A Practitioner’s Guide to Trial Motion Practice in Massachusetts Criminal Cases

Three decisions recur in nearly every Massachusetts criminal trial: which evidence to challenge before the jury hears it, when to object once the testimony begins, and how to attack the sufficiency of the Commonwealth’s proof. Each decision has a settled legal framework, and each carries preservation consequences that fix the standard of review on appeal.

This guide collects the governing standards for all three stages: the motion in limine, the trial objection and its related motions, and the motion for a required finding of not guilty under Mass. R. Crim. P. 25.

The Function and Timing of Motions in Limine

By a motion in limine, counsel asks the judge to rule on the admissibility of identified evidence before the jury hears it, keeping irrelevant, inadmissible, or unfairly prejudicial matter from reaching the jury at all; the judge who rules on it exercises the same discretion that governs any decision to admit or exclude evidence. Commonwealth v. Tantillo, 103 Mass. App. Ct. 20 (2023). Such motions are “properly made and considered before and during trial, in advance of the evidence being offered.” Commonwealth v. Spencer, 465 Mass. 32, 42 (2013). The need for a ruling often becomes apparent only after the evidence begins, and a motion made during trial is timely if it precedes the offer.

A ruling in limine is preliminary. The judge who ruled before trial may reconsider once the evidence supplies context, and the Supreme Judicial Court has described any harm from an in limine ruling standing alone as purely speculative for exactly that reason. Commonwealth v. Jones, 464 Mass. 16, 18 (2012). The common defense subjects are prior bad acts, the scope of first complaint testimony, expert foundations, and hearsay embedded in police reports; prosecutors use the same device to exclude third party culprit evidence and prior false allegations, so the defense litigates these motions as movant and as opponent.

The Contents of an Effective Motion in Limine

A well drafted motion identifies the witness, the specific testimony or exhibit at issue, the precise legal ground, the supporting authority, and the ruling requested, and it cites or attaches the discovery that shows what the testimony will be. Where total exclusion is unlikely, the motion proposes alternatives: redaction, limits on wording, or a requirement of sidebar approval before the subject is opened.

Precision in drafting now has direct appellate consequences. An objection raised by motion in limine preserves appellate rights “only if what is objectionable at trial was specifically the subject of the motion in limine.” Commonwealth v. Grady, 474 Mass. 715, 719 (2016). A motion aimed broadly at whether a witness may testify is not the same as a motion aimed at particular testimony the witness might give, and testimony that goes beyond what the judge resolved before trial requires a fresh objection when it arrives.

When the defense is the proponent, the motion should include an offer of proof: the substance of the expected testimony, its source, and the theory of admissibility. The offer of proof gives the judge a concrete basis for the ruling and gives the appellate court a record showing what was excluded and why it mattered.

Preservation After a Ruling in Limine

For decades a motion in limine, seeking a pretrial evidentiary ruling, was insufficient to preserve appellate rights unless counsel also objected when the evidence was offered at trial. Jones, 464 Mass. at 18. In Grady, the Supreme Judicial Court changed that rule for rulings admitting evidence over a defense challenge: a defendant who moves before trial to preclude specific evidence, and whose motion is heard and denied, need not object again when the Commonwealth offers the same evidence at trial, and the pretrial objection preserves the claim whatever its basis, constitutional or otherwise. Grady, 474 Mass. at 719.

Two limits accompany the holding. First, the motion must have been heard and denied; a motion never ruled on preserves nothing. Second, preservation extends only to what was specifically the subject of the motion, so counsel must still object at trial to anything outside the pretrial ruling. The court also cautioned judges against announcing that a defendant’s rights are “saved,” because the assurance may lull counsel into silence at trial. See Grady, 474 Mass. 715. Counsel should make the trial record anyway.

The rule is different for rulings excluding evidence. Grady addressed the defendant as objecting party; where the defense is the proponent and a motion in limine seeking to admit evidence is denied, counsel must renew the request at trial. The Supreme Judicial Court has explained that counsel can seek a sidebar conference, at the close of the Commonwealth’s case or before or during the defendant’s testimony, and there proffer the evidence again or object to its exclusion. Jones, 464 Mass. at 18-19. Counsel who accept a pretrial exclusion in silence leave the claim unpreserved.

The Objection at Trial

An objection preserves error only when it is timely and when it is made “in a form or context that reveals the objection’s basis.” Commonwealth v. Bonds, 445 Mass. 821, 828 (2006), interpreting Mass. R. Crim. P. 22, 378 Mass. 892 (1979). A bare “objection” is enough where the ground is obvious from the setting; where more than one ground is possible, counsel should state the ground and make certain it appears on the record.

The ground stated at trial controls the appeal. A defendant who advanced precise grounds at trial in support of an objection may not rely on a different ground on appeal. Commonwealth v. Carlson, 448 Mass. 501, 506 (2007). An objection on relevance does not preserve a hearsay claim. The moment of objection is a moment of issue selection, and counsel should name every ground that genuinely applies.

When the question was proper but the answer was not, or when the answer arrives before counsel can rise, the remedy is a motion to strike, coupled with a request that the jury be instructed to disregard the answer; the Supreme Judicial Court has recognized the motion to strike as the proper means of eliminating an answer that is objectionable on substantive grounds or nonresponsive. See Grady, 474 Mass. 715. An objection without a motion to strike leaves the answer in evidence.

Two further requests belong in every trial lawyer’s repertoire. A request for sidebar lets counsel state grounds fully without emphasizing the disputed testimony in front of the jury, and it is the natural place to renew a ruling in limine or make an offer of proof. A request for voir dire of a witness, outside the jury’s presence, lets counsel test the qualifications of an expert, the basis for an identification, or the designation of a first complaint witness before the jury hears the disputed material.

Judges sometimes permit a standing objection to a recurring line of evidence. Careful counsel treat its scope as narrow: confirm on the record exactly what subject and what ground the standing objection covers, and object anew when the testimony moves to different matter or a new ground emerges.

Preserved Error and Unpreserved Error

The consequence of preservation is the standard of review. A preserved evidentiary error is reviewed for prejudicial error: the error is nonprejudicial only if the reviewing court can be sure that it “did not influence the jury, or had but very slight effect,” and if the court cannot say with fair assurance that the judgment was not substantially swayed by the error, reversal follows. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

An unpreserved error is reviewed only for a substantial risk of a miscarriage of justice, which exists when the court has a “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). Relief requires yes answers to four questions: error, prejudice to the defendant, material influence on the verdict in the context of the entire trial, and a failure to object that was not a reasonable tactical decision; the Supreme Judicial Court has described such relief as seldom granted. The difference between the two standards is the practical consequence of a missed objection.

Curative Instructions, Mistrials, and the Decision Not to Object

When improper testimony reaches the jury, the ordinary sequence is a sustained objection, an order striking the answer, and a curative instruction. Jurors are presumed to follow a judge’s clear instructions to disregard stricken testimony. Commonwealth v. Auclair, 444 Mass. 348, 358 (2005). Whether to declare a mistrial rests in the trial judge’s discretion, and where the instruction is prompt and the jury does not hear the inadmissible evidence again, a mistrial is generally unnecessary. Commonwealth v. Kilburn, 426 Mass. 31, 37-38 (1997).

A motion for a mistrial should therefore be made promptly, should identify the prejudice precisely, and should explain why an instruction cannot cure it, as with testimony revealing a prior incarceration or an accusation too inflammatory to be undone. Counsel should also state a position on the curative instruction, because the two remedies interact. Sometimes the defense should decline the instruction: a curative instruction repeats the testimony and fixes attention on it, and a brief improper answer may do less damage if nothing more is said. Counsel who decline for that reason should say so on the record, with the reason, so that the choice reads as strategy rather than abandonment of the objection.

The same calculus governs the decision not to object at all. An objection in front of the jury can emphasize testimony that would otherwise pass unnoticed, and experienced trial lawyers sometimes let a marginal answer go for that reason. The consequences must be understood in advance: silence leaves the claim unpreserved, review drops to the substantial risk standard, and under Randolph a failure to object that the record shows to be a reasonable tactical decision forecloses relief altogether. Tactical silence is a waiver, chosen once and binding on appeal, and it should be chosen only when the testimony is not worth the emphasis an objection would give it.

The Motion for a Required Finding of Not Guilty

Mass. R. Crim. P. 25 governs the motion for a required finding of not guilty, the successor to the directed verdict motion of G. L. c. 278, § 11. The sole question raised by the motion is whether the Commonwealth presented sufficient evidence of the defendant’s guilt to warrant submitting the case to the jury. Commonwealth v. Kelley, 370 Mass. 147, 150 (1976). The governing question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

Latimore rejected the older approach under which some evidence on each element, however slight, defeated the motion: the evidence must be enough to satisfy a rational factfinder of each element beyond a reasonable doubt, and a conviction on legally insufficient evidence cannot stand even where the judge instructed the jury flawlessly on the burden of proof. The judge deciding the motion does not weigh the defense case against the Commonwealth’s; the question is what the evidence permits, viewed in the light most favorable to the Commonwealth, notwithstanding contrary evidence offered by the defendant. Kelley, 370 Mass. at 150.

Timing, Renewal, and the Deteriorating Evidence Doctrine

The motion must be made at the close of the Commonwealth’s evidence, and if the defense then presents a case, it must be renewed at the close of all the evidence. The defendant’s rights become fixed at the moment the Commonwealth rests: sufficiency is measured on the Commonwealth’s case in chief alone, and a defense case that follows cannot repair a deficiency in it. Kelley, 370 Mass. at 150 n.1; Commonwealth v. Berry, 431 Mass. 326, 331 (2000).

On renewal, one further theory becomes available: the Commonwealth’s position may deteriorate between the close of its case and the close of all the evidence, and on renewal the judge reappraises sufficiency in light of everything presented. Deterioration is a narrow concept: it occurs not because the defense contradicted the Commonwealth’s evidence, but only where evidence necessary to the Commonwealth’s case is later shown to be “incredible or conclusively incorrect.” Commonwealth v. O’Laughlin, 446 Mass. 188, 203 (2006). Conflicting defense testimony creates a jury question, not a required finding.

A complete failure to move does not forfeit appellate review of sufficiency, because findings based on legally insufficient evidence are “inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). The motions still matter: they can end the case or a charge at trial, and both the rule and the statute provide for a renewed motion after the verdict, language that presupposes a motion made and denied during trial.

Relief After the Verdict Under Rule 25(b)(2)

Under Mass. R. Crim. P. 25(b)(2), as amended, 420 Mass. 1502 (1995), a denied motion for a required finding may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. On the renewed motion the judge may take any of three actions: set aside the verdict and order a new trial, order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged. Commonwealth v. Keough, 385 Mass. 314, 317-318 (1982). G. L. c. 278, § 11 provides parallel authority.

The third option is the one defense counsel most often overlook. A judge has broad authority under Rule 25(b)(2) to reduce a verdict despite legally sufficient evidence, where the weight of the evidence, although technically sufficient to support the verdict, points to a lesser crime. Commonwealth v. Grassie, 476 Mass. 202, 214 (2017). In acting on such a motion the judge may consider and credit the defendant’s testimony, particularly where it stands uncontroverted. See Keough, 385 Mass. 314. Murder reduced to manslaughter is the classic example, but the power reaches any charge with a lesser included offense, and in a close case the renewed motion should brief the reduction alternative expressly.

Arguing the Motion by Element

The motion should be argued with specificity, both to win it and to preserve it. A generally phrased motion for a required finding does not preserve a challenge to a specific theory of liability where the evidence supports an alternative theory; a defendant who contends that one theory fails must specify that basis to the judge. Berry, 431 Mass. at 331. When the defendant does specify, the Commonwealth’s case in chief fails on that theory, and the jury later returns a general verdict that does not differentiate between theories, the verdict cannot stand. The drafting lesson is concrete: name the crime, list the elements, identify the element the Commonwealth failed to prove, and address each theory and each indictment separately, asking for a ruling on each.

Arguing the motion this way directs the judge’s attention to the weakest element rather than the general impression of the case, sometimes produces a required finding on the most serious charge while lesser charges proceed, and leaves an appellate record framed element by element at the moment the Commonwealth’s proof was fixed.

Practice Pointers for the Defense

Before trial, inventory the Commonwealth’s evidence and file targeted motions in limine against the items that will hurt most, drafted with the specificity that Grady demands, and press every motion to a hearing and an explicit ruling. When a defense motion to admit evidence is denied, plan the point in the trial at which the proffer will be renewed on the record.

During the evidence, object on the ground that fits, move to strike answers that came in improperly, and use sidebar and voir dire to litigate foundation away from the jury. Treat curative instructions as a choice, not a reflex, and support any mistrial motion with a precise statement of incurable prejudice. Choose silence only deliberately, with the understanding that a tactical decision not to object waives the appellate issue.

At the close of the Commonwealth’s case, move for a required finding on every charge and every theory, element by element, and renew the motion at the close of all the evidence and again within five days after the jury is discharged, briefing deterioration where the record supports it and the Rule 25(b)(2) alternatives, including reduction to a lesser included offense. The motions cost little, they occasionally end the case, and they determine the terms on which every other issue will be reviewed.

Referring counsel may reach Attorney Serpa at 617.936.0201.

Last Reviewed: July 2026