Civil and criminal court litigators—beware. A recent decision of the Pennsylvania Superior Court, in a criminal appeal, has radically upset the calculus lawyers must perform if they lose a motion in limine and want to decide whether to front (or “own”) the bad fact. Doing so may now cost a litigant the chance to claim error on appeal.

Until Dec. 23, 2022, the sage advice was simple—if a motion in limine to exclude damning proof was denied, the party who lost would then own the fact. “It is common practice for the party who calls a witness who has a criminal record to bring out the prior conviction on direct examination … an anticipatory disclosure designed to reduce the prejudicial effect of the evidence if revealed for the first time on cross-examination.” See 1 Ohlbaum on the Pennsylvania Rules of Evidence Section 609.09 (2022). And if the trial was lost, appeal the in limine ruling.