State Court Motion in Limine - South Dakota

MOTION IN LIMINE

(South Dakota Circuit Court — 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 DAKOTA
COUNTY OF [________________________________]
IN CIRCUIT COURT
[________________] JUDICIAL CIRCUIT

Civ. 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, SDCL 19-19-403, and the additional authorities set forth below, on the grounds that the evidence is irrelevant under SDCL 19-19-402 and/or its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time under SDCL 19-19-403. 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.D. 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 SDCL 19-19-402, and/or that is subject to exclusion under SDCL 19-19-403 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 (SDCL 19-19-401, 19-19-402). Evidence is relevant if "[i]t has any tendency to make a fact more or less probable than it would be without the evidence" and "[t]he fact is of consequence in determining the action." (SDCL 19-19-401.) Irrelevant evidence is not admissible. (SDCL 19-19-402.)

Discretion to Exclude — South Dakota's SDCL 19-19-403 (the FRE 403 analog). "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." (SDCL 19-19-403.)

Character and Other Acts (SDCL 19-19-404). Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. Evidence of any other crime, wrong, or act is not admissible to prove character but may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, subject to SDCL 19-19-403.

Credibility and Impeachment (SDCL 19-19-608, 19-19-609). A witness's character for truthfulness or untruthfulness may be addressed as provided in SDCL 19-19-608. Impeachment by evidence of a criminal conviction is governed by SDCL 19-19-609 and is subject to the limitations stated therein and to exclusion under SDCL 19-19-403.

Subsequent Remedial Measures (SDCL 19-19-407). When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.

Compromise Offers and Negotiations (SDCL 19-19-408). Evidence of furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — valuable consideration in compromising a disputed claim, and conduct or statements made during compromise negotiations, is not admissible to prove or disprove the claim's validity or amount or to impeach by a prior inconsistent statement or contradiction. The court may admit the evidence for another purpose.

Liability Insurance (SDCL 19-19-411). Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

Hearsay (SDCL 19-19-801 to 19-19-806). Hearsay is not admissible except as provided by the South Dakota Rules of Evidence or other law.

Expert Testimony — SDCL 19-19-702 and the DAUBERT Reliability Standard (SDCL 19-19-702; State v. Guthrie). South Dakota is a Daubert jurisdiction. Under SDCL 19-19-702, a qualified expert may testify if (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. South Dakota repudiated the Frye "general acceptance" test in favor of Daubert (State v. Hofer) and adopted the Daubert/Kumho Tire gatekeeping framework in State v. Guthrie, 2001 S.D. 61, 627 N.W.2d 401: "[b]efore admitting expert testimony, the court must address [reliability and relevance]." In assessing reliability, the court considers the Daubert factors, including (1) whether the theory or technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential rate of error and the existence of standards controlling its operation; and (4) whether it has attained general acceptance in the relevant scientific community. (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).)

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 SDCL 19-19-403 and South Dakota decisional law governing attorney misconduct in argument.

3.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (SDCL 19-19-401, 19-19-402).
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 SDCL 19-19-402.

GROUND 2 — Unfair Prejudice, Confusion, and Waste of Time (SDCL 19-19-403).
Movant moves to exclude [describe evidence] because any probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, and wasting time. [________________________________].

GROUND 3 — Character and Other Acts (SDCL 19-19-404; SDCL 19-19-403).
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 accordance with a character trait and is inadmissible under SDCL 19-19-404, and which, even if offered for a permissible non-character purpose, should be excluded under SDCL 19-19-403.

GROUND 4 — Improper Impeachment (SDCL 19-19-608, 19-19-609; SDCL 19-19-403).
Movant moves to exclude impeachment by [describe prior conviction / other matter] because it does not satisfy SDCL 19-19-608 or SDCL 19-19-609 and/or its probative value on credibility is substantially outweighed by the danger of unfair prejudice under SDCL 19-19-403.

GROUND 5 — Inadmissible Hearsay (SDCL 19-19-801 to 19-19-806).
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 (SDCL 19-19-407).
Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence, culpable conduct, a product defect, or the need for a warning, inadmissible under SDCL 19-19-407.

GROUND 7 — Compromise Offers and Negotiations (SDCL 19-19-408).
Movant moves to exclude [identify the compromise offer, conduct, or statement], made during compromise negotiations concerning the disputed claim, to the extent it is offered to prove or disprove the claim's validity or amount or to impeach by a prior inconsistent statement or contradiction. SDCL 19-19-408 permits use for another purpose.

GROUND 8 — Liability Insurance (SDCL 19-19-411; SDCL 19-19-403).
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 SDCL 19-19-411 and unduly prejudicial under SDCL 19-19-403.

GROUND 9 — Inadmissible / Unreliable Expert Testimony Under Daubert (SDCL 19-19-702; State v. Guthrie).
Movant moves to exclude the opinion testimony of [Expert Name] because it fails the reliability-and-relevance gatekeeping required by SDCL 19-19-702 and State v. Guthrie. Specifically, [the opinion is not based on sufficient facts or data / is not the product of reliable principles and methods / the methods were not reliably applied to the facts / the technique has not been tested or peer-reviewed, has an unacceptable rate of error, lacks controlling standards, or is not generally accepted / ________________________________]. Under the Daubert/Kumho framework adopted in Guthrie, the Court should exercise its gatekeeping role and exclude this testimony.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (SDCL 19-19-403).
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.D. Bar No. [________________]
Attorney for [Movant]

4. [PROPOSED] ORDER

STATE OF SOUTH DAKOTA
COUNTY OF [________________________________]
IN CIRCUIT COURT
[________________] JUDICIAL CIRCUIT

Civ. 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 ☐

BY THE COURT:

______________________________
Circuit Court Judge

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 Odyssey system / first-class mail / hand delivery / email by agreement]:

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

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

Sources and References

• South Dakota Rules of Evidence (SDCL ch. 19-19): https://sdlegislature.gov/Statutes/19-19
• SDCL 19-19-403 — Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons
• SDCL 19-19-404 — Character evidence; crimes or other acts
• SDCL 19-19-609 — Impeachment by evidence of a criminal conviction
• SDCL 19-19-702 — Testimony by expert witnesses (Daubert): https://sdlegislature.gov/Statutes/19-19-702
• State v. Guthrie, 2001 S.D. 61, 627 N.W.2d 401 (adopting Daubert/Kumho Tire gatekeeping)
• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
• South Dakota Rules of Civil Procedure (SDCL ch. 15-6): https://sdlegislature.gov/Statutes/15-6