State Court Motion in Limine - Oregon

MOTION IN LIMINE

(Oregon Circuit Court — Motion in Limine to Exclude Evidence)

TABLE OF CONTENTS

1. Caption
2. Motion and Notice

3. Memorandum of Points and Authorities
   3.1 Introduction
   3.2 The Evidence Sought to Be Excluded
   3.3 Legal Standard
   3.4 Argument — Numbered Grounds
   3.5 Conclusion

4. [Proposed] Order

5. Certificate of Service

1. CAPTION

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF [________________________________]

Case No.: [________________________________]

[MOVANT]'S MOTION IN LIMINE NO. [____] TO EXCLUDE [________________________________]

☐ Oral Argument Requested
Estimated Hearing Time: [____] minutes
Assigned Judge: Hon. [________________________________]
Trial Date: [__/__/____]

2. MOTION AND NOTICE

TO: [________________________________], Attorney for [Plaintiff / Defendant], and to all parties of record:

PLEASE TAKE NOTICE that [Plaintiff / Defendant] [________________________________] ("Movant") hereby moves this Court, in advance of trial and outside the presence of the jury, for an order prohibiting [the opposing party] [________________________________] ("[Opposing Party]"), and its counsel and witnesses, from offering, mentioning, referring to, interrogating concerning, or attempting to convey to the jury in any manner — directly or indirectly — the evidence and matters described below, and from suggesting to the jury that such matters exist, without first obtaining a ruling from the Court outside the presence and hearing of the jury.

This Motion is made pursuant to the Court's inherent authority to control the conduct of trial, OEC 403 / ORS 40.160, and the additional authorities set forth below, on the grounds that the evidence is irrelevant under OEC 402 and/or its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or undue delay under OEC 403. The Motion is based on the accompanying Memorandum of Points and Authorities, the pleadings and records on file, and any further evidence or argument presented at or before the hearing.

Pursuant to UTCR 5.030, any response must be filed within the time provided by rule; any reply is due as provided by UTCR 5.030. The Court may decide this Motion without oral argument unless a party timely requests it under UTCR 5.060.

DATED: [__/__/____]

________________________________________
[Attorney Name], OSB No. [________________]
Attorney for [Movant]

3. MEMORANDUM OF POINTS AND AUTHORITIES

3.1 Introduction

This is an action for [describe nature of action — e.g., negligence arising from a motor-vehicle collision / breach of contract / products liability]. Trial is set for [__/__/____]. Movant anticipates that, absent an order from this Court, [Opposing Party] will attempt to introduce or elicit evidence and argument that is irrelevant under OEC 402, and/or that is subject to exclusion under OEC 403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusion, and undue delay — the mere mention of which before the jury would cause harm that no instruction could cure. Movant therefore moves to exclude the matters set forth below.

3.2 The Evidence Sought to Be Excluded

Movant seeks an order excluding the following specific items of evidence:

1. [________________________________]
2. [________________________________]
3. [________________________________]

3.3 Legal Standard

Relevance (OEC 401, 402 / ORS 40.150, 40.155). "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (OEC 401.) Evidence that is not relevant is not admissible. (OEC 402.)

Discretion to Exclude — Oregon's OEC 403 (the FRE 403 analog). "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence." (OEC 403 / ORS 40.160.)

Character and Other Acts (OEC 404 / ORS 40.170). Evidence of a person's character or trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except as provided by the rule. Evidence of other crimes, wrongs, or acts is not admissible to prove character but may be admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, subject to exclusion under OEC 403.

Credibility and Impeachment (OEC 608, 609 / ORS 40.350, 40.355). A witness's character for truthfulness or untruthfulness may be addressed as provided in OEC 608. Impeachment by evidence of a criminal conviction is governed by OEC 609 and is subject to the limitations stated therein and to exclusion under OEC 403.

Subsequent Remedial Measures (OEC 407 / ORS 40.185). Evidence of measures taken after an event which, if taken previously, would have made the event less likely to occur is not admissible to prove negligence or culpable conduct in connection with the event.

Compromise and Offers to Compromise (OEC 408 / ORS 40.190). Evidence of furnishing, offering, or promising to furnish — or accepting, offering, or promising to accept — valuable consideration in compromising a disputed claim, and conduct or statements made in compromise negotiations, is not admissible to prove liability for or invalidity of the claim or its amount.

Liability Insurance (OEC 411 / ORS 40.205). Evidence that a person was or was not insured against liability is not admissible on the issue of whether the person acted negligently or otherwise wrongfully.

Hearsay (OEC 801–806 / ORS 40.450 et seq.). Hearsay is not admissible except as provided by the Oregon Evidence Code or other law.

Expert Testimony — OEC 702 and the O'Key/Brown Reliability Standard (OEC 702 / ORS 40.410; State v. O'Key; State v. Brown). Under OEC 702, "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." Oregon applies its own reliability-and-pertinence gatekeeping standard — not Daubert or Frye by name. Evidence with the potential to influence the trier of fact as scientific evidence "must be reviewed by court for scientific validity and pertinence." (State v. O'Key, 321 Or 285, 899 P2d 663 (1995).) The court evaluates validity and pertinence in light of factors including: (1) the technique's general acceptance in the field; (2) the expert's qualifications and stature; (3) the use that has been made of the technique; (4) the potential rate of error; (5) the existence of specialized literature; (6) the novelty of the technique; (7) the extent to which the technique relies on the subjective interpretation of the expert; and (8) whether the theory or technique can be and has been tested and has been subjected to peer review and publication. (State v. Brown, 297 Or 404, 687 P2d 751 (1984); O'Key, supra.) Expert testimony must also be relevant under OEC 401, must assist the trier of fact under OEC 702, and must not be subject to exclusion under OEC 403.

Golden-Rule and Improper Appeals to Sympathy or Passion. Argument inviting jurors to place themselves in the position of a party (the "golden rule"), or appealing to sympathy, passion, or prejudice rather than the evidence, is improper and excludable under OEC 403 and Oregon decisional law governing attorney misconduct in argument.

3.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (OEC 401, 402).
Movant moves to exclude [describe evidence] because it has no tendency to make any fact of consequence more or less probable. Specifically, [________________________________]. Because the evidence is irrelevant, it is inadmissible under OEC 402.

GROUND 2 — Unfair Prejudice, Confusion, and Undue Delay (OEC 403).
Movant moves to exclude [describe evidence] because any probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, and undue delay or needless presentation of cumulative evidence. [________________________________].

GROUND 3 — Character and Other Acts (OEC 404; OEC 403).
Movant moves to exclude evidence, reference, or argument concerning [describe prior bad acts / character / other crimes], which is offered only to prove that the [party/witness] acted in conformity with a character trait and is inadmissible under OEC 404, and which, even if offered for a non-character purpose, should be excluded under OEC 403.

GROUND 4 — Improper Impeachment (OEC 608, 609; OEC 403).
Movant moves to exclude impeachment by [describe prior conviction / character for untruthfulness] because it does not satisfy OEC 608 or OEC 609 and/or its probative value on credibility is substantially outweighed by the danger of unfair prejudice under OEC 403.

GROUND 5 — Inadmissible Hearsay (OEC 801–806).
Movant moves to exclude [describe out-of-court statement / document] as inadmissible hearsay offered to prove the truth of the matter asserted, for which no exception applies.

GROUND 6 — Subsequent Remedial Measures (OEC 407).
Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence or culpable conduct, inadmissible under OEC 407.

GROUND 7 — Compromise and Offers to Compromise (OEC 408).
Movant moves to exclude all evidence, reference, or argument concerning settlement discussions, offers of compromise, or statements made in compromise negotiations, inadmissible under OEC 408.

GROUND 8 — Liability Insurance (OEC 411; OEC 403).
Movant moves to exclude any evidence, reference, or argument that any party was or was not covered by liability insurance, which is inadmissible on the issue of fault under OEC 411 and unduly prejudicial under OEC 403.

GROUND 9 — Inadmissible / Unreliable Expert Testimony (OEC 702; State v. O'Key; State v. Brown).
Movant moves to exclude the opinion testimony of [Expert Name] because it does not satisfy Oregon's reliability-and-pertinence gatekeeping standard. Specifically, [the technique has not been tested or peer-reviewed / has an unacceptable rate of error / is not generally accepted / relies on unsupported subjective interpretation / ________________________________]. Under OEC 702 and State v. O'Key and State v. Brown, the Court should exercise its gatekeeping role and exclude this testimony as lacking scientific validity and/or pertinence.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (OEC 403).
Movant moves to prohibit opposing counsel from making any "golden rule" argument asking jurors to place themselves in the position of a party, and from any argument or evidence appealing to sympathy, passion, or prejudice rather than the evidence.

GROUND 11 — [Additional Ground].
[________________________________]

3.5 Conclusion

For the foregoing reasons, Movant respectfully requests that the Court GRANT this Motion in Limine; ORDER that [Opposing Party], its counsel, and its witnesses refrain from offering, mentioning, or alluding to the excluded matters in the presence or hearing of the jury, whether during voir dire, opening statement, examination of witnesses, or closing argument, without first approaching the bench and obtaining leave of Court outside the jury's presence; DIRECT counsel to instruct and admonish their witnesses accordingly; and GRANT such other and further relief as the Court deems just and proper.

DATED: [__/__/____]

________________________________________
[Attorney Name], OSB No. [________________]
Attorney for [Movant]

4. [PROPOSED] ORDER

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF [________________________________]

Case No.: [________________________________]

[PROPOSED] ORDER ON [MOVANT]'S MOTION IN LIMINE NO. [____]

This matter came before the Court on Movant's Motion in Limine. The Court, having considered the Motion, any response and reply, and the arguments of counsel, and good cause appearing, ORDERS:

1. The following evidence, testimony, argument, and reference is EXCLUDED: [________________________________].
2. [Opposing Party], its counsel, and its witnesses shall not offer, mention, refer to, or attempt to convey to the jury — directly or indirectly — any of the excluded matters during voir dire, opening statement, the examination of witnesses, or closing argument, without first obtaining leave of Court outside the presence and hearing of the jury.
3. Counsel for [Opposing Party] shall instruct and admonish each of its witnesses to comply with this Order.

Ruling on each numbered ground:

☐ GROUND 1 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 2 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 3 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 4 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 5 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 6 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 7 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 8 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 9 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 10 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 11 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐

IT IS SO ORDERED.

DATED: [__/__/____]

________________________________________
Hon. [________________________________]
Circuit Court Judge

5. CERTIFICATE OF SERVICE

I certify that on [__/__/____], I caused a true and correct copy of the foregoing [MOVANT]'S MOTION IN LIMINE NO. [____]; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER to be served upon the following in the manner indicated:

[________________________________]
[Attorney Name], Attorney for [Opposing Party]
[Firm Name] | [Address] | [Email]

☐ Oregon Judicial Department eFiling System (File & Serve)
☐ First-class U.S. mail, postage prepaid
☐ Electronic mail (by agreement per ORCP 9 G)
☐ Hand delivery

________________________________________
[Attorney Name], OSB No. [________________]

SOURCES AND REFERENCES

• Oregon Evidence Code (ORS Chapter 40): https://www.oregonlegislature.gov/bills_laws/ors/ors040.html
• OEC 403 / ORS 40.160 — Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay: https://oregon.public.law/statutes/ors_40.160
• OEC 404 / ORS 40.170 — Character evidence; other crimes, wrongs or acts: https://oregon.public.law/statutes/ors_40.170
• OEC 407 / ORS 40.185 — Subsequent remedial measures
• OEC 408 / ORS 40.190 — Compromise and offers to compromise
• OEC 411 / ORS 40.205 — Liability insurance
• OEC 609 / ORS 40.355 — Impeachment by evidence of conviction of crime
• OEC 702 / ORS 40.410 — Testimony by experts: https://oregon.public.law/statutes/ors_40.410
• State v. O'Key, 321 Or 285, 899 P2d 663 (1995) (scientific-evidence validity/pertinence gatekeeping)
• State v. Brown, 297 Or 404, 687 P2d 751 (1984) (reliability factors for scientific evidence)
• Uniform Trial Court Rules (UTCR): https://www.courts.oregon.gov/programs/utcr/Pages/currentrules.aspx