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.

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. A motion never ruled on preserves nothing, and neither does one the judge put off.

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. 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 Required for a Finding of Not Guilty

Mass. R. Crim. P. 25 governs. Under Rule 25(a), 378 Mass. 896 (1979), the judge “on motion of a defendant or on his own motion shall enter a finding of not guilty of the offense charged in an indictment or complaint or any part thereof after the evidence on either side is closed if the evidence is insufficient as a matter of law to sustain a conviction on the charge.”

The sole question is whether the Commonwealth presented sufficient evidence of guilt to warrant submitting the case to the jury. Commonwealth v. Kelley, 370 Mass. 147 (1976). The governing formulation 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 jury was instructed correctly on the burden of proof. The judge 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.

Rule 25(b)(1) provides a tactical option that is easy to overlook. Where the motion is made at the close of all the evidence, the judge may reserve decision, submit the case to the jury, and decide the motion either before the jury returns a verdict or after.

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 when the Commonwealth rests: sufficiency is measured on the 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 (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 the judge reappraises sufficiency in light of everything presented.

Deterioration is narrow: it occurs “not because the defendant contradicted the Commonwealth’s evidence . . . but because evidence for the Commonwealth necessary to warrant submission of the case to the jury is later shown to be incredible or conclusively incorrect.” Commonwealth v. O’Laughlin, 446 Mass. 188 (2006), quoting Kater v. Commonwealth, 421 Mass. 17, 20 (1995). Conflicting defense testimony creates a jury question rather than a required finding.

For a concrete example of deterioration, see Commonwealth v. Vaughn, 23 Mass. App. Ct. 40, 42 to 43 (1986), discussed in O’Laughlin, where evidence that the defendant was incarcerated at the time of the incident created reasonable doubt as a matter of law.

A complete failure to move does not forfeit appellate review of sufficiency, because convictions 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 to 868 (1986). Accord Commonwealth v. Watkins, 486 Mass. 801, 805 (2021). There is a cost to relying on that, however. Review is then for substantial risk, and the analysis is not confined to the Commonwealth’s case in chief. Move anyway.

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

The distinction between the rule’s two sentences governs what relief remains available.

The first sentence permits a defendant whose motion for a required finding was denied to renew it within five days after the jury is discharged, and to include in the alternative a motion for a new trial.

The second sentence permits the judge to set aside the verdict and order a new trial, to order the entry of a finding of not guilty, or to order the entry of a finding of guilty of any offense included in the offense charged. The second sentence has no time limit at all.

The authority is explicit. “Nor is there any time limit on the filing of a motion under the second sentence of rule 25(b)(2). This absence of a time limit . . . is paralleled by the absence of any time limit on the filing of a motion for a new trial under Mass. R. Crim. P. 30(b).” Commonwealth v. Keough, 385 Mass. 314, 317 to 318 (1982).

The Supreme Judicial Court reaffirmed the point recently: “[t]he rule does not include an express limit on the time period in which a judge may provide such relief . . . we have upheld the reduction of jury verdicts even after direct appeal of a conviction of murder in the first degree and even by a judge other than the trial judge,” and “motion judges retain discretionary authority under rule 25(b)(2) to reduce a jury’s verdict even after a defendant’s conviction has been affirmed on direct appeal.” Commonwealth v. Rogers, 494 Mass. 629 (2024).

Counsel who calendar the five days and treat that as the end of Rule 25(b)(2) relief will forgo the reduction remedy in cases where it remains available.

The reduction power is the option 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 in the case, although technically sufficient to support the jury’s verdict, points to a lesser crime.” Commonwealth v. Grassie, 476 Mass. 202 (2017), quoting Commonwealth v. Rolon, 438 Mass. 808, 821 (2003). In acting on such a motion the judge may consider and credit the defendant’s testimony, particularly where it stands uncontroverted. Keough.

Rogers also states the constraints. Any reduction must be to a lesser included offense, “the lesser included offense must be unaffected by the error warranting the reduction,” and a reduction “is not justified when it ‘would be inconsistent with the weight of the evidence’ or is ‘based solely on factors irrelevant to the level of offense proved,’” quoting Commonwealth v. Sanchez, 485 Mass. 491, 504 to 505 (2020). A judge who reduces a verdict is expected to state the reasons. Commonwealth v. Woodward, 427 Mass. 659, 669 (1998), discussed in Grassie.

Murder reduced to manslaughter is the classic example, but the power extends to any charge with a lesser included offense, and in a close case the renewed motion should brief the reduction alternative expressly. Rules 25(b)(2) and 30(b) overlap in significant respects and function as complementary routes to the same relief. Rogers.

G.L. c. 278, § 11 remains in force, but it is narrower than Rule 25(b)(2), not parallel to it. Section 11 permits the judge only to “set aside the verdict and order a new trial, or order the entry of a finding of guilty of any offense included in the offense charged.” It does not authorize entry of a finding of not guilty. That relief exists only under the rule.

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. A deferred ruling is not a denial, and it preserves nothing. 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 cost little, they occasionally end the case, 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