003).
A motion in limine is not immediately appealable because it is not a final judgment. See Tait, supra, §1.34.2(b). The granting of the motion may be assigned as error on a later appeal; if the motion in limine is denied, the denial is without prejudice to a later appeal. Ibid.
Attorneys should be careful not to breach and should instruct their clients not to breach their hard-earned successful orders in limine. Where a motion in limine is granted, but, at trial, the party who obtained the motion opens the door to the excluded line of questioning, the attorney will be estopped from objecting to the opponent’s cross examination on that subject. See, e.g., State v. Young, 73 Conn. App. 550 (2002)(despite Defendant’s successful motion in limine to exclude evidence of his prior arrests at trial, the Court found that the defendant had opened the door to the cross-examination regarding his prior arrests by mentioning them in his response to the state’s question).
Since the early 1980’s, Connecticut motion practice has increasingly utilized motions in limine to preclude irrelevant or unduly prejudicial evidence from trial, to admit relevant but controversial evidence, to punish attorneys who violate discovery rules and to generally streamline the trial process. Motions in limine are useful tools that should remain at the forefront of every practitioner’s short calendar arsenal.
Examples of Motion in Limine Utilized in Family Law Cases
Bouchard v. Bouchard, 2001 WL 359036 (Conn. Super. 2001) (motion in limine used to determine the relevance of evidence sought to be introduced regarding the defenses to a motion for contempt viz., breach of contract and accord and satisfaction)
Breiter v. Breiter, 32 Conn. L. Rptr. 244 (Conn. Super. 2002) (the court found the terms of the judgment unambiguous and granted, in part, plaintiff’s motion in limine to prevent defendant from offering evidence to contradict that language)
Cabrera v. Cabrera, 23 Conn. App. 330, 580 A.2d 1227 (1990) (despite the fact that the parties attended joint counseling sessions and executed releases in relation to those sessions, the trial court did not err in granting plaintiff’s motion in limine to exclude psychologist’s testimony)
Carlisle v. Carlisle, 1994 WL 592243 (Conn. Super. 1994) (plaintiff’s motion in limine seeking to exclude from evidence her interest in various irrevocable trusts subject to a life estate denied by the court since the plaintiff’s future interests in the trusts were present property interests and thus assets in the plaintiff’s present estate to be considered by the court under C.G.S.A. 46b-81(a) and (c), and 46b-82)
Carroll v. Carroll, 2003 WL 21403892 (Conn. Super., 2003) (granting defendant’s motion in limine to prevent the introduction of evidence from employment records and to preclude testimony regarding the content of employment records after plaintiff’s counsel allegedly improperly obtained said records through an alleged improper use of his subpoena powers)
Casey v. Dittmar, 2004 WL 3105980 (Conn. Super. 2004) (questions relating to an SEC proceeding limited to those pertaining to marital discord and to the depletion of marital assets and reference to a sealed SEC- related transcript was precluded)
Catlin v. Catlin, 1996 WL 22394 (Conn. Super. 1996) (defendant’s motion in limine to exclude from the trial all evidence concerning his interest in a certain trust created prior to the parties’ marriage denied where preclusion under the circumstances would foreclose the plaintiff from the opportunity of developing a record to show trust interest had a present value and should be included in marital estate)
Dornemann v. Dornemann, 48 Conn. Supp. 502, 850 A.2d 273, 37 Conn. L. Rptr. 74 (Conn. Super. 2004) (plaintiff’s motion in limine to preclude evidence of the parties’ premarital agreement denied)
Eslami v. Eslami, 218 Conn. 801, 591 A.2d 411 (1991) (no error in either of trial’s court’s first and second denials of defendant’s motion in limine to preclude testimony of wife’s expert witness as to value of defendant’s radiology practice since trial court could reasonably have concluded as it did not the facts presented, because defendant had failed to show due diligence in deposing the expert to which he objected, and because defendant had failed to abide by previous order for an appraisal of his business)
Gulick v. Gulick, 1996 WL 57056 (Conn. Super. 1996) (plaintiff’s motion in limine regarding antenuptial agreement granted where court found agreement to be invalid and unenforceable due to the lack of full and complete financial disclosure although evidence presented at the motion in limine hearing could be considered by the court as evidence in the dissolution trial where both parties and counsel orally stipulated to that use)
Haddad v. Haddad, 1994 WL 547585 (Conn. Super. 1994) (defendant’s motion in limine requesting signed separation agreement be accepted into evidence as binding on plaintiff and dispositive of the parties’ claims and interests denied by court which insisted the parties provide evidence as to the nature of their claims, the nature of the separation agreement and its signing, and the intent of the parties during a period of reconciliation after the agreement was made)
Hutchings v. Hutchings, 2005 WL 1757294 (Conn. Super. 2005) (citing Weinstein v. Weinstein, 18 Conn. App. 622, 561 A.2d 443 (1989), motion in limine filed to disqualify an expert from testifying on grounds of bias based on his relationship to one of the parties)
Lacore v. Lacore, 2006 WL 414429 (Conn. Super. 2006); Intravia v. Intravia, 35 Conn. L. Rptr. 635 (Conn. Super. 2003) (party permitted to file motion in limine to test the enforceability of a prenuptial agreement)
Levine V. Levine, 88 Conn. App. 795, 871 A.2d 1034, (2005) (a claim of res judicata precluding a second motion for modification granted by the trial court pursuant to a motion in limine; however, this order was overturned by the appellate court)
Miller v. Kirshner, 225 Conn. 185, 621 A.2d 1326 (1993) (no error in lower court’s denial without prejudice of defendant’s motion in limine to preclude admission of the results of his HLA test on the ground that the test was conducted on his tissue whereas he had consented only to a blood test)
Miller v. Miller, 40 Conn. Super 66, 481 A.2d 428 (Conn.Super.1984) (state’s motion in limine seeking admission of leukocyte antigen tests and related tests for purposes of establishing probability of paternity granted)
Rathblott v. Rathblott, 22 Conn. L. Rptr. 656 (Conn. Super. 1998) (oral motion in limine prosecuted seeking to preclude a pendente lite alimony hearing on the basis that the court has no jurisdiction to enter orders distributing assets at that stage of the proceedings)
Richardson v. Richardson, 1995 WL 669131 (Conn. Super. 1995) (defendant’s motion in limine seeking an order precluding evidence relating to the defendant’s interests in the corpus of fourteen family trusts denied)
Shaffer v. Shaffer, 2006 WL 894885 (Conn. Super., 2006) (affirming the granting of defendant’s motion in limine to preclude evidence regarding the language of a severance agreement, where the court found that the language of the agreement itself was clear and unambiguous).