135.1Motions In Limine
- Motions in limine can be useful for obtaining a ruling in advance of trial on the admissibility of evidence.
- The state has a right to an interlocutory appeal of an adverse ruling on a motion in limine in superior court if the suppressed evidence is essential to the case.
General Rules on Motions in Limine
A motion in limine is a preliminary or pretrial motion, which can be made by the state or a defendant. See generally State v. Hightower, 340 N.C. 735 (1995); State v. Tate, 300 N.C. 180 (1980). Any motion that could be made during trial can also be made before trial as a motion in limine. Motions in limine are often made to obtain an advance ruling from the court on a matter that the party anticipates may arise at trial, and thereby prevent the jury from hearing potentially prejudicial or inadmissible evidence, or to ensure counsel does not express an improper opening statement, jury voir dire question, or jury argument. See generally State v. Hill, 347 N.C. 275 (1997); State v. Dickens, 346 N.C. 26 (1997); State v. Taylor, 344 N.C. 31 (1996); State v. Ward, 338 N.C. 64 (1994); State v. Martin, 105 N.C. App. 182 (1992); State v. Clapp, 135 N.C. App. 52 (1999). Common examples of issues raised by motions in limine include:
- admissibility of 404(b) or other bad character evidence;
- admissibility of inflammatory photographs or exhibits;
- admissibility of hearsay under the N.C. Rules of Evidence, U.S. Constitution, Crawford v. Washington, 541 U.S. 36 (2004), etc.;
- determining a witness’s competence to testify;
- to exclude evidence not disclosed in accordance with defendant’s discovery requirements as provided by G.S. 15A-905; and
- to exclude unreliable tests or demonstrations, or testimony pertaining to such tests or demonstrations.
Better safe than sorry
Though one of the main purposes of a motion in limine is to obtain a ruling from the court on a particular issue prior to trial, the court may elect to defer its ruling on the issue until later in the trial to evaluate the issue in the context of other evidence and argument. If that occurs, the prosecutor should plan ahead for a possible negative ruling on the motion, and avoid relying on any evidence which may later be deemed inadmissible. For example, a prosecutor should refrain from mentioning in his or her opening statement any evidence that may later be excluded.
Though motions in limine are often filed by defendants seeking to exclude evidence or dismiss charges, a ruling motion in limine can also benefit the state by excluding improper evidence or limiting the questioning of a witness. Additionally, obtaining a ruling on a disputed matter prior to trial allows the state to adjust its trial strategy, search for additional or alternative evidence, or take an interlocutory appeal under G.S. 15A-979(c). See State v. Maness, 321 N.C. 454 (1988) (trial judge properly granted state’s motion in limine prohibiting defendant from eliciting evidence of certain out-of-court exculpatory statements made by the defendant until the defendant testified); State v. Freeman, 302 N.C. 591 (1981) (trial judge granted defendant’s motion in limine to suppress the testimony of his wife on the basis that she was incompetent to testify against him a criminal proceeding, and state appealed trial court’s ruling pursuant to G.S. 15A-979(c)); State v. Allred, 131 N.C. App. 11 (1998) (trial judge properly granted state’s motion in limine to prevent defense counsel in opening statement from referring to reputation of building as crack house because evidence was inadmissible hearsay); see also State v. Barber, 120 N.C. App. 505 (1995) (trial court did not err by deferring ruling on motion in limine regarding 404(b) evidence until after defendant testified; judge indicated he would defer for valid reasons, and the evidence did not show that deferred ruling was key factor in defendant’s deciding to testify).
A defendant’s motion to suppress evidence is governed by G.S. 15A-975 and 15A-979(d), and must be filed before trial. See State v. Tate, 300 N.C. 180 (1980). A motion in limine is insufficient to preserve for appeal the issue of the admissibility of evidence if the defendant fails to object to that evidence when it is subsequently offered at trial. State v. Conaway, 339 N.C. 487 (1995); State v. Hayes, 350 N.C. 79 (1999).
Interlocutory Appeal of Ruling on Motion
(See also the related entry on Suppression Motions – Rulings & Appeals.)
- From Superior Court Ruling
The state has the right to appeal in a criminal case when a pretrial suppression motion is granted in superior court if the prosecutor certifies that the appeal is not taken for the purpose of delay and the suppressed evidence is essential to the case. See G.S. 15A-979(c). The burden is on the state to show that it has complied with the statutory prerequisites for appeal, and that it has “timely filed” the required certificate under the statute. See State v. Turner, 305 N.C. 356 (1982) (holding that such a certificate is timely filed if it is filed before the record on appeal is certified to the appellate division); see also State v. Oates, 366 N.C. 264 (2012) (describing time frame in which state must file notice of appeal from trial court’s ruling on suppression motion).
- From District Court Ruling
With the exception of the preliminary granting of a suppression motion in an implied-consent case, (discussed below) the state has no right to appeal a district court judge’s granting of a motion to suppress, even if the motion to suppress was heard before trial. See G.S. 15A-1432 (describing grounds for appeal by state from district to superior court). Instead the state must pursue a writ of certiorari in superior court, under Rule 19 of the General Rules of Practice for the Superior and District Courts, to obtain review of a pretrial ruling by a district court on a motion to suppress. The state’s written motion must be made within 10 days of the entry of the district court’s judgment, filed with the clerk, and served on the defendant. See G.S. 15A-1432; State v. Ward, 127 N.C. App. 115 (1997) (written notice of appeal was sufficient to give notice to defendant, even though it was not in the form of a motion as required by statute). When the state appeals to superior court, the judge must hold a hearing and conduct a de novo review. G.S. 15A-1432; State v. Ward, 127 N.C. App. 115 (1997).
If the district court suppresses evidence at a probable cause hearing in a felony case and the state thereafter indicts the defendant, the district court’s ruling has no legal effect and the defendant must timely refile the suppression motion in superior court. See State v. Lay, 56 N.C. App. 796 (1982).
- Implied-Consent Cases
The Motor Vehicle Driver Protection Act of 2006 created an interlocutory right to appeal for the state in the context of suppression motions. Following a hearing on a defendant’s pretrial motion to suppress evidence in district court in an implied consent case, the district court judge must make written findings of fact and conclusions of law, and preliminarily indicate whether the motion should be granted or denied. See G.S. 20-38.6(f). When the judge indicates that the motion should be granted, the state may appeal to superior court within a reasonable time. See G.S. 20-38.7(a); State v. Fowler, 197 N.C. App. 1 (2009) (time by which the state must give notice of appeal depends on the circumstances of each case); State v. Palmer, 197 N.C. App. 201 (2009) (G.S. 15A-1432(b) may be used as a procedural guideline for giving notice of appeal but is not binding). No final order may be entered until the state has either appealed or indicated that it does not intend to do so. See G.S. 20-38.6(f).
If the state appeals, the superior court must consider the merits of the motion and then remand to district court for entry of judgment. When the superior court affirms the district court’s preliminary indication that the evidence should be suppressed and remands for entry of judgment, the state may not appeal from the remand order or from the district court’s final judgment suppressing the evidence. See State v. Parisi, 251 N.C. App. 861 (2017) (holding state had no interlocutory right to appeal from superior court order remanding case back to district court for entry of an order), appealed after remand, 259 N.C. App. 879 (2018), aff'd, 372 N.C. 639 (2019); Fowler, 197 N.C. App. at 18; State v. Rackley, 200 N.C. App. 433 (2009) (following Fowler).
For an implied consent offense that is being tried in superior court (for example, on appeal after conviction in district court or in connection with a felony or pursuant to an indictment following presentment), the state may rely on the standard procedures found in G.S. 15A-1445(b) and 15A-979 to appeal an order suppressing evidence, as described above. See State v. Parisi, 251 N.C. App. 861 (2017), appealed after remand, 259 N.C. App. 879 (2018), aff'd, 372 N.C. 639 (2019).