concurring in part, dissenting in part, and concurring in judgment.
I agree with the court that the judgment be affirmed. But I am concerned with the court’s attempt to construct a rule distinguishing a definitive and a conditional ruling on a motion in limine. At the outset, however, I should note the points of agreement I have with the court. Regarding the merits, I agree with the ■ court that irrespective of the motion in limine, Wilson’s counsel had the obligation to object to the use of the term “cop-killer” by defense counsel, because the motion in limine did not address this issue. I further agree with the court that saying “cop-killer” is not plain error because of the possibility that this evidence would prejudice the jury against Wilson. Even without the “cop-killer” comments, the jury would know that Wilson was in jail, and the jurors would be entitled to know that Wilson had been convicted of murder. Fed.R.Evid. 609(a). This evidence would certainly impinge on Wilson’s credibility. But Wilson being a copkiller, instead of just another convicted murderer, offers a unique motive for prison guards singling him out and beating him. Arguably, Wilson’s case was stronger with this revenge-motive evidence than without it.
Beyond the facts of this case, however, the rule the court constructs to regulate motions in limine may create more problems than it solves. The court concludes a motion in limine is definitive when the judge’s ruling is -not tentative and does not depend on a condition being satisfied. Inevitably this invites satellite litigation over whether a ruling is definitive or conditional.
A pre-trial motion in limine serves two valuable purposes. The first is to allow the court and the parties to argue eviden-tiary issues in detail, avoiding significant delay after a jury has been impaneled. Thereby, when the issue presents itself during trial, counsel need do no more than renew the motion in limine (or the objection thereto). If, as the trial evidence develops, the district court is of the same opinion as before trial, the judge merely has to incorporate his reasoning in denying (or granting) the motion in limine. This is neither time-consuming nor difficult. The second benefit of the motion is to alert the district court to evidentiary issues which are potentially prejudicial in their nature. Rule 103(c) of the Federal Rules of Evidence already recognizes this concern, and directs district courts to conduct proceedings “so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof ... in the hearing of the jury.” A motion in limine allows counsel to apprise the district court of these potential issues, so that when (and if) they arise during the proceedings, the district court will be positioned to excuse the jury or call a sidebar if necessary. And if the factual basis of the motion in limine was accurate, and the judge sees no need to revisit the issue, the attorneys and court may simply incorporate the motion in limine material by reference, without alerting the jury to their substance. Or, if necessary, opposing counsel can make an offer of proof when the jury isn’t present. Neither of these purposes are substantially advanced by the court’s definitive/conditional test.
*576I also have concerns over how this court will be able to assess whether a definitive evidentiary ruling made in advance of trial would be sufficiently prejudicial to warrant reversal. When counsel on appeal argues that the case would have been tried in a completely different fashion but for an erroneous ruling on a motion in limine, will we have to envision an entirely different trial, and anticipate what the result would have been, in order to determine whether the error was harmless? One alternative, to grant an automatic reversal, would no doubt stop district courts from granting definitive motions in limine.
I echo the sentiments of Judge Diane P. Wood in concluding that even now, the prudent practice will be to renew all objections at trial, thus avoiding equivocation over whether the ruling in place will suffice. I also share the concerns of Judge Coffey regarding the practicality of this rule. Very little will change before the district courts, but I expect that this court will face appeals over whether a “definitive” ruling covered evidence entered without objection. I also question establishing a presumptive rule, that motions in limine are definitive, when most motions will fall under the conditional exception. In my view, the bright line rule always requiring an objection or offer of proof is the most efficient, most straightforward, and most fair rule that we can adopt.