Civil and criminal court litigators—beware. A recent decision of the Pennsylvania Superior Court, in a criminal appeal, has radically upset the calculus lawyers must perform if they lose a motion in limine and want to decide whether to front (or “own”) the bad fact. Doing so may now cost a litigant the chance to claim error on appeal.

Until Dec. 23, 2022, the sage advice was simple—if a motion in limine to exclude damning proof was denied, the party who lost would then own the fact. “It is common practice for the party who calls a witness who has a criminal record to bring out the prior conviction on direct examination … an anticipatory disclosure designed to reduce the prejudicial effect of the evidence if revealed for the first time on cross-examination.” See 1 Ohlbaum on the Pennsylvania Rules of Evidence Section 609.09 (2022). And if the trial was lost, appeal the in limine ruling.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]