State Court Motion in Limine - South Carolina

MOTION IN LIMINE

(South Carolina Court of Common Pleas — Motion in Limine to Exclude Evidence)

TABLE OF CONTENTS

1. Caption
2. Motion and Notice

3. Memorandum of Law
   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

STATE OF SOUTH CAROLINA
COUNTY OF [________________________________]
IN THE COURT OF COMMON PLEAS
[________________] JUDICIAL CIRCUIT

Case No.: [________________________________]

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

Assigned Judge: The Honorable [________________________________]
Trial Date: [__/__/____]

2. MOTION AND NOTICE

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

[Plaintiff / Defendant] [________________________________] ("Movant"), by and through undersigned counsel, respectfully 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, SCRE 403, and the additional authorities set forth below, on the grounds that the evidence is irrelevant under SCRE 402 and/or its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or waste of time under SCRE 403. The Motion is supported by the accompanying Memorandum of Law, the pleadings and record, and any further evidence or argument presented at or before the hearing.

DATED: [__/__/____]

________________________________________
[Attorney Name], S.C. Bar No. [________________]
[Firm Name] | [Address] | [Telephone] | [Email]
Attorney for [Movant]

3. MEMORANDUM OF LAW

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 SCRE 402, and/or that is subject to exclusion under SCRE 403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusion, and waste of time — the mere mention of which before the jury would cause harm that no cautionary 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 (SCRE 401, 402). "'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." (SCRE 401.) Evidence that is not relevant is not admissible. (SCRE 402.)

Discretion to Exclude — South Carolina's SCRE 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, waste of time, or needless presentation of cumulative evidence." (SCRE 403.)

Character and Other Acts (SCRE 404). Evidence of a person's character or a trait of character is not admissible for the purpose of proving action 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 SCRE 403.

Credibility and Impeachment (SCRE 608, 609). A witness's character for truthfulness or untruthfulness may be addressed as provided in SCRE 608. Impeachment by evidence of a prior criminal conviction is governed by SCRE 609 and is subject to the court's discretion and to exclusion under SCRE 403.

Subsequent Remedial Measures (SCRE 407). 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 (SCRE 408). Evidence of offering or accepting (or promising to offer or 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 (SCRE 411). Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully.

Hearsay (SCRE 801–806). Hearsay is not admissible except as provided by the South Carolina Rules of Evidence or other law.

Expert Testimony — SCRE 702 and the Council/Jones Reliability Standard (SCRE 702; State v. Council; Watson v. Ford Motor Co.). Under SCRE 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." South Carolina has declined to adopt the federal Daubert standard and is not a Frye jurisdiction; it applies its own reliability test. The trial court must make three preliminary findings: (1) the subject matter is beyond the ordinary knowledge of the jury, requiring an expert; (2) the proffered expert is qualified; and (3) the substance of the testimony is reliable. (Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010).) For scientific evidence, reliability is assessed under the factors stated in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999), and State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979): (a) the publications and peer review of the technique; (b) prior application of the method to the type of evidence involved in the case; (c) the quality control procedures used to ensure reliability; and (d) the consistency of the method with recognized scientific laws and procedures. These non-exclusive factors apply only to scientific expert testimony and "serve no useful analytical purpose when evaluating nonscientific expert testimony." (State v. White, 382 S.C. 265, 676 S.E.2d 684 (2009).)

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 SCRE 403 and South Carolina decisional law governing attorney misconduct in argument.

3.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (SCRE 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 SCRE 402.

GROUND 2 — Unfair Prejudice, Confusion, and Waste of Time (SCRE 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, undue delay, and waste of time. [________________________________].

GROUND 3 — Character and Other Acts (SCRE 404; SCRE 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 SCRE 404, and which, even if offered for a permissible non-character purpose, should be excluded under SCRE 403.

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

GROUND 5 — Inadmissible Hearsay (SCRE 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 (SCRE 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 SCRE 407.

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

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

GROUND 9 — Inadmissible / Unreliable Expert Testimony (SCRE 702; State v. Council; Watson v. Ford Motor Co.).
Movant moves to exclude the opinion testimony of [Expert Name] because it fails the reliability requirement of SCRE 702. Specifically, [the subject matter is not beyond the jury's ordinary knowledge / the witness is not qualified / the technique lacks publications and peer review, has not been applied to this type of evidence, lacks quality-control procedures, and/or is inconsistent with recognized scientific laws and procedures / ________________________________]. Under Watson and the Council/Jones factors, the Court should exercise its gatekeeping role and exclude this testimony as unreliable.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (SCRE 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], S.C. Bar No. [________________]
Attorney for [Movant]

4. [PROPOSED] ORDER

STATE OF SOUTH CAROLINA
COUNTY OF [________________________________]
IN THE COURT OF COMMON PLEAS
[________________] JUDICIAL CIRCUIT

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.

______________________________
Presiding Judge, Court of Common Pleas

DATED: [__/__/____]

5. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing [Movant]'s Motion in Limine No. [____], Memorandum of Law, and [Proposed] Order upon all counsel of record via [the South Carolina E-Filing system / first-class mail / hand delivery / email by agreement]:

[Opposing Counsel Name]
[Firm Name] | [Address] | [Email]

______________________________
[Attorney Name], S.C. Bar No. [________________]

Sources and References

• South Carolina Rules of Evidence (full text): https://www.sccourts.org/courtReg/displayRule.cfm?ruleID=401.0&subRuleID=&ruleType=EVID
• SCRE 403 — Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
• SCRE 404 — Character evidence; other crimes, wrongs, or acts
• SCRE 609 — Impeachment by evidence of conviction of crime
• SCRE 702 — Testimony by experts: https://www.sccourts.org/courtReg/displayRule.cfm?ruleID=702.0&subRuleID=&ruleType=EVID
• State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999) (scientific-evidence reliability factors)
• State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979) (origin of South Carolina reliability factors)
• Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010) (three preliminary findings under SCRE 702)
• State v. White, 382 S.C. 265, 676 S.E.2d 684 (2009) (Council factors apply only to scientific testimony)
• South Carolina Rules of Civil Procedure: https://www.sccourts.org/courtReg/