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State v. Bennett7/13/1999
trial court would have admitted the evidence had the defendant proffered it at trial. Holmquist, 36 F.3d at 166. Such speculation will erode the purpose of appellate review, which includes examining what the court actually did at trial based on the evidence actually admitted during trial instead of analyzing rulings made during a preliminary hearing. An appellate court should review issues in light of trial testimony and not in light of a motion in limine. The Judge ruling on the motion in limine may not be the Judge presiding at trial. The factual predicate upon which the court's ruling is based may no longer exist at trial or the Rule 403 weighing may be affected by evidence that is introduced. That being so, the trial Judge must be afforded the opportunity to consider the evidence at the time of trial. Otherwise, a trial court may be reversed for something that was never brought to its attention within the proper context.
The majority position will also allow the defeated party at the in limine hearing to sandbag opposing counsel who has been lulled into thinking that the objection has been abandoned. On that basis, the prevailing party may not argue or put on evidence to support the in limine ruling at trial. The appellate court, therefore, reviews only the prevailing party's evidence produced at the in limine hearings, whereas the prevailing party may have had an arsenal of evidence to produce at trial had the need arisen. We determine whether evidentiary rulings were error based on evidence adduced at trial. Evidence in support of the rulings could be irrelevant for any other purpose, and therefore inadmissible unless the pretrial issue is brought before the trial court. Even if opposing counsel attempts to adduce additional evidence, the trial court may exclude it as irrelevant unless the trial court knows that the pretrial ruling is disputed. Most importantly, this result could lead to the overturning of jury verdicts in both criminal and civil cases on grounds not contested at trial.
A necessary result of the majority's holding is that trial courts will be reluctant to rule on motions in limine in an effort to ensure that all contested matters are brought before the court and the very benefit of such motions will be lost. Alternatively, trial courts will be forced during trial, sua sponte, to inquire as to whether either party objects to any existing preliminary rulings. Furthermore, the party in whose favor the in limine motion was decided will be well advised to raise the issue at trial to ascertain if any objection exists. If so, counsel will have to ask the trial court to revisit the issue and, in so doing, be allowed to present further relevant evidence.
Therefore, while I agree with the result reached in part III, I respectfully disagree with the analysis. Accordingly, I concur in the result only.
HORTON, J., joins in the special concurrence.
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