Motion in Limine to Preclude Evidence or Reference in South Dakota

“Motions in limine are heard in advance of trial and seek a court order requiring the parties not to discuss or disclose certain facts that the court deems to be prejudicial. Motions in limine have long been favored by this Court. The purpose of these motions is to prevent prejudicial information from reaching the ears of the jury.” (Douglas v. Anderson, 692 N.W.2d 194, 197 [S.D. 2005] citing Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 [1984].) “This is based on the recognition that when prejudicial matters are brought before the jury no amount of objection or instruction can entirely remove the harmful effect.” (Douglas v. Anderson, 692 N.W.2d 194, 197 [S.D. 2005] citing Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 426 [S.D. 1994].) “‘Once the question is asked, the harm is done.’” (Id.)

Again, “[t]he purpose of a motion in limine is to prevent prejudicial evidence, argument, or reference from reaching the ears of the jury. However, a trial court's ruling on a motion in limine is preliminary and may change depending on what actually happens in trial.” (Kappenman v. Stroh, 704 N.W.2d 36, 39 [S.D. 2005] citing First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 7, 686 N.W.2d 430, 437.)

What Does the Initial Ruling on a Motion in Limine Achieve?

The initial ruling by itself preserves nothing for appeal. To claim error based on the denial of a motion in limine, the trial court must allow, over renewed objection, that which the moving party sought to exclude to be presented to the jury. Where an in limine motion is denied but the evidence, argument, or reference is subsequently entered in the record without objection, there is no appealable issue, no reversible error. (Kappenman v. Stroh, 704 N.W.2d 36, 39 [S.D. 2005] citing State v. Red Star, 467 N.W.2d 769, 771 [S.D. 1991] citing State v. Gallipo, 460 N.W.2d 739, 743 [S.D. 1990]; State v. Novaock, 414 N.W.2d 299 [S.D. 1987]; State v. Olson, 408 N.W.2d 748 [S.D. 1987].)

Appellate Cases Discussing Motions in Limine

“‘Alert practitioners must remain conscious to the danger of failing to make an adequate record at trial when a motion in limine has been earlier granted or denied.’” (In re Estate of Duebendorfer, 721 N.W.2d 438, 444 [S.D. 2006][internal citations omitted].)

“The motion in limine is a useful tool, but care must be exercised to avoid indiscriminate application of it lest parties be prevented from even trying to prove their contentions....[T]he motion in limine is not ordinarily employed to choke off an entire claim or defense.... Rather, it is usually used to prohibit mention of some specific matter, such as an inflammatory piece of evidence, until the admissibility of that matter has been shown out of the hearing of the jury.” (Schlagel v. Sokota Hybrid Producers, 279 N.W.2d 431, 433 [S.D. 1979] quoting Lewis v. Buena Vista Mutual Ins. Ass'n, 183 N.W.2d 198, 200 [Iowa 1971].)