Motion in Limine Regarding an Unknown Witness

Sample Motion in Limine Regarding Unidentified Witnesses

IN THE CIRCUIT COURT FOR BALTIMORE, CITY, MARYLAND
Civil Division

MILES COOPER BASHANT
Plaintiff,

v.

DONALD OTIS TWIGGS, et al
Defendants.

Case No.: 22-C-10-000933

Plaintiffs’ Motion in Limine to Preclude Defendants from Introducing Evidence Regarding an Unidentified Witness to the Occurrence

Plaintiff, Miles Cooper Bashant, ("Plaintiff Bashant") by and through his counsel, Ronald V. Miller, Jr., Laura G. Zois, John B. Bratt and Miller & Zois, LLC file Plaintiffs’ Motion In Limine to Preclude Defendants From Introducing Evidence Regarding an Unidentified Witness to the Occurrence. In support thereof, Plaintiffs state as follows:

Introduction

Plaintiffs anticipate Defendants may attempt to introduce evidence regarding an unidentified witness to the occurrence for the sole purpose of trying to persuade the jury that the circumstances surrounding the car collision differ from the accounts given during each party’s respective deposition. Any such evidence is irrelevant under Md. Rule 5-401 because it does not bear on the existence of any material fact. Even if the evidence were relevant, it would nonetheless be inadmissible under Md. Rule 5-403 because its limited probative value would be substantially outweighed by the danger of unfair prejudice and confusion of the issues. Finally, any statements made by the unidentified witness would be inadmissible hearsay that would not fall into any recognized exceptions under Md. Rule 5-804.

Argument

Any evidence relating to this unidentified witness should be precluded because it is inadmissible

Evidence relating to this unidentified witness is inadmissible for three reasons. First, it is irrelevant and immaterial under Md. Rule 5-401 because it does not make the existence of any fact material to Plaintiffs’ causes of action more or less likely. Next, even if this evidence were relevant, it should not be admitted under Md. Rule 5-403 because its limited probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Finally, any recitations of what the unidentified witness said at the scene of the collision would be inadmissible hearsay under Md. Rule 5-804, because no recognized exceptions would apply.

  1. The evidence is inadmissible because it is irrelevant and immaterial.

“Evidence that is not relevant is not admissible.” Md. Rule 5-402. “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.” Md. Rule 5-401 (internal quotations omitted). As the Court of Appeals of Maryland has elaborated:

Evidence, to be admissible, must be both relevant and material. Evidence is material if it tends to establish a proposition that has legal significance to the litigation; it is relevant if it is sufficiently probative of a proposition that, if established, would have legal significance to the litigation. Evidence is relevant, therefore, if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence, and a fact is material if it is of legal consequence to the determination of issues in the case, which are dependent upon the pleadings and substantive law.

Lai v. Sagle, 373 Md. 306, 319, 818 A.2d 237, 245 (2003)(Harrell, J.).

The Hon. Joseph Murphy of the Court of Appeals of Maryland has distilled this analysis as follows:

To determine relevancy, we ask: “Does the evidence being offered have a natural tendency to prove (or disprove) the point counsel is trying to prove?” If the answer to the relevancy question is “Yes,” to determine materiality, we ask: “Does this particular point help the factfinder decide an issue that it must decide to arrive at its verdict in this case?”

Murphy, J., Maryland Evidence Handbook §501 (Matthew Bender 2009).

First, any evidence relating to the unidentified witness is not material. “Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case.” Id. The evidence is immaterial, because it does not tend to establish any proposition of legal significance to this litigation. The issues to be determined at this trial, including negligence, negligent entrustment, agency, negligent hiring and retention, and loss of consortium, can plainly be decided without any evidence relating to the existence of the unidentified witness. The fact that a third party may have witnessed the car collision and interacted with the parties following the collision does not make the existence of any material fact more or less likely.

Second, any evidence relating to the unidentified witness is irrelevant. “Relevancy tests the relationship between the evidence being offered and the point counsel is trying to prove.” Id. The strength of the relationship between evidence relating to the unidentified driver and liability and/or damages is nearly impossible to ascertain, because the Court has no way to verify any point Defendants attempt to prove by using such evidence. It is irrefutable the witness remains “unidentified,” and because there is no way to test the relevancy of unsubstantiated evidence, it should not be allowed.

The evidence is inadmissible under Md. Rule 5-403.

Plaintiffs contend that evidence relating to the unidentified witness to this car accident is neither material nor relevant. Even assuming (without conceding) that the evidence has some degree of relevance, it should nonetheless be barred under a Md. Rule 5-403 analysis. The rule provides that:

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.

Id.

The first step of the analysis is to determine what, if any, probative value the disputed evidence has. Probative value means the degree to which the proffered evidence tends to prove or disprove a fact at issue. Stated otherwise, probative value is “the tendency of evidence to establish the proposition that it is offered to prove.” Murphy, J., Maryland Evidence Handbook §501 (Matthew Bender 2009). Evidence that “has only a slight tendency to prove a fact of significance” has very little probative value. Paul W. Grimm & Matthew G. Hjortsberg, Fundamentals of Trial Evidence: State and Federal §4.2 (MICPEL 1997).

Here, the probative value of evidence relating to the unidentified witness to this car accident is minimal. The facts at issue in this case do not pertain to any actions or statements made by this witness. Moreover, since the witness remains unidentified he cannot be subjected to cross-examination. It is categorically unfair to admit evidence which Plaintiff’s counsel cannot challenge or develop through cross-examination. Admitting such evidence runs the risk of confusing the jury as to the facts at issue and is not a productive use of the Court’s time. As such, the evidence has very limited probative value.

Statements made by the witness are inadmissible hearsay.

“’Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). “Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” Md. Rule 5-802. The recognized exceptions contained in Md. Rules 5-803 and 5-804 (b) do not apply to any of the statements purportedly made by the unidentified witness. Evidence of any such statements is therefore inadmissible.

CONCLUSION

Clearly, both Maryland law, justice and fundamenial rules of fairness dicate the exclusion of the evidence.

Respectfully submitted,
MILLER & ZOIS, LLC

Ronald V. Miller, Jr.
Laura G. Zois
1 South St, #2450
Baltimore, MD 21202
(410) 779-4600
(410) 760-8922 (facsimile)
Attorneys for Plaintiff

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