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 has a settled framework, and each has 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 required for a finding of not guilty under Mass. R. Crim. P. 25.

For Attorney Serpa’s account of empanelment, see how I pick a jury in a Massachusetts criminal trial.

Attorney Serpa’s account of the opening statement appears in how I open a Massachusetts criminal trial.

Attorney Serpa describes how he uses these motions in practice, and which objections he declines to make at trial, in his own account of deciding when to object. The two motions that can end a case before trial are treated separately in how he researches and argues a motion to suppress or dismiss.

This page belongs to the Massachusetts criminal court practice section, which covers the courtroom stages from the first trial motion through sentencing.

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 the jury; 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 provides context, and the Supreme Judicial Court has described any harm from an in limine ruling standing alone as speculative for 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 against 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 showing 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.

In the Supreme Judicial Court’s September 2026 Hsu decision on abusive head trauma and medical expert testimony, the judge admitted the diagnosis but limited the experts’ causal wording, and the court approved that approach on the record presented.

Digital exhibits require the same specificity. A motion addressing digital evidence should identify the precise exhibit and each applicable ground, including authentication, authorship, hearsay, completeness, extraction testimony, and unfair prejudice.

Precision in drafting 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 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 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, quoting Commonwealth v. Whelton, 428 Mass. 24, 25 (1998).

Grady changed that rule for rulings admitting evidence over a defense challenge. “We will no longer require a defendant to object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied.” The Court also dispensed “with any distinction, at the motion in limine stage, between objections based on constitutional grounds and objections based on other grounds.” Grady, 474 Mass. at 719.

Grady abrogated the general rule stated in Jones, so a reader who follows the older citation lands on superseded law. And Grady applies prospectively only, to trials held after it issued on July 12, 2016. Commonwealth v. Andre, 484 Mass. 403, 414 & n.20 (2020). For an appeal from an earlier trial, the Whelton rule still governs.

Three requirements, not two. The Appeals Court set them out in Commonwealth v. Belnavis, 104 Mass. App. Ct. 798 (2024), and opened with a warning worth quoting: “There seems to be a common misconception that the filing of a motion of limine in a criminal case will always be adequate by itself to preserve review of an error. That is not the case.” The motion must involve the very same evidence, must have been heard and denied, and must have been made on the same ground raised on appeal.

Belnavis also identifies the problem that most often defeats preservation. A deferred or conditional ruling is not a denial. Where the judge said he would let the Commonwealth “elicit testimony to see if they can establish a foundation” and directed counsel to object at that point, the issue was unpreserved. Counsel preserves the issue only where the judge rules on the motion. Counsel should press for a ruling where the judge defers the motion.

The Court in Grady also cautioned judges against announcing that a defendant’s rights are saved or preserved, because the assurance “may lull a defendant into failing to raise a necessary objection at trial.” The companion rescript states the safe practice directly: “The better practice, therefore, is for a defendant to object at trial even if he or she has already raised an objection prior to trial.” Commonwealth v. Almele, 474 Mass. 1017, 1018 (2016).

Where the defense is the proponent, the safe course is to renew. Grady by its terms addresses a defendant who “sought to preclude” evidence and whose motion was “heard and denied.” No decision since has extended it to a defendant who is the proponent of excluded evidence, and Grady, Almele, and Belnavis each leave that question open.

The prudent course remains the one described in Jones: seek a sidebar, 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. 464 Mass. at 19. Treat that as sound practice rather than as settled law.

The Objection at Trial

An objection preserves error only when it is timely and made “in a form or context that reveals the objection’s basis.” Commonwealth v. Bonds, 445 Mass. 821 (2006), interpreting Mass. R. Crim. P. 22, 378 Mass. 892 (1979).

The stated-grounds requirement is judicial gloss rather than rule text. The rule provides that a party who objects “may state the precise legal grounds of his objection, but he shall not argue or further discuss such grounds unless the court calls upon him for such argument or discussion.”

The obligation to reveal the basis comes from the case law construing the rule, and Bonds says so: “We have consistently interpreted Mass. R. Crim. P. 22 . . . to preserve appellate rights only when an objection is made in a form or context that reveals the objection’s basis.” Under the second half of the rule, counsel does not argue the ground unless the court calls for argument.

A bare objection may suffice where the ground is apparent, but the authority for that is not Bonds, which found a standing relevance objection insufficient to preserve a character-evidence claim.

It is Commonwealth v. Lenane, 80 Mass. App. Ct. 14 (2011): “When objecting, counsel should state the specific ground of the objection unless it is apparent from the context,” quoting Commonwealth v. Marshall, 434 Mass. 358, 365 (2001), and “[t]he adequacy of an objection to preserve a claim of error must be assessed in the context of the trial as a whole,” citing Commonwealth v. Nardi, 452 Mass. 379, 395 (2008). Where more than one ground is possible, state the ground.

The ground stated at trial controls the appeal. “Where the defendant advanced precise grounds at trial in support of his objection, he may not rely on a different ground in his appeal.” Commonwealth v. Carlson, 448 Mass. 501 (2007). An objection on relevance does not preserve a hearsay claim. Name every ground that genuinely applies.

Motions to Strike

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 it. Commonwealth v. Womack, 457 Mass. 268, 272 to 273 (2010); Commonwealth v. Almele, 474 Mass. 1017, 1018 (2016).

An objection to the question that is overruled preserves the claim, and any resulting error is reviewed for prejudicial error. Womack, 457 Mass. at 272 to 273, citing Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). It is the sustained objection with no motion to strike, or the proper question that draws an improper answer, that requires the motion.

The consequence of omitting it is concrete. In Commonwealth v. Sepheus, 468 Mass. 160 (2014), counsel’s failure to move to strike a nonresponsive answer meant the answer became evidence in the case, and it was that answer which allowed the judge to deny the motion for a required finding of not guilty. The missed motion determined the outcome of the sufficiency ruling.

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. Treat its scope as narrow: confirm on the record exactly what subject and what ground it covers, and object anew when the testimony moves to different matter or a new ground emerges.

The Standards of Review

The consequence of preservation is the standard of review, and there are three rather than two.

Preserved nonconstitutional 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. Flebotte, 417 Mass. at 353, quoting Kotteakos v. United States, 328 U.S. 750, 764 to 765 (1946).

Preserved constitutional error is reviewed for harmlessness beyond a reasonable doubt. Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998). The question “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010). Some rights are “so basic to a fair trial that [their] infraction can never be treated as harmless error.” Vinnie, 428 Mass. at 163.

Unpreserved error is reviewed for a substantial risk of a miscarriage of justice, which exists when the court has “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 to 295 (2002).

Relief requires affirmative answers to four questions: error, prejudice to the defendant, material influence on the verdict in the context of the entire trial, and whether the court may infer from the record that counsel’s failure to object was not a reasonable tactical decision. Only if all four are answered yes may relief be granted, and the Supreme Judicial Court has described such relief as seldom granted in that context.

In a direct appeal from a conviction of murder in the first degree, the Supreme Judicial Court reviews the whole case under G.L. c. 278, § 33E for a substantial likelihood of a miscarriage of justice, a standard more favorable to the defendant, applied even to unpreserved claims.

Curative Instructions, Mistrials, and the Decision Not to Object

When the jury hears improper testimony, 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 and disregard the testimony.” Commonwealth v. Auclair, 444 Mass. 348 (2005). See Commonwealth v. Cameron, 385 Mass. 660, 668 (1982).

“Whether to declare a mistrial is within the trial judge’s discretion,” Commonwealth v. Kilburn, 426 Mass. 31 (1997), citing Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990), and “as long as the judge’s instructions are prompt and the jury do not hear the inadmissible evidence again, a mistrial is unnecessary,” Kilburn.

A mistrial motion 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. The full range of grounds, and the effect of a mistrial on a retrial, are set out on the firm’s page on mistrials in Massachusetts criminal cases. Counsel should also state a position on the curative instruction, because the two remedies interact.

Sometimes the defense should decline the instruction, since 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.

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.

Silence leaves the claim unpreserved and review drops to the substantial risk standard. Under Randolph, a tactical choice can also defeat relief, but it does so only where the record supports the inference that the failure to object was a reasonable tactical decision, as one of four questions that must all be answered yes.

Randolph further holds that where the failure to preserve is said to stem from ineffective assistance, the court does not evaluate ineffectiveness separately: “ineffectiveness is presumed if the attorney’s omission created a substantial risk, and disregarded if it did not.” Silence is therefore a serious choice with a real cost, and it should be made only where 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 requires the judge to enter a finding of not guilty, on the defendant’s motion or the judge’s own, when the evidence is insufficient as a matter of law to sustain a conviction. The motion is made when the Commonwealth rests, when the defendant’s rights become fixed, and it is renewed at the close of all the evidence. The judge asks whether the evidence, viewed in the light most favorable to the Commonwealth, would permit a rational factfinder to find every element beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 to 678 (1979).

After a guilty verdict, Rule 25(b)(2) permits the judge to set aside the verdict and order a new trial, enter a finding of not guilty, or reduce the verdict to a lesser included offense, and the reduction power has no time limit. The standard, the timing and renewal rules, reserved decisions, and the relief available after the verdict are covered in full on the page on the motion for a required finding of not guilty.

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. 326. Where 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.

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 to 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 Grady and Belnavis require, and press every motion to a hearing and an explicit ruling. Only an explicit ruling preserves the issue for appeal. When a defense motion to admit evidence is denied, plan the point 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. Object at trial even where a motion in limine was denied, because Almele names that as the better practice and it costs nothing. Treat curative instructions as a choice rather than a reflex, and support any mistrial motion with a precise statement of incurable prejudice.

At the close of the Commonwealth’s case, move for a required finding on every charge and every theory, element by element, and renew at the close of all the evidence. Renew again within five days after the jury is discharged under the first sentence of Rule 25(b)(2), and remember that the reduction and new trial powers under the second sentence are not subject to that deadline. Brief deterioration where the record supports it, and brief reduction to a lesser included offense in any case where the weight of the evidence points to a lesser crime.

The motions occasionally end the case outright, and they determine the terms on which every other issue will be reviewed.

Referring counsel may contact Attorney Serpa at 617.936.0201.

Last Reviewed: August 2026