Motion in Limine Builder: Rule 404(b) and 609

Build Your 404(b) / 609 Exclusion Grounds

Check the boxes that match the State’s prior-bad-act evidence and any prior conviction it wants to use for impeachment. The builder returns the specific rules and cases your motion in limine can invoke, with the closest motion templates. It runs entirely in your browser — nothing you enter is sent anywhere.

The Rule 404(b) Propensity Bar and Its Permitted Purposes

Rule 404(b) draws a sharp line. Evidence that a defendant committed some other crime, wrong, or act is not admissible to prove character in order to show that the defendant acted “in conformity” with that character on the charged occasion. This is the propensity bar: the State may not argue, in substance, that because the defendant did something bad before, the defendant probably did the bad thing charged now.

The same rule then lists purposes for which the identical evidence may be admissible — proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. That list is illustrative, not exhaustive. The dividing question is whether the act has any relevance apart from the forbidden character-conformity inference. If its only logical force runs through “bad person, therefore guilty,” it stays out. If it makes a genuinely disputed fact — who did it, whether it was an accident, whether there was a plan — more or less probable without relying on character, the door opens.

Two limits keep that door from swinging too wide. First, the permitted purpose must actually be in dispute: offering an extraneous act to prove intent means little if intent is conceded. Second, the jury must be able to find that the act happened at all. In Huddleston v. United States, 485 U.S. 681 (1988), the Supreme Court held the trial judge need not make a preliminary finding that the other act occurred; the evidence comes in only if a jury could reasonably find, by a preponderance, that it occurred and that the defendant was the actor. Texas follows the same structure: under Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991), once a Rule 404(b) objection is lodged, the proponent must show the evidence has relevance beyond character conformity, and evidence lacking that relevance is inadmissible.

The Rule 403 Balancing Test

Clearing Rule 404(b) is not the end. Evidence offered for a proper purpose must still survive Rule 403, which lets a court exclude relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury. “Unfair” is the operative word: evidence is not excluded merely because it hurts, but because it invites a decision on an improper basis — the very propensity inference Rule 404(b) forbids.

Two ideas drive the balancing. The first is evidentiary alternatives. In Old Chief v. United States, 519 U.S. 172 (1997), the Court held that when a defendant offers to concede a point and the concession carries the same probative value with far less prejudice, a court can and sometimes must discount the more inflammatory proof. The naming and detail of a prior act often add prejudice without adding probative weight the State genuinely needs.

The second is the factor list from Montgomery: how strongly the act proves a fact that is actually in dispute; the act’s potential to impress the jury in an irrational but indelible way; how much trial time it will consume; and the proponent’s real need for it given other available evidence. Rule 403 tilts toward admission — relevant evidence is presumed more probative than prejudicial — so the defense carries the burden of showing the balance actually tips the other way. A limine motion is where that showing is made, item by item, before the jury ever hears the prosecutor say the words.

Impeaching a Testifying Defendant Under Rule 609

Rule 609 governs a different problem: using a witness’s prior conviction to attack credibility. When the witness is the defendant, the stakes are highest, and the rule builds in extra protection depending on the kind of conviction.

Felony that is not a crime of dishonesty — Rule 609(a)(1)

For a testifying defendant, the conviction is admissible only if its probative value on credibility outweighs its prejudicial effect to that defendant. That flips the usual Rule 403 presumption, which excludes only when prejudice substantially outweighs probative value. The defense argues the old felony says little about truth-telling and a great deal about the risk the jury will convict on character.

Crime of dishonesty or false statement — Rule 609(a)(2)

If proving the offense required proving — or the witness admitting — a dishonest act or false statement (crimen falsi: perjury, fraud, forgery, false pretenses), the conviction must be admitted, with essentially no Rule 403 discretion, because it bears directly on truthfulness. Here the realistic relief is to limit the naming and detail and to request an instruction that the conviction bears only on credibility.

Convictions older than ten years — Rule 609(b)

If more than ten years have passed since the conviction or release from confinement, whichever is later, the conviction is presumptively inadmissible. It comes in only if its probative value, supported by specific facts, substantially outweighs its prejudicial effect, and, in federal court, only after advance written notice. This is often the strongest 609 exclusion lever.

Texas Rule 609 parallels the federal rule but frames the first category as a felony or a crime of moral turpitude, admissible only if probative value outweighs prejudicial effect to a party, and it applies its own multi-factor balancing plus the same ten-year limit. Either way the analysis is conviction-specific — the defense addresses each prior conviction on its own facts.

Motion in Limine Versus Motion to Suppress

A motion in limine and a motion to suppress are often confused because both try to keep evidence out, but they rest on different authority and produce different rulings.

A motion to suppress is a constitutional remedy. It argues that evidence was obtained in violation of the Fourth, Fifth, or Sixth Amendment — an unlawful stop or search, an un-warned or involuntary statement, a tainted identification — and asks the court to exclude it entirely. A suppression ruling is typically a final pretrial determination of admissibility; if evidence is suppressed, the State cannot use it at all.

A motion in limine is an evidentiary and case-management tool. It asks the court to decide, before the jury hears it, whether specific evidence is admissible under the rules of evidence — here Rules 404(b), 403, and 609 — and, at a minimum, to require the prosecutor to approach the bench before mentioning it. Its central purpose is to prevent the jury from being exposed to prejudicial material that may turn out to be inadmissible, and a limine ruling is often provisional.

The two motions frequently work together. If a statement was taken in violation of Miranda, the defense moves to suppress it; if the statement is admissible but references a prior arrest, the defense uses a motion in limine to keep that reference from the jury. See the firm’s motion to suppress a statement and motion to suppress evidence guides for the constitutional track.

Preserving the Issue for Appeal

Winning a favorable limine ruling is only half the job; the defense must also protect the issue for appeal. Because a limine ruling is preliminary, an appellate court usually will not review it unless the objection is renewed at the moment the evidence is actually offered at trial. Many lawyers request a running objection to avoid interrupting repeatedly, but the safest course is to object again when the evidence comes in.

Rule 609 adds a strict preservation trap. In Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that a defendant who does not testify cannot appeal a ruling that a prior conviction would have been admissible for impeachment. The reasoning: without the defendant’s actual testimony, a reviewing court cannot weigh probative value against prejudice or judge whether any error was harmless, and the ruling itself may change as the case develops. The practical consequence is significant — if the court denies the limine motion and the defendant then stays off the stand to avoid the conviction, the issue is lost. Counsel and client should weigh that trade-off deliberately before trial.

Texas Rules 404, 403, and 609

Texas tracks the federal framework closely, with a few local features worth knowing.

• Tex. R. Evid. 404(b) uses the same character-conformity bar and the same illustrative list of permitted purposes, and it adds a notice feature: on a defendant’s timely request, the prosecutor must give reasonable notice before trial of extraneous-offense evidence it intends to offer in its case-in-chief.
• Tex. R. Evid. 403 mirrors the federal balancing test, and Montgomery supplies the factor list Texas courts apply.
• Tex. R. Evid. 609 reaches felonies and crimes of moral turpitude, applies a probative-versus-prejudicial test, and imposes the same ten-year limit.
• At the punishment stage, Tex. Code Crim. Proc. art. 37.07 §3(g) requires notice of extraneous offenses and bad acts, and art. 38.37 governs certain offenses involving children.

Because the notice rules carry deadlines, the defense usually files a written request early — see the Motion for Notice of Extraneous Offenses — and then uses the motion in limine to police what the jury actually hears once the notice is in hand.

Turning the Grounds Into a Motion

The builder above converts your fact pattern into a list of grounds, but a court acts on a written motion, not a checklist. A workable motion in limine does three things for each item: it identifies the specific evidence (the prior act or conviction), it states the rule that bars or limits it (404(b), 403, or 609), and it asks for concrete relief — an order excluding the evidence, or at least an order requiring the prosecutor to approach the bench before mentioning it so the court can rule outside the jury’s hearing.

Pair the grounds this tool produces with the firm’s motion in limine guide for the drafting framework, and file the notice motion early so you know what the State intends to use. Every case turns on its own record and a judge’s discretion is wide, so treat the output as an organized starting point for a conversation with your defense lawyer, not a prediction of how any court will rule.

The Case Law Behind This Tool

The controlling decisions this tool is built on—each verified against the published opinion. Holdings are neutral summaries of the law, not predictions about any case.