Motion in limine to keep out 404b evidence
A motion in limine (lim-a-nay) is a basically a motion to permit or (more often) exclude a piece of evidence. In my opinion, it is the most underused but most powerful tool a criminal defense attorney has. Used correctly, it can really carve up the State’s case and leave them without some of their best evidence. Care must be taken to consider how and when to use this motion. Like just about everything, I take a case by case approach but I rarely file them for evidence issues that are rather basic. For example, if someone gives a statement to an officer that is clearly hearsay, you don’t need to file a motion on that. Either the State will not elicit that testimony or an objection at trial can be made.
Instead, I focus my motions on complex, unique and very important evidence issues such a prejudicial evidence. Regardless of when these motions are brought (before or during trial) it really helps the have these issues briefed well ahead of time. However, don’t be surprised about the State’s resources. In one phone call, they can have a number of prosecutors give them a case to argue. You’ll want someone available to do some quick research on the fly to counter these arguments. Modern technology makes this easy.
Keep in mind that in some jurisdictions like New Jersey, the State must file a motion to admit 404(b) evidence ahead of time. Of course, they don’t always do so. Because some of these hearings may result in testimonial evidence, you may want to consider filing a motion in limine well ahead of trial.
Issues to consider include but are not limited to, opinions by any witness as to the defendant’s guilt, motive or interest in children; any reference to molesting children; as well as any reference to other deviant sexual acts or interests in same. None of that is relevant to the State’s unless the defense’s case puts any of those topics at issue pursuant to 404(b). Thus, care must be taken to craft a defense that does not open the door to same. Playing your cards as close to your vest as possible is always the best strategy.