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Monday
Mar082010

Objection, motion to strike or motion in limine

An objection is not the only way to protest the admission of evidence. The attorney can object before trial in a motion in limine, or what until the question is asked, at which time the objection can be interposed. If the witness answers the question, a motion to strike may also be made.


Evidence Code section 353 prohibits setting aside a verdict or finding, or reversing a judgment due to the erroneous admission of evidence without an objection or a motion to exclude or strike on the record. (Evidence Code § 353(a).) The objection is typically used if the evidence has not come in while the motion to strike is used if the witness testifies before the attorney can object or before the trial court has an opportunity to rule on the objection. By then, the jury may have heard the evidence but at least the ground can be preserved for a later challenge on appeal.


If you are aware that the opposing party will seek to introduce certain damaging evidence, then you may want to use a motion in limine, which allows for a more in-depth discussion about the evidence and the law related to its admission or exclusion. “The advantage of such motions is to avoid the obviously futile attempt to ‘unring the bell’ in the event a motion to strike is granted in the proceedings before the jury.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337.) Motions in limine can streamline trials so that the trial is not bogged down with objections, sidebar or in-chambers conferences, or hearings out of the presence of the jury, which might be milling around outside and frustrated with a delay that they know nothing about.


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