Monthly Archives: October 2016

Trump University’s Motion to Preclude Evidence Explained.

By | October 22, 2016

News yesterday out of the Trump University litigation was that the “University” is requesting the judge to disallow “evidence and argument relating to statements made by or about Mr. Trump outside of the adjudicative process..”

What is Trump University Seeking to Preclude?

Some of the examples of the evidence in the civil case against Trump “U” that the defense seeks to preclude are:


Statements by campaign surrogates

Audio and video recordings made or publicized during the campaign…

Comments about this case or the Court…

Beauty pageants…

What is a Motion in Limine to Precluded Evidence in a Civil Lawsuit:

The type of evidentiary motion filed in this civil case is generally called a “motion in limine.” In common vernacular, such “motions in limine” are a “a pretrial motion to limit or exclude evidence.” Bd. of Cty. Comm’rs of Cty. of Morgan v. Kobobel, 176 P.3d 860, 862 (Colo. App. 2007).

Why Are Motions Filed to Preclude Evidence?

Used primarily in cases that are heard before the jury, the parties request that the judge rule on certain evidence prior to trial before evidence (such as documents or testimony) is seen or heard, or even a peep uttered by the lawyers before the jury. Motions in limine are routinely filed in criminal and civil cases, including business litigation and other commercial cases.  Applicable standards Colorado courts would apply to such request, which would be similar under the Federal Rules of Evidence in the Trump U case (set for trial in San Diego), are generally that the evidence is not admissible and will be precluded if it is irrelevant (under Rule 401), unduly prejudicial (under Rule 403), or improper character evidence (under Rule 404).

Applicable Law of Evidence for Civil Litigation:

As this case is essentially claiming fraud and misrepresentations about the offerings of Trump University,  the theories for precluding the types of evidence listed above if under similar doctrines of Colorado law are that:

  • Rule 401:  “Evidence is relevant, in the logical sense, as long as it is ‘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.’ ” Id.. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003) (quoting CRE 401)
  • Rule 403: “[R]relevant evidence must be excluded, if “its probative value is substantially outweighed by the danger of unfair prejudice.” Id.. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003) (quoting CRE 403).
  • Rule 404:  Guided by the principles above, the application of Rule 404 (Character evidence) is trickier as it tends to help a judge or jury determine what whether the evidence (that is relevant) ought to be believed.  Frequently, this type of evidence appears, on its face, to be wholly irrelevant as to substance, but its relevancy may be admitted  to assist the jury in evaluating the credibility of a witness.

In general, we favor the admission of relevant evidence but exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ….” CRE 403. Consistent with this principle, evidence of a person’s character or character trait is barred under Colorado Rule of Evidence 404(a) for the purpose of proving that on a particular occasion the person acted in conformity with his character or character trait. CRE 404(a). Exceptions to CRE 404(a) apply for limited purposes and in limited circumstances. See People v. Gaffney, 769 P.2d 1081, 1085–87 (Colo.1989). As relevant here, the exception provided by Rule 608 permits the admission of opinion or reputation evidence to bolster or impeach the credibility of a witness.

Liggett v. People, 135 P.3d 725, 731 (Colo. 2006)