MEMY-1805 marker2 court-us-v-maxwell-cr (salt 4090): 3145/3145

marker2/court-us-v-maxwell-cr/EFTA02835838/EFTA02835838.md

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+UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+x
+
+UNITED STATES OF AMERICA
+
+v.
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+x
+
+20 Cr. 330 (MN)
+
+GHISLAINE MAXWELL'S RESPONSE TO THE GOVERNMENT'S MOTION IN LIMINE TO PRECLUDE EXPERT TESTIMONY OF DR. PARK DIETZ AND DR. ELIZABETH LOFTUS
+
+> Jeffrey S. Pagliuca Laura A. Mennin er HADDON, 150 East 10th Avenue Denver, CO 80203 Phone: 303-831-7364 P.C.
+
+Christian R. Everdell & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: 212-957-7600
+
+Bobbi C. Sternheim Law Offices of Bobbi C. Stemheim 225 Broadway, Suite 715 New York, NY 10007 Phone: 212-243-1100
+
+Attorneys for Ghislaine Maxwell
+
+### TABLE OF CONTENTS
+
+|    | TABLE OF CONTENTS                                               |    |
+|----|-----------------------------------------------------------------|----|
+|    | TABLE OF AUTHORITIES INTRODUCTION AND SUMMARY OF THE ARGUMENT   | ii |
+|    | ARGUMENT                                                        | 2  |
+| I. | Dr. Dietz's Testimony is Admissible.                            | 3  |
+| A. | Response to Dr. Rocchio's Proposed Testimony                    | 4  |
+| B. | Hindsight Bias                                                  | 8  |
+| C. | The Halo Effect                                                 | 9  |
+| D. | Pathways to False Allegations of Sexual Assault                 | 11 |
+| E. | Dr. Dietz's Alleged Opinions about the Accusers' "Credibility." | 13 |
+| F. | Post-Traumatic Stress Disorder.                                 | 15 |
+|    | II. Dr. Loftus's Testimony is Admissible                        | 16 |
+|    | CONCLUSION                                                      | 22 |
+|    | Certificate of Service                                          | 24 |
+
+# TABLE OF AUTHORITIES
+
+#### Cases
+
+| 1962)                                                                                  | 8  |
+|----------------------------------------------------------------------------------------|----|
+| (S.D.N.Y.)                                                                             | 8  |
+| California v. Trombetta, 467 U.S. 479 (1984)                                           | 2  |
+| v. People, 814 P.2d 1 (Colo. 1991)                                                     | 21 |
+| Commonwealth v. =, 92 A.2d 766 (Pa. 2014)                                              | 21 |
+| Crane v. Kentucky, 476 U.S. 683 (1986)                                                 | 2  |
+| v. Alaska, 415 U.S. 308 (1974)                                                         | 2  |
+| Delaware v. Van Arsdall, 475 U.S. 673 (1986)                                           | 2  |
+| Gersten v. Senlcowski, 426 F.3d 588 (2d Cir. 2005)                                     | 8  |
+| Hygh v. , 961 F.2d 359 (2d Cir. 1992)                                                  | 11 |
+| In re Fosamax Prod. Liab. Litig., 645 F. Supp. 2d 164 (S.D.N.Y. 2009)                  | 12 |
+| In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994)                       | 5  |
+| Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)                                      | 12 |
+| Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558 (S.D.N.Y. 2007)                | 10 |
+| Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005)                                | 11 |
+| Olden v. Kentucky, 488 U.S. 227 (1988)                                                 | 2  |
+| Ruiz-Troche v. Pepsi Cola, 161 F.3d 77 (1st Gr. 1998)                                  | 5  |
+| State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795 (1986)                               | 18 |
+| State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983)                                  | 18 |
+| United States v. =, 557 F.2d 541 (6th Cir. 1977)                                       | 9  |
+| United States v. Cronic, 466 U.S. 648 (1984)                                           | 2  |
+| United States v. Downing, 753 F.2d 1224 (3d Cir. 1985)                                 | 18 |
+| United States v. Heine, No. 3:15-CR-00238-SI-2, 2017 WL 5260784 (D. Or. Nov. 13, 2017) | 16 |
+| United States v. , 860 F.3d at 1140 (8th Cir. 2017)                                    | 14 |
+
+| United States v. Jordan, 924 F. Supp. 443 (W.D.N.Y. 1996         | 22     |
+|------------------------------------------------------------------|--------|
+| United States v. Lumpkin, 192 F.3d 280 (2d Cir. 1999)            | 14     |
+| United States v. Mathis, 264 F.3d 321 (3d. Cir. 2001)            | 21     |
+| United States v. Moore, 786 F.2d 1308 (5th Cir. 1986)            | 17     |
+| United States v. Randall, No. 19 Cr. 131 (PAE) (S.D.N.Y.)        | 9      |
+| United States v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. 2006) | 21     |
+| United States v. M, 156 F.3d 1046 (10th Cir. 1998)               | 21     |
+| United States v. 621 F. Supp.2d 1207 (M.D. Ala. 2009)            | 21     |
+| United States v. M, 736 F.2d 1103 (6th Cir. 1984)                | 18     |
+| United States v. Smithers, 212 F.3d 306 (6th Cir. 2000)          | 18, 21 |
+| United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991)           | 18     |
+| United States v. Telles, 6 F.4th 1086 (9th Cir. 2021)            | 14     |
+| United States v. ffi , No. 20-CR-608 (DLC), 2021 WL 1947503      | 14     |
+
+## Other Authorities
+
+| Jed Rakoff and                                                                          | Albright, Identifying the Culprit: Assessing Eyewitness Identification |
+|-----------------------------------------------------------------------------------------|------------------------------------------------------------------------|
+| (Natl. Res. Counc. 2014)                                                                | 18                                                                     |
+| Rakoff J & Loftus EF, The intractability of inaccurate eyewitness identification (2018) | 18                                                                     |
+
+### Rules
+
+| Fed. R. Evid. 702                                            | passim       |
+|--------------------------------------------------------------|--------------|
+| Fed. R. Evid. 702, Advisory Committee Notes, 2000 Amendments | 5, 7, 10, 12 |
+| Fed. R. Evid. 703                                            | 6            |
+| Fed. R. Evid. 704                                            | 5            |
+
+#### Constitutional Provisions
+
+| U.S. Const. Amend. V .....  | 2, 3 |
+|-----------------------------|------|
+| U.S. Const. Amend. VI ..... | 2, 3 |
+
+Ghislaine Maxwell submits this Response to the Government's Motion in Limine to Preclude Expert Testimony of Dr. Park Dietz and Dr. Elizabeth Loftus.
+
+## INTRODUCTION AND SUMMARY OF THE ARGUMENT
+
+The government asks this Court to drastically limit the expert opinions of Dr. Park Dietz and Dr. Elizabeth Loftus. The government's motion seeks to unfairly capitalize on this Court's decision largely overruling Ms. Maxwell's Daubers challenge to the government's expert, Dr. Lisa Rocchio. If the government gets its way, Dr. Rocchio will present the jury with a one-sided version of events while Ms. Maxwell will be crippled in her ability to respond. This Court should not permit the asymmetry the government hopes to create.
+
+There is no dispute that Drs. Dietz and Loftus are supremely qualified in their respective areas of expertise. Attached as Exhibit 1 is the defense disclosure of the expert opinions of Dr. Dietz and Dr. Loftus. That 374-page document includes eleven exhibits (Exhibits A — K) describing the qualifications and bases of the opinions Ms. Maxwell's experts will offer at trial. Dr. Dietz is so well-regarded that Dr. Rocchio herself has relied on his opinions, Exhibit 2, p 58:1-24 (transcript of Nov. 10, 2021 hearing), and Dr. Loftus all but wrote the book on the science of memory.
+
+Unable to challenge the qualifications of either Dr. Dietz or Dr. Loftus, the government's motion mischaracterizes their proposed opinions in an effort persuade this Court that they either invade the province of the jury or are unhelpful to the finder of fact. This Court should not fall for the government's construction of strawmen.
+
+Beyond their responsiveness to Dr. Rocchio's testimony, Dr. Dietz's and Dr. Loftus's expert opinions are independently relevant because they will help the jury understand the facts of this case. To the extent the government contends these opinions don't "fit," that objection is flatout wrong or at least premature, since the government hasn't put any evidence on yet. Because
+
+the government's true objection is a question of fit, and because there is no dispute Dr. Dietz and Dr. Loftus are qualified, this Court should deny the government's motion.
+
+#### ARGUMENT
+
+"Whether rooted directly in the Due Process Clause ..., or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); see U.S. Const. amends. V, VI. A court violates a defendant's right to present a defense when it excludes competent and reliable evidence that is central to the defense. See Crane, 476 U.S. at 690. The exclusion of such evidence "deprives a defendant of the basic right to have the prosecutor's case encounter and `survive the crucible of meaningful adversarial testing.' Id. at 690-91 (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
+
+The Constitution also affords Ms. Maxwell the right to confront her accusers. U.S. amend. VI; Olden v. Kentucky, 488 U.S. 227, 231 (1988). "[A] criminal defendant states a violation of the Confrontation Clause by showing that [she] was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness." Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting v. Alaska, 415 U.S. 308, 318 (1974)).
+
+Federal Rule of Evidence 702 governs the admissibility of Dr. Deitz and Dr. Loftus's proposed testimony.
+
+A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
+
+(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
+
+- (b) the testimony is based on sufficient facts or data;
+- (c) the testimony is the product of reliable principles and methods; and
+- (d) the expert has reliably applied the principles and methods to the facts of the case.
+
+Fed. R. Evid. 702.
+
+As elaborated below, the proposed testimony of Dr. Dietz and Dr. Loftus fall squarely within the ambit of Rule 702.
+
+## I. Dr. Dietz's Testimony is Admissible.
+
+The government agrees that Dr. Dietz is qualified to offer expert opinion testimony under Rule 702. Even so, the government hopes to limit his testimony by claiming that six categories of his proposed opinions are either unreliable, irrelevant, or invade the province of the jury.
+
+The government, though, is trying to have it both ways, by eliciting testimony from its expert Dr. Rocchio while unfairly precluding Ms. Maxwell from responding. The government also seeks to foreclose Dr. Dietz from offering opinions that are independently relevant to this case, irrespective of Dr. Rocchio's testimony. To make its case, the government engages in the time-honored practice of mischaracterizing a defendant's position and then responding to the strawman.
+
+This Court should reject the government's efforts, which, if successful, will deprive Ms. Maxwell of her constitutional right to present a complete defense and to confront and crossexamine her accusers. U.S. Const. amends. V, VI.
+
+#### A. Response to Dr. Rocchio's Proposed Testimony.
+
+The government challenges what it characterizes as four opinions Dr. Dietz might offer in response to testimony from Dr. Rocchio.I As explained below, though, Dr. Dietz's testimony is responsive to Dr. Rocchio's testimony in more than the four narrow ways identified by the government. In addition, much of his proposed testimony has independent relevance. In any event, none of the government's challenges is persuasive.
+
+First, the government challenges Dr. Dietz's proposed testimony (1) that Dr. Rocchio's opinion on grooming "carries the risk of imputing motive and intent to the Defendant," that "Dr. Rocchio's proposed testimony is silent as to whether she is expected to impute a theory of `grooming-by-proxy' to the defendant," and that "Ms. Maxwell is not accused of soliciting or enticing sexualized massages for herself," but instead that she allegedly "recruited and groomed minors to provide sexualized massages for Mr. Epstein." Mot. at 10. The government says these three opinions are inadmissible "legal" conclusions suitable only for a Daubert hearing and not for the jury trial.
+
+It is perfectly appropriate for Dr. Dietz to opine that Dr. Rocchio's definition of "grooming" risks "imputing motive and intent" to the defendant because that is precisely why there is no settled, clinical definition of grooming, which the government has conceded is a proper subject of Dr. Dietz's expert opinions. Supra Note 1; Ex. 1, p 3-4. Surely Dr. Dietz can inform the jury why the science does not support Dr. Rocchio's definition of grooming.
+
+Dr. Dietz will not himself (and Dr. Rocchio cannot herself) ascribe motive or intent to Ms. Maxwell, nor will he testify that the jury lacks sufficient evidence to ascribe motive and
+
+The government agrees Dr. Dietz can inform the jury that Dr. Rocchio is wrong to suggest that grooming has a settled definition. Mot. at 9.
+
+intent to Ms. Maxwell. Cf Fed. R. Evid. 704 ("In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense."). Those are questions for the jury. Id. But the very purpose of Dr. Dietz's testimony on this point is to caution the jury about improperly inferring motive and intent from Dr. Rocchio's unreliable opinions because, as even Dr. Rocchio recognized in her testimony, behavior cannot be called "grooming" if it is not in furtherance of "attempted sexual abuse or actual sexual abuse or exploitation." Ex. 2, p 118:22- 14.
+
+Accordingly, if Dr. Dietz's opinions about Dr. Rocchio's conclusions are reliable—as the government does not dispute they are—"Daubers neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance." Fed. R. Evid. 702, Advisory Committee Notes, 2000 Amendments (quoting Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1998)). A court must admit competing expert opinions that are reliable and relevant, and then it's for the jury to decide which expert is correct. Id. ("[P]roponents 'do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable.... The evidentiary requirement of reliability is lower than the merits standard of correctness' (quoting In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994)).
+
+As for informing the jury that "Dr. Rocchio's proposed testimony is silent as to whether she is expected to impute a theory of 'grooming-by-proxy' to the defendant"2 and that "Ms.
+
+<sup>2</sup> It's not clear that Dr. Rocchio will be permitted to testify on this subject, as this Court has precluded her from opining that the presence of a third party can facilitate grooming. (Dkt.
+
+Maxwell is not accused of soliciting or enticing sexualized massages for herself," Ex. I, p 4, these are proper subjects of Dr. Dietz's testimony because they form the basis of his principal responsive opinion: Dr. Rocchio's opinions are unreliable generally and particularly in the context of this case. The Rules of Evidence are clear that an expert can inform the jury of the bases of his opinions. See Fed. R. Evid. 703.
+
+Second, the government claims that Dr. Dietz's reasoning is "circular." Mot. at 10. The government characterizes Dr. Dietz's opinion as follows:
+
+[lit is circular to say that "grooming" "imputes motive and intent," because grooming is defined to be a strategic pattern of behavior used to develop relationships of attachment and coercion between perpetrators and victims. That is, if the behaviors lack the requisite motive and intent, they are not grooming behaviors.
+
+Id. (citing Ex. 1, p 3). In an unconsciously revealing way, the government misunderstands Dr. Dietz's opinion.
+
+The government's objection to Dr. Dietz's opinion is the very objection that Dr. Dietz has to Dr. Rocchio's opinion. Dr. Dietz is critical of Dr. Rocchio's view of "grooming" because it risks imputing motive and intent to innocuous conduct "without adequate evidence of either." Ex. I, p 3. Dr. Dietz proposes to identify this circular reasoning for the jury, so jurors can evaluate Dr. Rocchio's testimony and decide whether it is worth of belief.
+
+The risk of imputing motive and intent is not abstract. After all, the government itself does so. In response to Ms. Maxwell's Rule 412 motion, the government flat out said that lelvidence of grooming is evidence of intent." Gov't Resp. to Rule 412 Mot., p 7.
+
+<sup>435,</sup> p 11). To the extent Dr. Rocchio offers testimony, however, addressing or implying "grooming-by-proxy," (terminology aside, id. at 10), Dr. Dietz's opinion is admissible as described herein.
+
+Third, the government says Dr. Dietz should not be permitted to testify that it is a "commonly accepted bit of clinical lore" that perpetrators often target vulnerable victims. Mot. at II. The government's argument misconstrues and misunderstands Dr. Dietz's point. Dr. Dietz does not dispute that vulnerable people can be and are targeted. Ex. 1, p 4. But what the science does not know, and what there is no data about, is how often perpetrators target individuals who are not characterized as "vulnerable." Id. There is no comparator, and there is thus no way to know how representative "vulnerable victims" are of all victims of abuse. Id. As Dr. Dietz will testify, experts do not know the empirical relationship between vulnerability and abuse. Id. Again, Dr. Dietz should be able to challenge the reliability of Dr. Rocchio's opinions by explaining how they lack scientific support. Fed. R. Evid. 702, Advisory Committee Notes, 2000 Amendments (Rule 702 "is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise.).
+
+Fourth, the government disputes Dr. Dietz's opinion that there is no authority supporting a "theory of grooming by proxy." Mot. at 11-12.3 Once again, though, the government misunderstands Dr. Dietz's point, and its argument is correspondingly non-responsive. The government says, for example, there is "ample literature on the pimp-prostitute relationship." Mot. at 12. Dr. Dietz does not deny this. But unless the government (to use its crude vernacular) is saying that the accusers were the prostitutes, Ms. Maxwell was the pimp, and Mr. Epstein was the John, this literature is beside the point and not applicable to this case. Ex. 1, p 4.
+
+\* \* \*
+
+<sup>3</sup> To the extent Dr. Rocchio offers testimony on this point, addressing or implying "grooming-by-proxy," Dr. Dietz's opinion is admissible as described herein. See also supra note 2.
+
+The government hopes Dr. Rocchio will fill in the gaps in the accusers' stories by lending the imprimatur of an "expert" to their allegations. The likely importance of her testimony to the government's case cannot be overstated.' Dr. Dietz, who the government admits is supremely qualified, should be allowed to challenge the reliability of Dr. Rocchio's opinions, explain why they lack support, and opine about their limits. See Brooklyn Waterfront Terminal Corp. v. Intl Terminal Operating Co., 211 F. Supp. 702, 707 (S.D.N.Y.), aff'd sub nom. Brooklyn Waterfront Terminal Corp. v. Intl Terminal Operating Co. Inc., 311 F.2d 221 (2d Cir. 1962) ("As in all cases, this sharp conflict between the experts must be resolved by the trier of the fact.").
+
+## B. Hindsight Bias.
+
+The government appears to have two objections about Dr. Dietz's opinions on hindsight bias: First, that the testimony improperly attempts to inform the jury what result to reach, and second that the testimony is "well within the ken of the average juror." Mot. at 13-14. The government does not dispute the reliability of Dr. Dietz's opinions, and as explained below, Dr. Dietz's testimony is independently relevant and relevant in response to Dr. Rocchio's testimony.
+
+The government's first argument once again misunderstands Dr. Dietz's point. Dr. Dietz's opinion is about grooming. In his expert opinion, and at most, behavior can be labeled "grooming" only after the fact and retrospectively—that is, only after it is clear abuse occurred. Ex. I, p 4-5. But the government's burden in this case is to prove that, at the time the abuse allegedly occurred, Ms. Maxwell knew about it and intended to facilitate it. If Ms. Maxwell
+
+<sup>4</sup> So important are Dr. Dietz's and Dr. Loftus's opinions to the defense that the failure to consult with and call them as witnesses would amount to ineffective assistance of counsel. See Gersten v. Senkowski, 426 F.3d 588, 607-08 (2d Cir. 2005) (defense counsel was ineffective in failing "to call as a witness, or even to consult in preparation for trial and cross-examination of the prosecution's witnesses, any medical expert on child sexual abuse").
+
+lacked actual knowledge of and intent to facilitate the alleged grooming and abuse, she is not guilty, even if, as a matter of hindsight, it should have been obvious.
+
+The government's second argument falls short as well. Although the phrase "20/20 hindsight" might be well-known, the power of hindsight bias and the degree to which it might unreliably affect the outcome of this case is not. To be sure, as Dr. Dietz laid out in his disclosure, the scientific literature about hindsight bias is voluminous. Ex. I, p 4-5. These expert articles wouldn't exist if the concept were obvious to everyone, and surely it wouldn't be the case that, as Dr. Dietz notes, "[e]ven individuals with specialized training and expertise succumb to hindsight bias," id. at 5.
+
+The government concedes that "the jury, and not the court, should be the one to decide among conflicting experts." Mot. at 9 (quoting United States v. Randall, No. 19 Cr. 131 (PAE) (S.D.N.Y.)). But for the jury to do that job, it must be equipped with the necessary tools. And one of those tools is Dr. Dietz's perfectly permissible opinion that Dr. Rocchio's testimony cannot carry the water the government wants it to because it is tainted by hindsight bias. See United States v.=, 557 F.2d 541, 556 (6th Cir. 1977) ("Conflicting testimony concerning the conclusions drawn by experts, so long as they are based on a generally accepted and reliable scientific principle, ordinarily go to the weight of the testimony rather than to its admissibility.").
+
+# C. The Halo Effect.
+
+The government has two objections to Dr. Dietz's opinions on the "halo effect." The first is that it is irrelevant (though, again, not unreliable). The second is that it improperly seeks to engender sympathy for Ms. Maxwell.
+
+First, the government is wrong to argue the testimony is irrelevant. Take just one (representative) example. Dr. Dietz opines that Mr. Epstein's
+
+flaws allowed him to use his brilliance to manipulate people to do his bidding and to compartmentalize people into isolated cells in which none had complete information about his activities.
+
+Ex. I, p 7. This testimony is patently relevant to Ms. Maxwell's knowledge and intent and to the conspiracy counts. If this "compartmentalization" prevented Ms. Maxwell from having the required knowledge or intent (an ultimate issue for the jury to decide, on which Dr. Dietz will not opine), then she will be not guilty. The government after all intends to ask the Court to instruct the jury on "willful blindness." The jury should have the benefit of a scientific understanding of the manner in which a skilled manipulator could have eluded exposure to those around him.
+
+The government obviously disagrees with Dr. Dietz in his evaluation of Mr. Epstein. But just because the government has a different view of the facts does not mean Dr. Dietz's testimony is inadmissible. Rule 702's emphasis on "sufficient facts or data" does not "authorize a trial court to exclude an expert's testimony on the ground" that the government "believes one version of the facts and not the other." See Fed. R. Evid. 702, Advisory Committee Notes, 2000 Amendments.
+
+The government's second objection is easily addressed. The point of the testimony is not to suggest jury nullification, which would be improper as defense counsel and Dr. Dietz well know. Mot. at 17. The testimony is relevant, as explained above. In any case, if the Court is concerned about any potential for Dr. Dietz's testimony to engender sympathy for Ms. Maxwell, the Court can give a limiting instruction. That limiting instruction would be in addition to the Court's written instructions, which already will instruct the jury not to decide the case based on sympathy or bias. Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 571 (S.D.N.Y. 2007) ("This Court has routinely relied upon limiting instructions to remind the jury of its role and of the limits of expert testimony and clarify the extent of their consideration of such
+
+testimony." (cleaned up)). The government's speculative concern about the effect of Dr. Dietz's testimony is no reason to exclude it when the Court has ample tools at its disposal to address the governments (ill-founded) worries.
+
+Almost as an aside, the government disingenuously suggests that Dr. Dietz's opinion is inadmissible because "it appears" to be based "solely on one interview of Epstein with Steven Bannon." Mot. at 17. As the government well knows, Dr. Dietz's opinion is based on much more. To be sure, Dr. Dietz quoted the interview in his disclosure, Ex. 1, p 6, but he also reviewed and considered thousands of pages of material before reaching his opinion, including most significantly all the material available to him about the Palm Beach Investigations of Mr. Epstein, Ex. I, p 166-69.
+
+### D. Pathways to False Allegations of Sexual Assault.
+
+The government misses the mark in its hyperbolic objection to Dr. Dietz's opinions about the multiple pathways to false sex assault allegations. Mot. at 18-22. The government claims these opinions invade the province of the jury are unreliable and unhelpful. Not so.
+
+First, the opinions do not invade the province of the jury because Dr. Dietz is not offering an opinion on the truthfulness of the accusers' allegations in this case. See Nimely v. City of New York, 414 F.3d 381, 395-96 (2d Cir. 2005) (expert testimony is inadmissible if it "comment[s] directly, under the guise of expert opinion, on the credibility of trial testimony from" specific fact witnesses.); cf. Hygh v. 961 F.2d 359, 364 (2d Cir. 1992) (expert not permitted to offer testimony that "merely [tells] the jury what result to reach"). Dr. Dietz's opinions rely on his clinical experience and the vast body of literature explaining how an accuser might come to falsely allege sexual assault.
+
+One point (but by no means the only one) of Dr. Dietz's opinion is to challenge the reliability of Dr. Rocchio's opinions, which she bases on the untested assumption that her
+
+patients are telling the truth when they claim to have been abused. See Ex. I, p 7 ("Studies concerning the accurate reporting of alleged sexual assaults undermine the assertions made by Dr. Rocchio to the extent they are based on uncorroborated allegations and are also otherwise relevant here."). Because, in Dr. Dietz's opinion, Dr. Rocchio does not make sufficient allowance for the potential that her patients are not telling the truth, the jury is entitled to know how and why that analytical flaw undermines her opinions. As even the government concedes, Mot. at 9, "the jury, and not the trial court, should decide among the conflicting views of different experts." In re Fosamax Prod. !Jab. Litig., 645 F. Supp. 2d 164, 173 (S.D.N.Y. 2009) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999)).
+
+Moreover, Dr. Dietz's opinions are directly relevant to evaluate the nature and timing of the disclosures by the alleged victims in this case. As Dr. Rocchio admitted during her testimony at her Dauber hearing, there are numerous reasons why a report of sexual assault might not surface immediately, including the various pathways to a false allegation identified by Dr. Dietz. Ex. 2, p 153-54.
+
+Nor are Dr. Dietz's opinions unreliable, as the government claims. Mot. at 20-21. First, Dr. Rocchio essentially admitted they were reliable during her testimony. Ex. 2, p 153-54.
+
+Second, if Dr. Dietz's reliance on the and O'Donohue article weren't enough (which it is), Dr. Dietz will testify as well based on his extensive clinical experience. In his own practice, he has personally seen ten of the eleven pathways to false allegations identified by & O'Donohue. Dr. Dietz thus could reliably offer these opinions even if the absence of the article. See Fed. R. Evid. 702, Advisory Committee Notes, 2000 Amendments. ("Nothing in this [rule] is intended to suggest that experience alone--or experience in conjunction with other knowledge, skill, training or education--may not provide a sufficient foundation for expert
+
+testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience.").
+
+Third, in admitting Dr. Rocchio's testimony over an objection by Ms. Maxwell similar to the one offered here by the government, this Court said as follows:
+
+Dr. Rocchio's opinions speak only to concepts and will not (and indeed may not) suggest that the jury find any alleged victim witness to be credible or to find Ms. Maxwell guilty.... It is the jury's role to determine whether and how Dr. Rocchio's opinions apply to the facts of this case and the credibility of the witnesses.
+
+(Dkt. 435, p 10). The same logic applies to Dr. Dietz's opinions.
+
+Finally, the government says the Dr. Dietz's opinions don't "fit the facts of the case." Mot. at 21. But because the accusers' stories have changed so much over the last twenty years, and because it's still unclear what they will testify to at trial, this objection is premature at best. If the government believes Dr. Dietz's opinions do not "fit" the facts, this Court can consider that argument once there is evidence of what the facts really are.
+
+# E. Dr. Dietz's Alleged Opinions about the Accusers' "Credibility."
+
+Nowhere in Dr. Dietz's expert disclosure does he propose to opine on the credibility of Ms. Maxwell's accusers. Ex. I. The government can argue otherwise only by mischaracterizing his opinions. See Mot. at 22-23.
+
+For one thing, Dr. Dietz should be able to critique Dr. Rocchio's methods and conclusions by opining that experts in the field would not be "so credulous" as Dr. Rocchio is. See Gov't Omnibus Resp. to Maxwell Mot. in Limine, at 16; Ex. 2, p 16:11-16 (Dr. Rocchio: "In my clinical practice, it's not — I have to deal with what the patients tell me in the room. It's not my job to go out and verify any part of what's being told in the clinical room, but, rather, to hear what they're telling me and then relate that back to my other skills-training experience, the scientific literature."). Dr. Dietz proposes to opine that Dr. Rocchio erred in assuming that her
+
+patients were telling the truth without evaluating, for example, "the changes in the core details of the allegations" of her patients, which is something "professionals" in the field do. Ex. I, p 10.
+
+If, however, Dr. Rocchio testifies that she does not merely assume alleged victims are telling the truth (as when, for example, Dr. Rocchio is acting in a forensic rather than clinical capacity, see Ex. 2, p 39-40), and that her expert opinions are based on a rigorous inquiry into the veracity the claims, Dr. Dietz's opinions are still reliable and admissible. He can testify, for example, that because the literature does not support the hypothesis that emotional distress (e.g., crying) is predictive of truthfulness, Ex. 1, p 11, Dr. Rocchio is wrong to base her opinions about her patients on such conduct.
+
+For another thing, Dr. Dietz does not propose to tell the jury who is telling the truth and who is not telling the truth. Thus, to use this Court's words,
+
+Dr. [Dietz's] testimony is appropriate because []he does not testify as to any specific witness's credibility. See, e.g., =, No. 20-CR-608 (DLC), 2021 WL 1947503, at \*7;M, 860 F.3d at 1140 (8th Cir. 2017) (explaining that an expert may testify "regarding the general characteristics that sexually abused children exhibit" but may not usurp the jury's role of assessing the credibility of any specific victim); United States v. Telles, 6 F.4th 1086, 1097-98 (9th Cir. 2021) (same).
+
+(Dkt. 435, p 5).
+
+The government is wrong to rely on United States v. Lttmpkin (distinguishable on other grounds in any event), in which the Court affirmed the district court's decision to exclude "testimony on witness confidence in identifications." 192 F.3d 280, 289 (2d Cir. 1999). Mot. at 22. Not only did Lumpkin concern eyewitness identification (a concept far afield from the testimony at issue here), but the expert witness there proposed to evaluate the credibility of witnesses who made the identification of the defendant. Dr. Dietz does not propose to testify to the credibility of accusers in this case.
+
+Finally, the government points to Dr. Dietz's "acknowledgement" that credibility should be judged on a "case-by-case basis." Mot at 23. That is exactly right. And it is exactly what Dr. Rocchio does not do in her clinical practice, which is one reason why Dr. Dietz's testimony is admissible.
+
+#### F. Post-Traumatic Stress Disorder.
+
+Dr. Dietz's opinions on PTSD are relevant, reliable, and admissible.
+
+The government's first argument is that it doesn't understand Dr. Dietz's proposed testimony, particularly Dr. Dietz's statement that victims with PTSD symptoms are unlikely "to unnecessarily recreate a sexual assault event." Mot. at 23. To be clear, the point Dr. Dietz was making in this statement and this paragraph of his disclosure is that victims with PTSD will likely avoid reminders of the event that caused the trauma in the first place—for example, they will avoid continued communication with the alleged perpetrator and they are unlikely to wear clothing provided by the alleged perpetrator. Dr. Dietz is not saying, as the government claims. that victims should bear "responsibility for experiencing repeated assaults."
+
+According to the government, the
+
+critical distinction in this case involves the difference between victims of sexual assaults who are involved an ongoing relationship of attachment and coercion with their abusers—including the power imbalance arising from the age differential between them and the abusers—and those who are not. To the extent Dr. Dietz's testimony primarily addresses the latter category, such an opinion is irrelevant and should be precluded for lack of fit with the facts of the case.. .. To the extent Dr. Dietz intends instead to opine on the former category, that opinion is not reliable.
+
+Mot. at 23-24 (citations omitted). This argument fails as well.
+
+On the one hand, the government says Dr. Dietz's opinion does not "fit the facts" of the case because this case is about alleged "victims of sexual assaults who are involved an ongoing relationship of attachment and coercion with their abusers." But this argument begs the
+
+question—are the accusers in this case telling the truth? The government obviously thinks they are. And that's fine. But it will be up to the jury to decide.
+
+On the other hand, if the alleged "victims of sexual assaults ... [were not] involved an ongoing relationship of attachment and coercion with their abusers"—that is, if the victims are not telling the truth—then according to the government Dr. Dietz's opinions are unreliable. In either scenario, says the government, Dr. Dietz can't testify. As explained above, and as the government concedes when it admits that Dr. Dietz can testify about his disagreement with Dr. Rocchio's definition of "grooming," there is ample room for debate about what constitutes grooming behavior and how it manifests.
+
+Accordingly, this Court should reject this "heads the government wins, tails Ms. Maxwell loses" argument.
+
+# II. Dr. Loftus's Testimony is Admissible.
+
+The government goes to great lengths to present cases where memory testimony was precluded. Excepting one civil negligence claim based on exposure to sexual abuse, the cases cited by the government almost exclusively focus on reliability of eyewitness testimony or failed memory regarding specific time or documents. The simplicity of the issues in the cited cases were deemed by the court not to require expert testimony. None of these cases involved the government proffering its own expert to testify about why an accuser or witness might not remember things or remember them inconsistently. Moreover, the cases recognize that, in circumstances like those present in this case, even absent a government "trauma/memory" witness, defense expert testimony is appropriate. See, e.g., United States v. Heine, No. 3:15-CR-00238-SI-2, 2017 WL 5260784, at \*2 (D. Or. Nov. 13, 2017) (expert testimony regarding memory would be allowed if the case involved issues of suggestive questioning, drug use, hallucinations, or repressed or recovered memories).
+
+The issues in this case, by contrast, are far from simple: accusers making allegations decades after the alleged events after reading, hearing, and speaking about the events with others, barraged by media coverage, and motivated by monetary gain. Most of the accusers have spoken publicly and all have received large settlements from the Epstein Victim Compensation Fund. Their "memories" have changed dramatically over time and conveniently began to include Ms. Maxwell after retaining many of the same personal injury lawyers. None of the cases cited by the government comes close to the issues presented here.
+
+Dr. Elizabeth F. Loftus, Ph.D., is a distinguished professor and preeminent expert on memory science, with extensive credentials and academic and research experience spanning decades. She has published more than 20 books and over 600 scientific articles and chapters, the majority of which focus on the subject of memory.
+
+She has been qualified as an expert and testified approximately 300 times in civil and criminal court cases and approximately 100 times during depositions. Like Dr. Rocchio, she would be testifying as a "blind" expert. Dr. Loftus will not testify about the credibility or lack thereof of any witness in this case nor will she testify about whether any particular memory of any witness is true or false or credible or mistaken. She will testify about how human memory operates, the nature of the process of remembering as a reconstructive process, and the factors that can cause memory distortion over time.
+
+Admission of expert testimony on eyewitness identification and memory has significantly evolved, catalyzed by reversals due to DNA exoneration.' In 2013, the National Academy of
+
+<sup>5</sup> See, e.g., United States v. Smithers, 212 F.3d 306, 311-12 (6th Cir. 2000) (noting the view that, "since the 1980's ... expert testimony may be offered," "on the subject of the psychological factors which influence the memory process) (citing United States v. Moore, 786 F.2d 1308, 1313 (5th Cir. 1986) (finding that "[i]n a case in which the sole testimony is casual
+
+Sciences was asked to conduct a thorough study of scientific research relating to eyewitness testimony and memory. In response, the National Research Council formed a committee, cochaired by the Honorable Jed Rakoff and Albright, a prominent cognitive scientist at the Salk Institute for Biological Studies. In 2014, the committee published its report: Identifying the Culprit: Assessing Eyewitness Identification (Natl. Res. Counc. 2014): "Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard—and any of these limitations can produce mistaken identifications with serious consequences" Id. The committee recommended that judges admit expert testimony as a way of educating juries on the science of memory. An alternative recommendation, having the court deliver a carefully crafted jury instructions that could accomplish this same educational goal, requires the daunting task of devising the right instructions. See Rakoff J & Loftus EF, The intractability of inaccurate eyewitness identification (2018).
+
+eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly may be encouraged ... "); United States v. Downing, 753 F.2d 1224, 1232 (3d Cir. 1985) (reasoning that "expert testimony on eyewitness perception and memory [should] be admitted at least in some circumstances"); United States v. 736 F.2d 1103, 1107 (6th Cir. 1984) ("The day may have arrived, therefore, when Dr. Fulero's testimony can be said to conform to a generally accepted explanatory theory.")). As also noted by the court in Smithers, "[s]tate court decisions also reflect this trend." (citing State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795 (1986) (overruling per se rule and holding expert testimony admissible to inform jury about factors generally affecting memory process)). Moreover, the court noted that "several courts have held that it is an abuse of discretion to exclude such expert testimony." (citing United States v. Stevens. 935 F.2d 1380, 1400-01 (3d Cir. 1991) (reversing and remanding for new trial); , 736 F.2d at 1107 (holding error harmless in light of other inculpatory evidence); Downing, 753 F.2d at 1232 (holding error harmless in light of other inculpatory evidence); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983) (reversing and remanding for new trial)).
+
+Admission of expert testimony rests with the discretion of the court. Exclusion of expert testimony, especially regarding the reliability of eyewitness testimony, has been deemed error resulting in reversals. See, e.g., supra note 5 & cases cited infra. The admission of expert testimony on the subject of memory, especially in sex abuse cases, has been prominent in state court, where most prosecutions regarding sex-based offenses are brought. In the last decade, for example, Dr. Loftus has given expert testimony regarding memory science in numerous sex abuse cases:
+
+- People v. Weinstein (Ni. i,NY 2020)
+- People v. Neely (S an CA 2019)
+- People v. Dudley (Orange Cty, CA 2018)
+- State v. (Douglas Cty, Neb 2017)
+- State v. Howard (Douglas Cty, Neb 2017)
+- Doe v. Hosey (Spokane Cty, WA (2016)
+- People v. Armstrong (Broomfield Cty, CO 2016)
+- GM v. MUSD (Los Angeles, CA 2015)
+- People v. Martinson (Denver Cty, CO 2014)
+- State v. Carson (Tulsa Cty, OK 2013)
+- People v. Manzanares (Broomfield Cty, CO 2013)
+- People v. Barreto (Monterey Cty, CA 2012)
+- People v. Tortorelli (San Bernardino Cty, CA 2011)
+- People v. Weller (Orange Cty, CA 2011)
+- People v. Borbon (Orange Cty, CA 2011)
+
+Dr. Loftus's testimony is based on decades of social science research that she personally conducted as well as upon the body of scientific research and literature in the field of memory science. In contrast, Dr. Rocchio relies on literature of others, mostly non-identified and some that do not support the science of grooming, and upon anecdotal reporting by patients engaged in talk therapy.
+
+Although Dr. Rocchio is not an expert on memory or neuroscience (as she admitted at her Daubert hearing, Ex. 2, p 121), the government intends to have her testify about the impact of
+
+trauma on memory. The government does not explain how it can be fair to oppose the testimony of an actual memory expert.
+
+According to the government, (Dkt. 397), Dr. Rocchio's testimony about memory is proper under Fed. R. Evid. 702 because:
+
+Sexual abuse also impacts the way memory is encoded. In traumatic circumstances, often only the most salient details are encoded, and over time, specific details may be lost. With traumatic memory in particular, adrenaline and cortisol responses in the context of fear and trauma cause people to narrow their focus to the most salient and relevant details. If someone is abused multiple times or by multiple people, it is very common for memories of similar occurrences to jumble together, although the victim can remember the perpetrator and maybe some of the locations where the abuse occurred.
+
+Taken together, Dr. Rocchio's expert testimony explains why victims of child sexual abuse—and especially repeated sexual abuse—may disclose their abuse in a delayed and incremental fashion, and why their memories may lack some level of detail when the disclosure finally occurs.
+
+The validity of these opinions is debatable. What is not, however, is that these opinions are a small part of what may or may not affect someone's memory over time. The government desperately wants to avoid discussing the other factors that may affect memory such as suggestibility, substance abuse (both short and long term), secondary gain, the effects of time, psychological disorders, and confabulation (Dr. Rocchio admitted that these things impact memory during the 702 hearing). E.g., Ex. 2, p 121-22.
+
+These are not topics readily understandable. The government has selected a "trauma" expert who will present only a small, self-serving part of the science related to memory. Experts such as Dr. Loftus spend a lifetime researching and writing about these concepts which have been regularly misunderstood by fact finders. One need only to consider the extraordinary number of innocent people convicted on what was thought to be reliable testimony based on faulty memories of witnesses whose convictions were reversed after DNA evidence proved the "memories" incorrect. Jurors do not understand these scientific concepts and will benefit from
+
+considering the whole picture, not the part that the government believes will serve to help convict Ms. Maxwell. The helpfulness of this type of testimony is well recognized. See, e.g., United States v. M, 156 F.3d 1046, 1052-53 (10th Cir. 1998) (rejecting, in criminal case involving the reliability of memory and its impact on the reliability of eyewitness identifications, per se rule excluding such expert testimony); Commonwealth v. 92 A.24 766, 782-83 (Pa. 2014) (collecting cases and noting that 44 states now permit trial courts, in their discretion, to admit expert testimony on factors that affect memory and the reliability of eyewitness testimony, and that "all federal circuits that have considered the issue, with the possible exception of the 11th Circuit, have embraced this approach"). See also v. People, 814 P.2d I (Cob. 1991) (reversing trial court decision that used improper test to exclude expert testimony "on how certain factors, such as ... post-event information, can affect memory and perception"); United States v. Rodriguez-Felix, 450 F.3d 1117, 1124 (10th Cir. 2006) (stating that, if warranted in a particular case, expert testimony may be admissible on "[such] psychological phenomena as the feedback factor" in which "witnesses who discuss a case with each other may unconsciously reinforce mistaken identifications"); United States v. Mathis, 264 F.3d 321, 336-38 (3d. Cir. 2001) (holding that district court abused discretion in excluding expert testimony on factors affecting memory, such as witnesses' exposure to "post-event information" that may have distorted witnesses' recollection of prior events); United States v. Smithers, 212 F.3d 306, 312 n.1 (6th Cir. 2000) (describing "assimilation factor, which concerns a witness's incorporation of information gained subsequent to an event into his or her memory of that event"); United States v. 621 F. Supp.2d 1207, 1216-17 (M.D. Ala. 2009) (ruling that expert testimony was admissible to show how "post event information" can influence memory, noting that "[r]esearch regarding post-event information shows that access to facts after an
+
+occurrence can, under some circumstances, change a witness's memory and even cause nonexistent details to become incorporated into a previously acquired memory") (citing Fionna Gabbert, et. al, Memory Conformity: Can Eyewitnesses Influence Each Other's Memories for an Event?, 17 Applied Cogn. Psycho!. 533 (2003)), and United States v. Jordan, 924 F. Supp. 443, 449 (W.D.N.Y. 1996) (where government's case was largely dependent on witness's memory testimony about the formation, storage, retention and retrieval of memories along with factors that influence the accuracy of memories expert testimony would be helpful to the jury).
+
+The government fails to provide compelling reasons to preclude the testimony of Dr. Loftus. The government's bold statement that there is no evidence that "occurrences, suggestion, influences or the like" happened to any witness is this case is pure bolstering that is belied by the 3500 material. Dr. Loftus's extensive experience, expertise, and proposed testimony is the right "fit" for this case. The Court should permit her expert testimony.
+
+### CONCLUSION
+
+The government does not call into question Dr. Dietz's and Dr. Loftus's qualifications, nor does it meaningfully question the reliability of their opinions. Rather, the government claims their opinions invade the province of the jury or do not "fit" the case. A hearing is not necessary or appropriate to resolve the government's arguments. And as explained above, these arguments fail on the merits.
+
+This Court should deny the government's motion.
+
+Dated: November 12, 2021
+
+Respectfully submitted,
+
+s/ Jeffrey S. Pagliuca
+
+Jeffrey S. Pagliuca
+
+Laura A. Mennin er
+
+HADDON, & P.C.
+
+150 East 10th Avenue
+
+Denver, CO 80203
+
+Phone: 303-831-7364
+
+Christian R. Everdell
+
+& GRESSER LLP
+
+800 Third Avenue
+
+New York, NY 10022
+
+Phone: 212-957-7600
+
+Bobbi C. Sternheim
+
+Law Offices of Bobbi C. Sternheim
+
+225 Broadway, Suite 715
+
+New York, NY 10007
+
+Phone: 212-243-1100
+
+Attorneys for Ghislaine Maxwell
+
+# Certificate of Service
+
+I hereby certify that on November 12, 2021, I electronically filed the foregoing Ghislaine Maxwell's Response to the Government's Motion in Limine to Preclude Expert Testimony of Dr. Park Dietz and Dr. Elizabeth Loftus with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following:
+
+Alison Moe Maurene Comey Andrew Rohrbach Lara Pomerantz U.S. Attorney's Office, SDNY One Saint Andrew's Plaza New York, NY 10007 Alison.moe@usdoj.gov Maurene.comey@usdoj.gov Andrew.Rohrbach@usdoj.gov Lara.Pomerantz@usdoj.gov
+
+s/ Nicole

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marker2/court-us-v-maxwell-cr/EFTA02835866/EFTA02835866.md

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+UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+x UNITED STATES OF AMERICA GHISLAINE MAXWELL, Defendant. x
+
+[PROPOSED] PROTECTIVE ORDER
+
+20 Cr. 330 (AJN)
+
+ALISON J. NATHAN, United States District Judge:
+
+WHEREAS the Court has ordered production of materials from the Epstein Victims' Compensation Fund to the Court pursuant to Fed. R. Crim. P. 17(c) (the "Rule 17 Materials") (see Dkt. No. 496);
+
+WHEREAS those materials are likely to contain information that would (i) affect the privacy and confidentiality of individuals, (ii) would risk prejudicial pretrial publicity if publicly disseminated, and (iii) are not authorized to be disclosed to the public or disclosed beyond that which is necessary for the trial in this action;
+
+WHEREAS the Court has directed the parties to negotiate and submit a proposed protective order;
+
+IT HEREBY IS ORDERED:
+
+1. Any and all Rule 17 Materials disclosed to the Government, the defendant ("Defendant"), and/or to the defendant's criminal defense attorneys ("Defense Counsel," and collectively with the Government, "the Parties") shall be treated as "Confidential Information" within the meaning of the Protective Order (Dkt. No. 36 1 7) and shall be subject to the provisions thereof.
+
+2. At the discretion of the Court, the Court may designate certain materials as "Highly Confidential" within the meaning of the Protective Order (Dkt. No. 36 1 10) and subject to the provisions thereof.
+
+SO ORDERED:
+
+Dated: New York, New York November , 2021
+
+> HONORABLE ALISON J. NATHAN United States District Judge

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marker2/court-us-v-maxwell-cr/EFTA02835868/EFTA02835868.md

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+![](_page_0_Picture_1.jpeg)
+
+United States Attorney Southern District of New York
+
+The Silvio Mono Building One Saint Andmr's Plaza New York. New York 10007
+
+November 24, 2021
+
+## BY ECF
+
+The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007
+
+Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (MN)
+
+Dear Judge Nathan:
+
+Pursuant to the Court's Order at Dkt. No. 496, the parties jointly submit the attached proposed protective order.
+
+Respectfully submitted,
+
+DAMIAN United States Attorney
+
+By: s/ Maurene Comey Alison Moe Lam Pomerantz Andrew Rohrbach Assistant United States Attorneys Southern District of New York
+
+Cc: All Counsel (By ECF)

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marker2/court-us-v-maxwell-cr/EFTA02835869/EFTA02835869.md

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+UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+x UNITED STATES OF AMERICA GHISLAINE MAXWELL, Defendant. x
+
+[PROPOSED] PROTECTIVE ORDER
+
+20 Cr. 330 (AJN)
+
+ALISON J. NATHAN, United States District Judge:
+
+WHEREAS the Court has ordered production of materials from the Epstein Victims' Compensation Fund to the Court pursuant to Fed. R. Crim. P. 17(c) (the "Rule 17 Materials") (see Dkt. No. 496);
+
+WHEREAS those materials are likely to contain information that would (i) affect the privacy and confidentiality of individuals, (ii) would risk prejudicial pretrial publicity if publicly disseminated, and (iii) are not authorized to be disclosed to the public or disclosed beyond that which is necessary for the trial in this action;
+
+WHEREAS the Court has directed the parties to negotiate and submit a proposed protective order;
+
+IT HEREBY IS ORDERED:
+
+1. Any and all Rule 17 Materials disclosed to the Government, the defendant ("Defendant"), and/or to the defendant's criminal defense attorneys ("Defense Counsel," and collectively with the Government, "the Parties") shall be treated as "Confidential Information" within the meaning of the Protective Order (Dkt. No. 36 91 7) and shall be subject to the provisions thereof.
+
+2. At the discretion of the Court, the Court may designate certain materials as "Highly Confidential" within the meaning of the Protective Order (Dkt. No. 36 11 11) and subject to the provisions thereof.
+
+SO ORDERED:
+
+Dated: New York, New York November , 2021
+
+> HONORABLE ALISON J. NATHAN United States District Judge

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marker2/court-us-v-maxwell-cr/EFTA02835871/EFTA02835871.md

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+![](_page_0_Picture_1.jpeg)
+
+United States Attorney Southern District of New York
+
+The SilvioJ. Aloft° Building One Saint Andrew's Plaza New York. New York 10007
+
+November 24, 2021
+
+## BY ECF
+
+The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007
+
+Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (MN)
+
+Dear Judge Nathan:
+
+Attached please find a corrected proposed protective order, in place of Dkt. No. 500.
+
+Respectfully submitted,
+
+DAMIAN United States Attorney
+
+By: s/
+
+Maurene Comey Alison Moe Lam Pomerantz Andrew Rohrbach Assistant United States Attorneys Southern District of New York
+
+Cc: All Counsel (By ECF)

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marker2/court-us-v-maxwell-cr/EFTA02835872/EFTA02835872.md

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+![](_page_0_Picture_6.jpeg)
+
+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+United States of America,
+
+—v—
+
+Ghislaine Maxwell,
+
+Defendant.
+
+20-CR-330 (AJN)
+
+ORDER
+
+ALISON J. NATHAN, District Judge:
+
+As noted in this Court's prior order, trial in this case will commence on November 29, 2021. Dkt. No. 330. The trial will take place in Courtroom 318 of the United States District Court for the Southern District of New York, Thurgood Marshall U.S. Courthouse at 40 Foley Square, New York, New York. In accordance with its prior Order, the Court will ensure access for alleged victims and members of the Defendant's family. Dkt. No. 344.
+
+The Federal Rules of Criminal Procedure prohibit the broadcasting of federal judicial criminal proceedings from the Courtroom. See Fed. R. Crim. P. 53; see also https://nysd.us courts.gov/covid-19-coronavirus. However, as indicated below, consistent with the District's COVID-I9 protocols, the Court will facilitate substantial public and press access at the Courthouse.
+
+First, consistent with the District's COVID- 19 distancing requirements, a number of pool reporters and members of the public will be permitted in the courtroom proper as managed by the District Executive's Office.
+
+Second, press will also be able to access the trial in dedicated overflow courtrooms for the press. Questions about press access should be directed to the District Executive's Office. Please email Media\_Inquiries@nysd.uscourts.gov, or call (212) 805-0513.
+
+Third, members of public will also be able to access the trial in overflow courtrooms in the Thurgood Marshall U.S. Courthouse. These overflow rooms will have live video and audio feeds of the proceeding. There will be substantial seating capacity available in the overflow rooms for members of the public. If capacity is reached, no additional persons will be admitted. Questions about public access should be directed to the District Executive's Office—(212) 805-0500.
+
+Per the S.D.N.Y. Response to COVID-19, anyone who appears at any S.D.N.Y. courthouse must complete a questionnaire on the date of the proceeding prior to entering the courthouse. All visitors must also have their temperature taken when they arrive at the courthouse. Only persons who meet the entry requirements established by the questionnaire and whose temperatures are below 100.4 degrees will be allowed to enter the courthouse. All visitors must wear a mask that covers the person's nose and mouth. Bandannas, gaiters, and masks with valves are not permitted. If a person does not have an approved mask, a screener will provide one. Anyone who fails to comply with the COVID-19 protocols that have been adopted by the Court will be required to leave the courthouse. There are no exceptions. For more information, please see <https://www.nysd.uscourts.gov/covid-19-coronavirus>.
+
+SO ORDERED.
+
+Dated: November 24, 2021  
+New York, New York
+
+![]()
+
+---
+
+ALISON J. NATHAN  
+United States District Judge

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marker2/court-us-v-maxwell-cr/EFTA02835874/EFTA02835874.md

@@ -0,0 +1,29 @@
+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+United States of America,
+
+—v—
+
+Ghislaine Maxwell,
+
+Defendant.
+
+![](_page_0_Picture_6.jpeg)
+
+20-CR-330 (AJN)
+
+ORDER
+
+ALISON J. NATHAN, District Judge:
+
+The Court is in receipt of the initial production of the Epstein Victims' Compensation Program pursuant to the Rule 17(c) subpoena. See Dkt. No. 496. The Court is also in receipt of the parties' proposed protective order. Dkt. No. 501. The Court will enter the proposed protective order.
+
+Consistent with its prior Order, Dkt. No. 496, the Court determines that the parties may review the materials under the provisions of the protective order. Dkt. No. 501. In doing so, the Court has made no determination as to the admissibility of any of the material.
+
+Accordingly, the Administrator of the Epstein Victims' Compensation Program is ORDERED to produce the materials contained in the initial production to the parties as soon as possible, but no later than 7:00 p.m. on November 24, 2021.
+
+SO ORDERED.
+
+Dated: November 24, 2021 New York, New York ALP
+
+ALISON J. NATHAN United States District Judge

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marker2/court-us-v-maxwell-cr/EFTA02835875/EFTA02835875.md

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+November 23, 2021
+
+BY E-MAIL to NathanNYSDChambers@nysd.uscourts.gov The Honorable Alison J. Nathan United States District Judge Southern District of New York 40 Foley Square New York, New York 10007
+
+VILLAZOR
+
+USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC DATE FILED: 11/24/21
+
+Re: United States it Maxwell, No. 20 Cr. 330
+
+Dear Judge Nathan:
+
+Vittozor LLP 250 West 55th Street. 30th Floor New York. NY 10019 www.snethe Ilozor.corn
+
+> J.= 212 582 4400
+
+patrick smith asmtthollozor.con
+
+The parties are ORDERED to docket any proposed redactions to this memo
+
+endorsement and Administrator
+
+letter by close of business
+
+on November 24, 2021. The Court will not extend the deadline for the parties' proposed protective order, which must be submitted by 12:00
+
+p.m. today. SO ORDERED.
+
+We represent Jordana H. the independent administrator of the Epstein Victims' Compensation Program. We write regarding the Court's order, dated November 22, 2021, denying motion to quash Maxwell's subpoena to her and ordering production of the subpoenaed documents by November 24, 2021 at noon.
+
+intends to comply with the Court's order and produce responsive documents to the Court. However, given the volume of materials and the steps necessary to ensure that documents produced fall within the scope of the subpoena, it is not possible to produce all materials by noon tomorrow. We understand that the volume of potentially responsive materials is approximately 6,000 to 7,000 pages, and we note that the original return date for the subpoena was November 29, 2021 at 8:30am.
+
+We intend to roduce b noon tomorrow We Intel' r to pro r uce remaining responsive ocuments as soon as posse e ere er and respectfully request until November 29, 2021 at 8:30am (the original subpoena return date) to complete production. SO ORDERED.
+
+We are available should the Court have any questions.
+
+Respectfully submitted,
+
+/s/\_./
+
+11/24/21
+
+E J. Villazor LLP
+
+cc: AUSA Alison Moe, AUSA Mattrene Comey, AUSA Andrew Rohrbach, AUSA Lam Pomerantz, Christian R. Everdell, Esq., Jeffrey S. Pagliuca, Esq., Laura A. Memainger, Esq., Mark Stewart =, Esq., Bobbi C. Steruheim, Esq. (by e-mail)

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marker2/court-us-v-maxwell-cr/EFTA02835876/EFTA02835876.md

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+| USDC SDNY            |
+|----------------------|
+| DOCUMENT             |
+| ELECTRONICALLY FILED |
+| DOC #:               |
+| DATE FILED: 11/24/21 |
+
+UNITED STATES DISTRICT COURT  
+SOUTHERN DISTRICT OF NEW YORK
+
+- - - - - x  
+ :  
+ UNITED STATES OF AMERICA  
+ - v. -  
+ GHISLAINE MAXWELL,  
+ Defendant.  
+ - - - - - x
+
+**[PROPOSED]**  
+**PROTECTIVE ORDER**  
+ 20 Cr. 330 (AJN)
+
+ALISON J. NATHAN, United States District Judge:
+
+WHEREAS the Court has ordered production of materials from the Epstein Victims' Compensation Fund to the Court pursuant to Fed. R. Crim. P. 17(c) (the "Rule 17 Materials") (see Dkt. No. 496);
+
+WHEREAS those materials are likely to contain information that would (i) affect the privacy and confidentiality of individuals, (ii) would risk prejudicial pretrial publicity if publicly disseminated, and (iii) are not authorized to be disclosed to the public or disclosed beyond that which is necessary for the trial in this action;
+
+WHEREAS the Court has directed the parties to negotiate and submit a proposed protective order;
+
+IT HEREBY IS ORDERED:
+
+1. 1. Any and all Rule 17 Materials disclosed to the Government, the defendant ("Defendant"), and/or to the defendant's criminal defense attorneys ("Defense Counsel," and
+
+collectively with the Government, "the Parties") shall be treated as "Confidential Information" within the meaning of the Protective Order (Dkt. No. 36 ¶ 7) and shall be subject to the provisions thereof.
+
+2. At the discretion of the Court, the Court may designate certain materials as "Highly Confidential" within the meaning of the Protective Order (Dkt. No. 36 ¶ 11) and subject to the provisions thereof.
+
+SO ORDERED:
+
+Dated: New York, New York  
+November 24, 2021
+
+![]()
+
+---
+
+HONORABLE ALISON J. NATHAN  
+United States District Judge

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marker2/court-us-v-maxwell-cr/EFTA02835878/EFTA02835878.md

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+![](_page_0_Picture_1.jpeg)
+
+United States Attorney Southern District of New York
+
+The Silvio! Mollo Building One Saint Andrew's Plaza New York. New York 10007
+
+November 24, 2021
+
+## BY ECF
+
+The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007
+
+Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (MN)
+
+Dear Judge Nathan:
+
+Pursuant to the Court's Order at Dkt. No. 495, the Government submits proposed redactions to the filings associated with the Government's motion to preclude six defense experts. In addition to the proposed redactions, the Government respectfully seeks to redact Government Exhibit A, the defense expert notice, which the Government has filed on the docket with the same redactions (see Dkt. No. 424-1), and moves to file Government Exhibit B under seal. The Government's proposed redactions and sealing are consistent with the three-part test articulated by the Second Circuit in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). Although the parties' briefing and the Court's Opinion & Order are judicial documents subject to the common law presumption of access, the limited proposed redactions are narrowly tailored to protect the privacy interests of the Minor Victims, including a Minor Victim who is a subject of the Court's pseudonym order.
+
+The defense has informed the Government that it is not seeking any additional redactions.
+
+Respectfully submitted,
+
+DAMIAN United States Attorney
+
+By: s/ Maurene Convey Alison Moe Lara Pomerantz Andrew Rohrbach Assistant United States Attorneys Southern District of New York
+
+Cc: Defense Counsel (By ECF)

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marker2/court-us-v-maxwell-cr/EFTA02835880/EFTA02835880.md

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+# Exhibit A
+
+![](_page_1_Picture_1.jpeg)
+
+November 1, 2021
+
+VIA EMAIL
+
+Maurene Comey Alison Moe Lara Pomerantz Andrew Rohrbach United States Attorney's Office Southern District of New York 1 St. Andrew's Plaza New York, NY 10007
+
+Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN)
+
+Dear Counsel:
+
+150 East 10th Avenue Denver, Coiorado 80203 PH 303.831.7364 FX 303.832.2628 vomv.hmflaw.com JPaglucaehmflaw.com
+
+Defendant Ghislaine Maxwell through counsel, submit the following summary pursuant to Fed. R. Crim. P. 16(bX1XC).
+
+# I. EXPERT DISCLOSURE BY THE DEFENSE
+
+A. Dr. Elizabeth Loftus
+
+Dr. Loftus is the Distinguished Professor of Psychological Science and Law at the University of California, Irvine School of Law. Dr. Loftus is one of the nation's leading experts on the science of memory. In addition to her experience as an academic and clinical researcher, she has been an expert witness or consultant in hundreds of cases. Her extensive experience and credentials are recited in her curriculum vitae. Exhibit A.
+
+It is expected that Dr. Loftus, a psychologist who specializes in the study of memory, will focus on the memory aspects of this case. Based on her education, training, experience, and research, her testimony will concern the workings of human memory, the effects of suggestion on memory, the mechanism of creation of false memories, the characteristics of false memories, how memory fades and weakens over time, and how memory becomes more vulnerable to contamination. She will describe scientific research showing that false memories can be
+
+Comey, Moe, Pomerantz and Rohrbach November 1, 2021 Page 2
+
+described with confidence, detail, and emotion, just like true memories. This can occur when people come to believe in these experiences and are not deliberately lying. Dr. Loftus would identify some of the suggestive activities that occurred in the current case.
+
+Suggestive activities can explain how it is that a person might go from having no memory of sexual abuse, and even denying sexual abuse, to later having "memories" for numerous abusive acts, if the memories are false. She will explain the mechanism by which false and/or distorted memories can be created as a result of post-event information and occurrences, suggestion, influence or the like. She will also testify about the characteristics of false and/or distorted memories. In particular "memories" can be described with confidence, detail and emotion, even when they are false. She will point out some of the suggestive activities that occurred in this case. She will explain how media coverage and other publications (including but not limited to newspaper and magazine articles, news reports, television shows, documentaries, books, podcasts, websites, etc.) and discussions/ conversations with others, can be sources of suggestion. She will explain how, in a case like this one, suggestion can lead individuals to the construction of distorted memories.
+
+# B. Park Dietz, M.D., M.P.H., PH.D.
+
+Dr. Park Dietz is a psychiatrist specializing in forensic psychiatry with over 40 years of experience. He has been previously qualified as an expert in psychiatry and forensic psychiatry.
+
+Dr. Dietz received a bachelor's degree in psychology and biology from the Cornell University College of Arts and Sciences (01) .rt M.D. degree from the Johns University School of Medicine (1975), a degree in Public Health from the Johns School of Hygiene and Public Health (1975), and a Ph.D. in sociologfrySe Johns University (1984). He completed psychiatric residency at the Johns Hospital (1975-77) and the Hospital of the University of Pennsylvania (1977-78), where he was Chief Fellow in Forensic Psychiatry. He has been board certified in psychiatry by the American Board of Psychiatry and Neurology since 1979.
+
+He is a Clinical Professor of Psychiatry and Biobehavioral Sciences at the UCLA School of Medicine. From 1986 to 1989, he was a Professor of Law at the University of Virginia School of Law and a Professor of Behavioral Medicine and Psychiatry at the University of Virginia School of Medicine. From 1982 to 1986, he was an Associate Professor of Law and of Behavioral Medicine and Psychiatry at the University of Virginia Schools of Law and Medicine. From 1978 to 1982, he was an Assistant Professor of Psychiatry at Harvard Medical School. In those positions he taught and lectured on forensic psychiatry for diverse audiences, including law students, practicing attorneys, law enforcement officers, psychiatry residents, forensic psychiatry fellows, and practicing forensic psychiatrists and psychologists.
+
+He is a Past President of the American Academy of Psychiatry and the Law, a Distinguished Life Fellow of the American Psychiatric Association, and a Fellow of the American Academy of Forensic Sciences. He has served on the editorial boards of the Bulletin of the American Academy of Psychiatry and the Law, the Journal of Forensic Sciences, Behavioral Sciences and the Law, the Journal of Threat Assessment and Management, and other
+
+November 1, 2021
+
+Page 3
+
+professional publications. He has authored more than 100 articles and book chapters, primarily on forensic psychiatry.
+
+He has conducted more than 1,000 evaluations of persons charged with crime and, in his role as President of Park Dietz & Associates, Inc., has evaluated or supervised over 1,000 evaluations of allegations of sexual victimization. He has testified as an expert witness in forensic psychiatry on hundreds of occasions, including testimony in criminal matters in federal courts throughout the U.S. and the trial courts of nearly every state.
+
+Dr. Dietz will be qualified as an expert in the areas of psychiatry and behavioral science. Dr. Dietz's curriculum vitae is attached as Exhibit B. Attached as Exhibit C is a list of material reviewed by Dr. Dietz.
+
+His testimony may include, but will not be limited to. the following:
+
+## a. Opinions about Dr. Rocchio's Disclosed Opinions
+
+The first use of the word "grooming" to refer to strategies that sometimes enable nonforceful, nonthreatening, and nonviolent sexual victimization of minors was the proposition that "the perpetrator involves children in sexual abuse through a grooming process in which a combination of kindness, attention, material enticement, special privilege, and coercion are expertly applied" (Conte, 1984, p. 558). Since then, this usage has been widely adopted by social scientists, clinicians, journalists, and others. But this usage has some unintended consequences that threaten the integrity of the adjudicative process, including these:
+
+- (1) Because use of the term "grooming" commonly assumes that the grooming party is intentionally using these strategies to gain sexual access to children, to abuse them, and to prevent them from disclosing the abuse, the word "grooming" has acquired meaning beyond an objective description of behaviors; it imputes motive and intent without adequate evidence of either.
+- (2) In the litigation context, "when 'grooming' is applied to such common and desirable behaviors as being kind or attentive or helpful or caring, there is considerable risk of misleading the fact finder into believing that these latter behaviors are well established predictors of child sexual abuse," when they are not. Park Dietz, Grooming and Seduction, 33 J. Interpersonal Violence, 28, 31 (2018). Dr. Rocchio characterizes "grooming" as "a strategic pattern of behavior(] ... that can take a variety of forms and function to render the victims vulnerable to abuse, to obscure the nature of the abuse, and to build trust and attachment with their abuser." This vague opinion about "grooming" carries the risk of imputing motive and intent to the Defendant, when the determination of motive and intent is a task for the fact finder charged with determining the credibility of witnesses, the weight of the evidence, and the ultimate issues. Moreover, this opinion carries the risk of implying that innocuous and even desirable behaviors are associated with nefarious or criminal conduct.
+
+Comey, Moe, Pomerantz and Rohrhach November I, 2021 Page 4
+
+Moreover, grooming has no consistent definition, and concerns have been raised that "there is no valid method to assess whether grooming has occurred or is occurring." Natalie Bennett & William O'Donohue, The Construct of Grooming in Child Sexual Abuse, 23 J. Child Sexual Abuse 957, 974 (2014).
+
+In any particular population of alleged victims, patients, or plaintiffs—including those whom Dr. Rocchio has treated or evaluated—the determination of whether grooming has occurred is a subjective judgment hinging largely on the credibility of the individuals. Such judgments have no known error rate and cannot be tested, verified, or reproduced.
+
+Although the Government's Expert Notice regarding Dr. Rocchio's proposed testimony is silent as to whether she is expected to impute a theory of "grooming-by-proxy" to the Defendant, it is important to note that there is no generally accepted theory of grooming b third parties or empirical evidence regarding the prevalence, characteristics, or mechanisms of . Maxwell is not accused of soliciting or enticing sexualized massages for herself. Instead, the claim appears to be that Ms. Maxwell recruited and groomed minors to provide sexualized massages for Mr. Epstein, which would amount to grooming-by-proxy.
+
+Dr. Dietz is aware of no authority—no journal articles, no studies, no tests, nothing—to support a theory of grooming-by-proxy. Such a theory has not gained any acceptance (let alone general acceptance) in the relevant community; it has not been peer-reviewed; it has not and cannot be tested; and there is no known or potential rate of error.
+
+Dr. Rocchio's opinion that "[i]ndividuals with particular vulnerabilities are often targeted by perpetrators of sexual abuse" is a commonly accepted bit of clinical lore derived from the frequent observation of highly vulnerable children among those children who allege sexual abuse, but it is not based on empirical data regarding the likelihood of abuse among children with varying degrees of vulnerability. To the extent that less vulnerable children, such as those with intact families, attentive parents, good social support, little psychopathology, less prior trauma, no substance use, and higher resilience are less likely to allege abuse than the more vulnerable, the generalization could be proved weak or false, if only there were such empirical data. And even if there were such data, it would be important to devise a means of verifying that abuse did occur to those who allege it, which is a difficult task at best because of the pains so many abusers take to avoid confession, witnesses, or physical evidence. The clinical, criminal justice, and forensic populations from which the observation of prevalent vulnerabilities is derived—including those clients whom Dr. Rocchio has treated or evaluated—rarely represent groups in which all allegations of abuse have been verified by confession, witnesses, physical evidence, or other means.
+
+Other opinions put forth in the disclosure of Dr. Rocchio's proposed testimony also rest on assertions that are untestable, cannot be reproduced, and have no known error rate.
+
+# b. Opinions About Hindsight Bias
+
+Hindsight bias must be considered when evaluating sex abuse allegations and or "grooming behavior." Many claims of sexual abuse of minors involve behaviors that are, in Comey, Moe, Pomerantz and Rohrbach November I, 2021 Page 5
+
+hindsight, labeled "grooming" or otherwise imputed as knowledge to onlookers. Hindsight bias refers to the tendency to overestimate how predictable or foreseeable an event is after being informed about the outcome of an event. Simply put, knowledge of the outcome of the event, i.e. Epstein pleaded guilty to having sexual contact with post-pubescent minors, makes the importance of pm-conviction behaviors obvious. Retrospective judgments about the predictability or foreseeability of the outcome are systemically inflated or biased compared to judgments made without information about the outcome. Hindsight bias refers to the tendency to overestimate how predictable an event is after learning the outcome of the event (Fischhoff, 1975). For example, after a political election, people believe their pre-election estimates of the outcome were closer to the outcome than they actually were (Blank, Fischer, & Erdfelder, 2003). Hindsight bias has been discussed in over 800 scholarly articles across a variety of different domains including medicine, financial decision making, consumer satisfaction, and within the legal domain (see Roese & Vohs, 2012; Arkes, 2013; Strohmaier et al., 2021) and using a variety of different experimental designs (Pohl & Erdfelder, 2016) and a variety of different stimuli such as written vignettes, visual stimuli (e.g., Bernstein & Harley, 2007), and auditory stimuli (e.g., Bernstein, Wilson, Pernat, & Meilleur, 2012). Even individuals with specialized training and expertise succumb to hindsight bias (Musch & Wagner, 2007). One notable study detected hindsight bias among actual judges making civil liability decisions, in which judges with outcome knowledge perceived the harm to be significantly more foreseeable than judges who did not receive outcome information and were thus more likely to render a finding of negligence (Oeberst & Goeckenjan, 2016). Another notable study detected hindsight bias in a sample of mental health professionals who gauged the dangerousness of a psychiatric patient; again, outcome knowledge affected the reported dangerousness and predictably of harm posed by the patient (Beltrani et al., 2018).
+
+Hindsight bias affects legal judgments. Civil or criminal prosecutions related to events occurring decades ago may be compromised by this bias in many ways, from the investigation either ignoring evidence or attributing significance in hindsight—through the presentation of evidence, to the deliberation of any factfinder. Awareness of the impact of the hindsight bias should temper any claims that so called "grooming" behaviors should have been noticed and either reported or avoided and that failing to do so constitutes knowledge or intent.
+
+## c. Opinions Related to the Halo Effect
+
+The term "Halo effect" was coined by Thomdike (1920) a century ago. The Halo effect is a cognitive bias in impression formation whereby the positive evaluation of one characteristic has a radiating effect on how other, non-related characteristics of the individual are evaluated. For example, one classic study found that physical attractiveness influenced evaluations of the target's personality, life satisfaction, and expected future personal and occupational success despite the fact that no information about any of these attributes was provided (Dion et al., 1972). Physical attractiveness has also been found to influence culpability judgments, with attractive individuals being held less-responsible than unattractive individuals (Dion, 1972; Efran, 1974). Halo effects have been found to be cued by factors other than attractiveness, such as the described status of the target (Wilson, 1968), the name of the target (Harari & McDavid, 1973), and even one's mood when evaluating the target (Forgas, 2011). Studies have documented
+
+November 1, 2021
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+
+halo effects when making diagnoses of psychopathology, such that symptoms of one mental disorder influence the interpretation of other symptoms indicative of other mental disorders and vice versa (see e.g., DeVries, Hartung, & Golden, 2017).
+
+Halo effects are a means to achieving cognitive consistency, which roughly refers to a state in which attitudes, perceptions, beliefs, predictions, and thouskare aligned. Cognitive consistency serves many important goals. As noted by Read and (2012), cognitive consistency is "essential for reasons of parsimony and economy of effort, as well as to allow for the predictabili and hence adaptability to, subsequent encounters" (p. 67). Indeed, the noted psychologist MI Festinger "was convinced that the psychological need for cognitive consistency is as basic as hunger and thirst" (Gawronski, 2012, p. 652). But because the world is often not so neat, orderly, or unequivocal, humans engage in complicated reasoning processes to impose consistency. These processes involve bi-directional reasoning in which "decisions follow from evidence, and evaluations of the evidence shift toward coherence with the emerging decision" Snow, & Read, 2004, p. 814; Greenspan & Scurich, 2016). As a result, perceptions and decisions become highly skewed toward one interpretation while alternatives are neglected or dismissed, hence consistency is achieved. This reasoning process occurs unconsciously, i.e., outside conscious awareness, and is not intentional self-deception.
+
+Halo effects can have serious practical consequences. As noted by Forgas and Laham (2016):
+
+Once unjustified initial expectations are formed about a person, they can easily become self-perpetuating with serious implications for how a target is treated. If we expect a person to have positive characteristics, we may selectively look for and find such features from the rich array of information available (a self-fulfilling prophecy), and positive impressions may in turn lead to preferential treatment in a range of domains:
+
+interpersonal relations, the work place, the health and legal systems, and even for decision making and consumer choices. (p. 286)
+
+Like many people who achieve great power and wealth, Jeffery Epstein exploited the Halo effect to surround himself with people who would serve his needs. At the most primitive level, his wealth attracted those seeking for themselves some of what he had. At the most sophisticated level, others with halos of their own—through any combination of power, influence, fame, brilliance, attractiveness, social standing, or other positive characteristics—mingled with Epstein for reasons of their own, and being seen in their company empowered him and made him look above suspicion. In a videotaped interview with Steve Bannon, Epstein differentiated between different kinds of power—such as Bill Clinton's political power, wrestlers' and weight lifters' physical power, and Gerry Edelman's intellectual power—and acknowledged that he gravitated to people of power. [CONFIDENTIAL] SDNY\_GM\_SUPP\_00219000.mov.
+
+The materials reviewed reflect that Jeffrey Epstein was a brilliant man who was flawed by enduring personality traits familiar to psychiatrists as "Cluster B personality traits," found among those with antisocial, narcissistic, borderline, and histrionic personality disorders.
+
+November I, 2021
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+American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th Ed., Arlington, VA: American Psychiatric Association (2013), pp. 659-672. These flaws allowed him to use his brilliance to manipulate people to do his bidding and to compartmentalize people into isolated cells in which none had complete information about his activities. These were not his only flaws, and Dr. Dietz is also prepared to address Jeffrey Epstein's sexual behavior should it prove relevant.
+
+#### d. Opinions Related to the Multiple Pathways to False Sex Assault Allegations
+
+Studies concerning the accurate reporting of alleged sexual assaults undermine the assertions made by Dr. Rocchio to the extent they are based on uncorroborated allegations and are also otherwise relevant here. False allegations of sexual assault do occur, and there are multiple pathways to these false allegations of sexual assault.
+
+Not all allegations of sexual assault are true. Unfortunately, there has been little work on understanding the prevalence of false allegations or pathways to these, particularly in a sample most relevant to a jury—currently adjudicated cases. A peer reviewed journal article has proposed 11 pathways to false allegations of sexual assault: (a) lying, (b) implied consent, (c) false memories, (d) intoxication, (e) antisocial personality disorder, (f) borderline personality disorder, (g) histrionic personality disorder. (h) delirium, (i) psychotic disorders, (j) dissociation, and (k) intellectual disability. Jessica and William O'Donohue, Pathways to False Allegations of Sexual Assault, 12 .1. Forensic Psychology Practice, 97. These pathways originate in the psychological proclivities or state of the individual making these false allegations. The descriptions of these pathways that follow include material drawn nearly verbatim from the article by and O'Donohue (2012), which was published before the latest edition of the Diagnostic and Statistical Manual of Mental Disorders but nonetheless remains accurate in characterizing certain personality disorders.
+
+Lying: Lying involves the alleged victim knowingly making a false claim of sexual assault. Humans do lie, and their lies can be difficult to detect. Often, humans lie because of what they perceive as the favorable consequences for lying; for sexual assault these consequences could be:
+
+- **I. the severe negative consequences that the alleged perpetrator experiences,**
+- **2. secondary gain from victim status,**
+- **3. excusing behaviors or characteristics of the alleged victim (e.g., sexual activity, pregnancy, sexually transmitted diseases)**
+- **4. financial gain.**
+
+**Implied Consent: A fact finder's determination of whether consent was competently given is often problematic, and some allegations are regarded as unfounded or false based on determinations regarding consent before cases reach the stage of adjudication. A false allegation** 
+
+November 1, 2021
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+can arise when it was reasonable to believe consent was given but the alleged victim falsely believes that it was not.
+
+False Memory: The existence and prevalence of repressed memories is a source of controversy, and yet research does exist demonstrating the successful implantation of fabricated memories. In one of the first studies on the implantation of false memories, participants were given short narratives of childhood experiences, purportedly obtained from relatives, and asked to try to remember these experiences. Research by Elizabeth Loftus has revealed how subtle information introduced after an event may alter the memory of that event. Loftus and her students have conducted more than 200 studies with more than 20,000 participants demonstrating how misinformation introduced after an event can induce people into creating false memories.
+
+Intoxication: Intoxication can substantially increase the likelihood of a false allegation of sexual assault. Alcohol and other intoxicants pose a significant problem in sorting out the validity of a sexual assault allegation. The information-processing errors induced by intoxicating substances may cause confusion surrounding events that occurred while a person was intoxicated. A person who does not accurately recall events that occurred while he or she was under the influence or while experiencing the side effects of withdrawal from a substance may attempt to make sense out of the disjointed and seemingly incoherent memories of events that occurred while intoxicated. In an effort to make sense of and organize what memories are intact, a person may confabulate or fill in the memory lapses with events that seem probable or which for some reason they come to believe "must have" taken place.
+
+Antisocial Personality Disorder: The essential feature of antisocial personality disorder is a pervasive pattern of behavior that disregards and violates of the rights of others. It often begins in early childhood or early adolescence and continues into adulthood. If an individual with antisocial personality disorder is likely to lie to achieve power and pleasure, a false allegation of sexual assault might be the means by which he or she attempts to achieve power over the falsely accused. Falsely claiming someone sexually assaulted you can be an aggressive act and a lack of remorse could allow the individual to file an allegation of sexual assault and maintain this allegation with few, if any, conflicts of conscience. Thus, a pathway to a false allegation of sexual assault can occur when an individual with antisocial personality disorder makes a false claim of assault.
+
+Borderline Personality Disorder: Borderline personality disorder (BPD) is a serious mental condition characterized by affective dysregulation, impulsiveness, difficulties in interpersonal relationships, and difficulties with self-image. Of particular note is the rapid switching from idealization to devaluation, impulsivity, and manipulative features of borderline personality disorder. The instability of relationships experienced by an individual with BPD may be rooted in the tendency to quickly switch from idealizing significant others or lovers to devaluing them. This sudden change in conceptualization of a partner is often caused by feeling that the partner is not caring enough or giving enough or by suspicion of abandonment. The rapid shifting between idealizing and demonization may bring about a change in perspective such that a relationship that was viewed idealistically in the past is now seen through the devalued lens of abuse or mistreatment. Past events then may become construed as "abuse" and may lead a person
+
+Comey, Moe, Pomerantz and Rohrbach  
+November 1, 2021  
+Page 9
+
+with BPD to believe he or she is a victim of sexual assault. Previous research has found that two of the three major motivations to file a false allegation of rape were attention-seeking and revenge. The switch from idealization to devaluation of the relationship and/or relationship partner may spur a desire for revenge for any past behaviors that are, in the devaluation phase, newly construed as mistreatment. Also, there is some evidence that individuals with BPD engage in behaviors that are viewed as “manipulative.” Manipulative behaviors are often outside the conscious awareness of the individual and are learned through positive reinforcement, as manipulation frequently results in positive outcomes for the manipulator. Thus, an individual with BPD may use a sexual assault allegation as a way of impacting a third party for some desired outcome.
+
+Histrionic Personality Disorder: Diagnostic criteria for histrionic personality disorder include: 1) feeling uncomfortable in situations in which he or she is not the center of attention; 2) interactions with others are often characterized by inappropriate sexually seductive or provocative behavior; 3) displaying rapidly shifting and shallow expressions; 4) consistently uses physical appearance to draw attention to the self; 5) has a style of speech that is excessively impressionistic and lacking in detail; 6) shows self-dramatization, theatricality, and exaggerated expression of emotion; 7) is suggestible (i.e., easily influenced by others or circumstances), and 8) considers relationships to be more intimate than they actually are. Other relevant behaviors include the tendency to play out stereotyped roles in their relationships with others; an intense desire for novelty and excitement; and the upset and depression that may follow periods in which they received little attention. Filing a false allegation of sexual assault may serve to benefit individuals with histrionic personality disorder in several important ways. The sexualized behavior of individuals with histrionic personality disorder can lead to sexual relationships that may be used to seek attention (e.g., having sex with a person and telling all of their friends about it). Filing a false sexual assault claim may regain lost attention, either from the desired partner or from other individuals, providing a novel and exciting environment that may be stimulating to a person who is histrionic. They may enjoy the large amounts of attention received for filing a sexual assault charge and for the “victim” role that can be played out in other relationships (a dynamic also common in false allegations by those with borderline personality disorder). In times when attention is not being received to the desired level, a false allegation of sexual assault may help to pull individuals with histrionic personality disorder out of their depressed state.
+
+Delirium: Delirium is a disturbance of consciousness that is accompanied by a change in cognition that cannot be better accounted for by a preexisting or evolving dementia. Relevant to this pathway are the perceptual disturbances that may be present, including misinterpretations, illusions, or even hallucinations. Many substances induce delirium, particularly in excessive doses.
+
+Psychotic Disorders: The term psychotic generally refers to conditions that are marked by delusions, hallucinations, or markedly illogical thinking. Such conditions cause gross impairments in functioning. Studies investigating the content of delusions have found delusions that are sexual in nature are not uncommon and occur more often in women than in men. Some cases of sexual delusions have been documented. These delusions may lead a person to claim adamantly that sexual relations or events occurred that may be impossible or highly improbable.
+
+November I, 2021
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+
+Dissociation: Dissociation is `the lack of the normal integration of thoughts, feelings, and experiences into the stream of consciousness and memory. Dissociation involves a disruption or splitting off of memory, personality, identity, consciousness, or general perceptions of the self and surroundings; it can be recurring, gradual, or transient. It is likely associated with memory distortions. Thus, it is possible that in the event of a sexual assault, dissociation may cause a person to fill in the parts of the experience that are not clearly remembered with events that for them feasibly could have occurred. Of course, memory lapses will not necessarily be filled in with a confabulated event, let alone a sexual one. However, individuals who dissociate at a high frequency may seek to make their stories more coherent by adding details to an incomplete memory that would make sense to them when considered in the context of the event. Thus, these confabulations may lead to erroneous claims that have forensic relevance, including who the perpetrator was, what happened, where, and how many times.
+
+Intellectual Disability: Intellectual disability, is characterized by below average IQ and adaptive functioning. Limitations in functioning include deficits in the acquisition of social, occupational, academic, and general self-care skills. Intellectual disability has several etiologies that often are related to biological or pathological processes affecting the central nervous system. Many of the specific vulnerabilities that arise from intellectual disability overlap to some extent with other disorders (e.g., autism spectrum disorders, cerebral palsy, fetal alcohol syndrome) and individuals with other developmental disabilities may also have intellectual disability. Intellectually disabled individuals, compared to individuals without ID, have vulnerabilities related to memory and communication that the legal system may not be equipped to handle adequately. Individuals with moderate-to-profound ID may have significant difficulty communicating about the events that occurred because of language skills deficits or other communication-interfering conditions (e.g., related neurological conditions). Research findings indicate that communications skills are essential in filing a sexual assault charge; alleged victims with mild ID were more likely than individuals with moderate or severe ID not only to file sexual assault charges but to have their allegations confirmed. Difficulties with memory may also complicate the investigation process for individuals with ID.
+
+Changes in the core details of the allegation are often used by professionals as indices in determining the credibility of a victim's claims. Peace and colleagues (2015) conducted a narrative analysis of 147 sets of allegations of sexual assault across short (3 month) and long (6 month) intervals since the alleged event took place. In reviewing the existing literature, Peace and colleagues found that genuine traumatic experiences have a demonstrable resiliency to drastic impairments in recall. However, some inconsistencies especially in less core matters are to be expected due to some less important details fading or varying over time. In examining their sample of 147 allegations, the researchers discovered that truthful allegations contained more detail relative to false allegations at each of the assessment intervals. Specifically, the researchers found that fabricated allegations of traumatic experiences contained more inconsistent details both at 3 months and 6 months. The total amount of detail for each type of allegation (true or false) does tend to decrease over time. Additionally, as these figures suggest, the researchers found that the number of details present in genuine reports continued to decrease over time whereas fabricated stories 'levelled off in detail.
+
+November 1, 2021
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+
+Hunt and Bull (2012) reviewed signs that can be used to differentiate true allegations of sexual assault from false ones and concluded that the literature did not support the hypothesis that emotional distress was predictive of the truthfulness of the allegation. This is consistent across the literature, and emotional distress (e.g., crying) is not regarded as a reliable predictor of the accuracy or truthfulness of an allegation. Additional research is needed, but at this point there is little empirical support to indicate that being emotionally upset, distressed, or crying while reporting an assault indicates that the report is more likely to be true. This is likely due to the fact that such reactions can also occur in false allegations for various reasons, including a false memory or an attempt to mislead by those who know this sort of reaction would be expected of a true allegation.
+
+Individuals who have been sexually assaulted have higher rates of mental disorders than individuals who have not been sexually assaulted, and this includes significantly higher rates of post-traumatic stress disorder, depression, bipolar disorder, drug use disorders, and alcohol use disorders. Emily R. Dworkin, Risk for Mental Disorders Associated with Sexual Assault: A Meta-Analysis, 21 Trauma, Violence, & Abuse (2020), pp. 1011-1028. Any of these mental disorders that occur more frequently among those who have been sexually assaulted can affect memory and recall, requiring assessment on a case-by-case basis.
+
+Varying degrees of post-traumatic stress symptomatology occur in significant proportions of victims following sexual assault and last for varying durations. Emily R. Dworkin, Anna E. Jaffe, Michele Bedard-Gilligan, and Skye Fitzpatrick, PTSD in the Year Following Sexual Assault: A Meta-Analysis of Prospective Studies, Trauma, Violence, & Abuse (2021) https://doi.org/10.1177/15248380211032213. A substantial number of people never fully remit from their PTSD even after many years, and variables associated with a longer time to remit from an episode of chronic PTSD include a history of alcohol abuse and a history of childhood trauma. Caron Zlotnick, Meredith Warshaw, et al., Chronicity in Posttraumatic Stress Disorder (PTSD) and Predictors of Course of Comorbid PTSD in Patients with Anxiety Disorders, l2 J. Traumatic Stress (1999), 89-100.
+
+Symptoms of PTSD include distressing memories of the event; intense or prolonged psychological distress at exposure to cues that symbolize or resemble an aspect of the traumatic event; marked physiological reactions to cues that symbolize or resemble an aspect of the traumatic event; avoidance or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); and avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th Ed., Arlington, VA: American Psychiatric Association (2013), pp. 271-272. Individuals with any of these symptoms are particularly unlikely to engage in continued communication or friendly gestures with an alleged perpetrator, to wear clothing provided by an alleged perpetrator, or to unnecessarily recreate a sexual assault event, any of which would be expected to elicit intense distress.
+
+Comey, Moe, Pomerantz and Rohrbach November I, 2021 Page 12
+
+C. Dr. Ryan
+
+Dr. curriculum vitae is attached as Exhibit D. His report is attached as Exhibit E. Attached as Exhibit F is a list of material reviewed by Dr...
+
+Dr.. is an expert in the field of forensic psychiatry and will offer opinions as such. He will offer the opinions and diagnoses contained in his report, the bases for those opinions, and the significance of the diagnoses and opinions.
+
+D. Bennett Gershman
+
+Professor Gershman is a Distinguished Professor of Law at the Elisabeth Haub School of Law of Pace University since its founding as the Pace Law School in 1976. He has also taught as a visiting professor at Cornell Law School and Syracuse Law School. Prior to coming to Pace, he was a prosecutor in the Manhattan District Attorney's Office and the New York State Anti-Corruption Office. Professor Gerslunan's extensive scholarship has had an essential role in establishing the study of prosecutorial misconduct, a subject at the intersection of criminal procedure and professional ethics. He is a leading authority on prosecutorial misconduct and the author of the treatise, Prosecutorial Misconduct, a preeminent resource for scholars and practitioners.
+
+We expect Professor Gershman to provide testimony on best practices to ensure the integrity of any prosecution, focusing on investigation, witness preparation, media contact, neutrality, obligations to provide accurate information, and relationship with crime victims, their counsel, and case-related civil litigation. His extensive experience and credentials are recited in his curriculum vitae, annexed as Exhibit G.
+
+E. Robert Kelso
+
+Mr. Kelso is CEO of Forensic Pursuit. He has over 25 years of experience in computer forensics, engineering and software technology. He holds Bachelor's and degrees from University of Colorado at Boulder in aerospace engineering and astrodynamics, respectively. He is currently an adjunct professor at University of Denver teaching computer forensics at the level. He holds multiple computer forensics certifications including EnCE, CHFI, ACE and AME. His curriculum vitae is attached. Exhibit H. Mr. Kelso has previously testified in federal and state courts as an expert witness in computer forensics and has been appointed a "special =" by the court on multiple occasions.
+
+We anticipate that Mr. Kelso will testify about the user data associated with certain devices seized and searched by the government's team in this case, documents and photographs extracted from certain of those devices, and the metadata associated with certain documents and photographs. He may also testify generally about computer forensic principles associated with the creation of documents, storage and retrieval of digital documents and photographs, including
+
+November 1, 2021
+
+Page 13
+
+the limits to the information that can be gleaned from the metadata. Mr. Kelso may testify in rebuttal to any testimony offered by the government through Stephen Flatley. As trial preparation proceeds, the defense will update the topics for Mr. Kelso if any arise.
+
+F. John
+
+Mr. was a Special Agent with the United States Department of the Treasury, Internal Revenue Service Criminal Investigation ("IRS-Cl") for over twenty-five years. During his tenure at IRS-CI, Mr. led the New York Asset Forfeiture Task Force and participated in numerous criminal investigations involving complex fraud, corruption, bribery. tax evasion, money laundering, and asset forfeiture. Since retiring from the IRS in 2013, Mr. has worked as a financial investigator and consultant for several private investigation companies and government enforcement agencies. He currently runs his own private financial investigation and consulting company called JDL Services, Inc. Mr. holds a bachelor's degree in Business Administration, Accounting and Finance from Pace University. His curriculum vitae is attached as Exhibit I.
+
+It is expected that Mr. will testify about his review of certain financial records provided by the government in discovery. Specifically, Mr. will discuss various transfers of funds that are reflected in the financial records and explain the information contained in the financial records regarding those transfers.'
+
+G. Gerald LaPorte
+
+Mr. LaPorte is a Forensic Chemist and Document Dating Specialist with the firm Welch LaPorte &Associates Forensic Laboratories. He currently is the Director of Research Innovation for Florida International University, Global Forensic and Justice Center. Prior to that, he was the Director of the U.S. Department of Justice, National Institute of Justice, Office of Investigative and Forensic Sciences. He has testified as an expert witness in numerous cases and has multiple professional honors in this field. His curriculum vitae is attached. Exhibit J
+
+Defendant anticipates the receipt of documents produced by the government and documents received pursuant to defense subpoena included but not limited to These documents may require analysis regarding the dates of creation, completeness, alteration and manipulation. When these documents are disclosed, Defendant will seek to have them analyzed and present testimony on the analysis as needed.
+
+The defense does not believe that the Court needs to (pal, as an expert to offer the proposed testimony. Nevertheless, we hereby notice Mr. as a potential expert witness in an abundance of caution.
+
+November 1, 2021
+
+Page 14
+
+H. Jennifer Naso
+
+Ms. Naso is a Forensic Document Examiner who worked for and received specialized training from the United States Secret Service as a Document Analyst. Ms. Naso has a of Science in Forensic Science and a Bachelor of Arts in Psychology. She has over 15 years of experience examining and determining authorship and authentication of documents. Her curriculum vitae is attached as Exhibit K.
+
+Defendant anticipates the receipt of documents produced by the government and pursuant to defense subpoena included but not limited t These documents may require analysis regarding the dates of citation, completeness, alteration and manipulation. When these documents are disclosed, Defendant will seek to have them analyzed and present testimony on the analysis as needed.
+
+#### H. RESERVATION OF RIGHTS
+
+The defense reserves the right to amplify the disclosures contained herein based on testimony and other evidence presented during the government's case-in-chief. The defense also reserves the right to call additional expert witnesses and will promptly provide additional disclosure notice.
+
+## III. RIGHT TO SUPPLEMENT
+
+Ms. Maxwell reserves the right to supplement these opinions depending on the evidence produced at trial. To the extent that any accuser claims to have been "groomed" or otherwise testifies to the challenged opinions of Dr. Rocchio or other opinions properly rebutted by expert testimony Ms. Maxwell reserves the right to identify and rebut this testimony after the close of the government's case in chief.
+
+Very Truly Yours,
+
+![](_page_14_Picture_12.jpeg)
+
+Jeffrey S. Pagliuca
+
+Enclosures

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marker2/court-us-v-maxwell-cr/EFTA02835895/EFTA02835895.md

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+## Exhibit B (Under Seal)

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marker2/court-us-v-maxwell-cr/EFTA02835896/EFTA02835896.md

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+#### UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+UNITED STATES OF AMERICA
+
+S2 20 Cr. 330 (AJN)
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+#### THE GOVERNMENT'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION IN LIMINE TO PRECLUDE EXPERT TESTIMONY OF DR. RYAN =, BENNETT GERSHMAN, ROBERT KELSO, JOHN GERALD LAPORTE. AND JENNIFER NASO
+
+DAMIAN United States Attorney for the Southern District of New York One St. Andrew's Plaza New York, New York 10007
+
+Maurene Comey Alison Moe Lara Pomerantz Andrew Rohrbach Assistant United States Attorneys Of Counsel
+
+### TABLE OF CONTENTS
+
+#### PRELIMINARY STATEMENT
+
+The defendant has notified the Government that she plans to call six additional experts. One of them, Dr. Ryan and drafted a lengthy report, containing largely a recitation of hearsay, attributing some but not all of Another, Bennett Gershman, is a purported expert on prosecutorial misconduct. Neither of these issues is relevant at trial, and both experts should be precluded.
+
+The defendant has failed to provide adequate notice as to the four remaining experts. Instead of describing those experts' opinions and the bases for them, as required by Rule 16, the notice identifies topics on which the experts might testify. The Government is therefore not able to interpose a Daubers challenge at this time.' The Court should require the defense to provide supplemental expert notice forthwith or preclude these witnesses from testifying.
+
+# I. APPLICABLE LAW
+
+Federal Rule of Criminal Procedure 16(bX1)(C) provides that where, as here, the Government has provided expert notice and requested reciprocal notice from the defense, the defendant "must . . . give to the government a written summary of any [expert] testimony that the defendant intends to use ... as evidence at trial." Such summary must "describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R.
+
+<sup>&#</sup>x27; As described below, however, insofar as two of these witnesses will testify as fact witnesses related to computer forensics and financial records, the Government does not object to their testimony on Daubers grounds.
+
+Crim. P. 16(bX1)(C).
+
+As the 1993 amendments to Rule 16 note, the Rule is meant to "minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination." Id. 1993 Amend. Accordingly, the Rule requires the defense to provide (1) "notice of the expert's qualifications which in turn will permit the requesting party to determine whether in fact the witness is an expert within the definition of Federal Rule of Evidence 702;" (2) a "summary of the expected testimony," which "permit[s] more complete pretrial preparation by the requesting party;" and (3) "a summary of the bases of the expert's opinion." Id.
+
+The content of the expert notice must actually "summarize the experts' opinions." United States v. Ulbricht, 858 F.3d 71, 115 (2d Cir. 2017), abrogated on other grounds by Carpenter v. United States, 138 S. Ct. 2206 (2018). "Merely identifying the general topics about which the expert will testify is insufficient; rather, the summary must reveal the expert's actual opinions." United States v. Valle, No. 12 Cr. 847 (PGG), 2013 WL 440687, at •5 (S.D.N.Y. Feb. 2, 2013); see Ulbricht, 858 F.3d at 115 (calling "plainly inadequate" a disclosure that "listed general and in some cases extremely broad topics on which the experts might opine"). The notice then must describe the bases and reasons for those opinions. "[A] general description of possible bases does not meet the requirements of Rule 16(b)(1)(C)." United States v. Tuzman, 2017 WL 6527261, at •10 (S.D.N.Y. Dec. 18, 2017) (internal quotation marks omitted). "Merely asserting that [an expert] will provide [an] opinion based on some unspecified method ... based on data from unspecified sources, does not suffice." United States v. Ulbricht, No. 14 Cr. 68 (KBF), 2015 WL 413318, at \*6 (S.D.N.Y. Feb. 1, 2015), aff'd, Ulbricht, 858 F.3d 71. A district court has "broad discretion" over the remedy for failure to comply with Rule 16, including "ordering the exclusion of evidence." Ulbricht, 858 F.3d at 115 (internal quotation marks omitted).
+
+As the Court is well aware, a properly noticed expert witness may then testify if such testimony complies with Federal Rule of Evidence 702. Accordingly, before admitting expert testimony, the Court must conclude that (1) the witness is qualified to be an expert, (2) the proposed expert testimony is reliable, and (3) the proposed testimony is relevant. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993); Nimely v. City of New York, 414 F.3d 381, 396 n.11 (2d Cir. 2005). "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Dauber:, 509 U.S. at 591 (internal quotation marks omitted). The party that proffers the testimony bears the burden of showing that it is admissible by a preponderance of the evidence. See id. at 592 & n.10 (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)).
+
+Rules 401 and 403 of the Federal Rules of Evidence state that relevant evidence is admissible when it tends to make the existence of any fact that is of consequence more or less probable than it would be without the evidence, but it may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice, confusion of the issues, and misleading the jury. "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 . . . exercises more control over experts than over lay witnesses." Daubert, 509 U.S. at 595 (quoting authority omitted). Among other things, the
+
+Court "must consider whether an expert's proposed testimony would usurp the province of the judge to instruct on the law, or of the jury to make factual determinations." Island Intel!. Prop. LLC v. Deutsche Bank AG, No. 09 Civ. 2675 (KBF), 2012 WI. 526722, at ■2 **(S.D.N.Y. Feb. 14, 2012) (citations omitted).** 
+
+#### **II. THE COURT SHOULD PRECLUDE THE TESTIMONY OF DR. RYAN**
+
+Dr. Ryan is a psychiatrist who frequently testifies as an expert winless.
+
+According to the notice provided by the defendant, Dr.. "will offer the opinions and diagnoses contained in his report, the bases for those opinions, and the significance of the diagnoses and opinions." (Ex. A, Def. Expert Notice, at 12).2
+
+This Court should exclude Dr. testimony. As disclosed, his expert opinions ■ **have no relevance, because none bears on the facts of this case or Minor Victim-Vs credibility. Any basis for those opinions is therefore also irrelevant. Similarly, absent some asyet-undisclosed relevance, the "significance" of Dr. opinions have no bearing here: Because none of those opinions bear on the facts of this case or a witness's credibility, their introduction would serve only Dr.** proffered fact testimony should also be
+
+<sup>2</sup> The Government has attached, and moves to file, the same redacted version of the defendant's expert notice attached to its previous filings (See Dkt. Nos. 418 and 424).
+
+excluded. Much of it would constitute hearsay, and the small portion that may not would run afoul of other rules of evidence.
+
+**A. Dr. [REDACTED] Opinions [REDACTED] Are Irrelevant**
+
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED] [REDACTED] [REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]
+
+---
+
+<sup>3</sup> The Government moves to redact portions of this brief and seal Exhibit B, which is Dr. [REDACTED] evaluation of Minor Victim-4, in accordance with the three-part test articulated by the Second Circuit in *Lugosch v. Pyramid Co. of Onondaga*, 435 F.3d 110 (2d Cir. 2006). Although this brief and the attached exhibit are judicial documents subject to the common law presumption of access, because this brief discusses a psychiatric evaluation of Minor Victim-4 contained in Exhibit B, consisting throughout of [REDACTED], these redactions and sealing requests are narrowly tailored to protect her privacy interest.
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED] Dr. [REDACTED] conclusion on this issue should thus be excluded to avoid “confusing the issues,” as well as causing “undue delay,” and “wasting time.” Fed. R. Evid. 403; *see United States v. Blum*, 62 F.3d 63, 68 (2d Cir. 1995) (assessing whether evidence would result in “confusing the issues” under Rule 403 by asking whether it would bear upon, or distract from, “the central issue” of the defendant’s “guilt or innocence”); *United States v. Stewart*, 433 F.3d 273, 313 (2d Cir. 2006) (upholding preclusion of evidence that would have necessitated a “mini-trial”).
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+---
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
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+IN
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+I
+
+**B. The Bases of Dr. [REDACTED] Opinions Are Not Independently Admissible**
+
+According to the defendant's expert notice, she also seeks to elicit the "bases" for the opinions in Dr. [REDACTED] [REDACTED] report. Because those opinions themselves should not be admitted for the reasons just discussed, there is no ground to admit their basis. [REDACTED]
+
+[REDACTED]
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+To start, all the summarized information about Minor Victim-4's past is hearsay or otherwise inadmissible. Dr. [REDACTED] was obviously not a percipient witness to any of the conduct discussed in his report, and instead derived his understanding of Minor Victim-4's past from out-of-court statements by Minor Victim-4 and others, [REDACTED]
+
+[REDACTED]
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+
+In any event, no information about the bases of Dr. [REDACTED] opinions can satisfy the requirements of Rule 703. Pursuant to that Rule, although an expert may rely on hearsay in forming his opinion, the “expert may not, however, simply transmit that hearsay to the jury.” *United States v. Mejia*, 545 F.3d 179, 197 (2d Cir. 2008). Instead, “if facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” *See* Fed. R. Evid. 703. Here, the probative value of relaying the hearsay would be essentially nil: [REDACTED]
+
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
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+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]
+
+**C. Any Undisclosed Significance of Dr. [REDACTED] Opinions Is Inadmissible**
+
+In addition to testifying about [REDACTED]
+
+[REDACTED]
+
+[REDACTED] As discussed above, to the extent his
+
+[REDACTED] report discloses the significance of his opinions, for purposes of this case they have none, because nothing in the report concerns the elements of or defenses to the charged offenses, or Minor Victim-4's ability to testify accurately. (*See supra* at 5 to 11). And to the extent Dr. [REDACTED] would testify about any undisclosed significance to his opinions, the failure to disclose that testimony itself renders it inadmissible.
+
+The party proposing to call an expert must provide "a written summary of any testimony that the defendant intends to use." Fed. R. Crim. P. 16(b)(1)(C). The Rule requires that the expert disclose what his testimony will be, not just the topics about which he will testify. *See United States v. Valle*, No. 12 Cr. 847 (PGG), 2013 WL 440687, at \*5 (S.D.N.Y. Feb. 2, 2013) ("Merely
+
+identifying the general topics about which the expert will testi& is insufficient; rather, the summary must reveal the expert's actual opinions."); United States v. Duvall, 272 F.3d 825, 828 (7th Cir. 2001) ("The Rule requires a summary of the expected testimony, not a list of topics."). "Proper expert disclosures are not a mere technicality with which compliance may be made or not—they are required by Rule 16 of the Federal Rules of Criminal Procedure" and the requirements "do not only apply to one side and not the other." United States v. Ulbricht, No. 14 Cr. 68 (KBF), 2015 WL 413318, at \*2 (S.D.N.Y. Feb. 1, 2015), ard, 858 F.3d 71 (2d Cir. 2017).
+
+Such a belated disclosure may require a Daubers hearing to test the reliability of Dr. heretofore unrevealed analysis on this question. But as the record now stands, because Dr. expert opinions are irrelevant without the addition of some undisclosed significance, his testimony should be excluded. See Ulbricht, 2015 WL 413318, at •5 (collecting cases concerning the exclusion of expert testimony for insufficient notice).8
+
+# D. Dr. Fact Testimony Is Inadmissible
+
+The defendant's disclosure states that, in addition to providing his expert opinions and their basis, Dr. ■ **would testify about** 
+
+**<sup>8</sup> To the extent the defendant is aware of additional conclusions Dr. would offer, those should be disclosed immediately—both because without such disclosures his opinions have no apparent relevance, and because even the current disclosures are vague yet disclosed relatively close to trial. See. e.g., Valle, 2013 WL 440687, at •6 (ordering rapid supplemental disclosure).** 
+
+[Redacted]
+
+[Redacted] If Dr. [Redacted] had some admissible substantive testimony, the Government would not object to a foundational account of how he evaluated Minor Victim-4. The defendant has not, however, identified any admissible substantive testimony from Dr. [Redacted].
+
+[Redacted]
+
+---
+
+This Court has discretion, after careful consideration of alternatives, to exclude Dr. [Redacted] testimony based solely on the inadequacy of the defendant's disclosures and the lateness of any supplemental disclosures. *See Ulbricht*, 858 F. 3d at 116-17 (affirming district court's exclusion of two defense experts on those grounds).
+
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+---
+
+[REDACTED]  
+[REDACTED]  
+[REDACTED]
+
+It remains theoretically possible that Dr. [REDACTED] interview with Minor Victim-4 will become relevant for impeaching her with a prior inconsistent statement. At present, however, the Government does not expect that Minor Victim-4's testimony will be contradicted by statements she made to Dr. [REDACTED]. And to be clear, Minor Victim-4's expected testimony about the defendant's involvement in Epstein's scheme is not inconsistent with the fact that Minor Victim-4 did not describe those instances to Dr. [REDACTED]. "It is well settled that for two statements to be inconsistent, they need not be diametrically opposed. Nevertheless, the statements must be inconsistent." *United States v. Trzaska*, 111 F.3d 1019, 1024-25 (2d Cir. 1997) (citations and internal quotation marks omitted). In *Trzaska*, the Circuit explained that a witness's statement on one occasion that his son was willing to give away certain guns was not inconsistent with the witness's statement on another occasion that his son was obsessed with different guns, or guns in general. *Id.* Similarly, that Minor Victim-4 described to Dr. [REDACTED] certain aspects of Epstein's abuse that did not involve the defendant is not inconsistent with describing other aspects that did involve the defendant.
+
+In addition, the defendant does not need Dr. [REDACTED] testimony to inform the jury that Minor Victim-4 has not always disclosed the defendant's role in Epstein's abuse. Minor Victim-4 also failed to mention the full extent of the defendant's role during her first FBI interview. Because the Government believes that in this interview—unlike the [REDACTED] interview—Minor Victim-4 was asked questions that would have referenced the defendant in a complete answer, the Government
+
+expects to elicit the failure to mention her on direct, and does not object to reasonable cross examination on the subject.
+
+It may nonetheless be that after Minor Victim-4 testifies the defendant will be able to argue that some statement made to Dr.. satisfies the multiple prerequisites for introducing extrinsic evidence of a prior inconsistent statement. See generally United States v. Ghailani, 761 F. Supp. 2d 114, 117-19 (S.D.N.Y. 2011) (discussing requirements). 1° As the Court has noted, any argument on that score must await the presentation of evidence. (See Nov. 11, 2021 Sealed Tr., at 194). But at present, the defendant has identified no relevant fact testimony that Dr.. could offer. Because his expert testimony is similarly inadmissible, he should be excluded as a witness absent further developments at trial.
+
+Because the rough transcript is not a verbatim transcript, it cannot be offered as extrinsic evi ence of prior inconsistent statements. See United States v. A/monte, 956 F.2d 27, 29 (2d Cir. 1992) (per curiam) ("[A] `third party's characterization' of a witness's statement does not constitute a prior statement of that witness unless the witness has subscribed to that characterization."); United States v. Leopardi, 623 F.2d 746, 757 (2d Cir. 1980) (FBI notes offered to impeach not attributable to witness because "a witness may not be charged with a third party's characterization of his statements unless the witness has subscribed to them"); see also Gliailani, 761 F. Supp. 2d at 117-18, 120 (excluding testimony about prior witness interviews offered as prior inconsistent statements due to, among other things, concerns about translation errors).
+
+<sup>1°</sup> To be clear, although Dr. could conceivably testify as to his recollection of some prior inconsistent statement by Minor Victim-4, the rough transcript of his interview with her cannot become admiqsible as extrinsic evidence of Minor Victim-4's statements regardless how she testifies. That label—"rough transcript"—comes from the document itself. (3505-035, at 1). And it is quite obviously rough. The document contains numerous errors, including on material points.
+
+#### III. THE COURT SHOULD PRECLUDE THE TESTIMONY OF BENNETT CERSHMAN
+
+The defense proposes to call Bennett Gershman, a professor of law at Pace University, for the following testimony:
+
+> We expect Professor Gershman to provide testimony on best practices to ensure the integrity of any prosecution. focusing on investigation, witness preparation, media contact, neutrality, obligations to provide accurate information, and relationship with crime victims, their counsel, and case-related civil litigation.
+
+(Ex. A at 12).
+
+This testimony should be precluded as irrelevant. At the conference on November 1, 2021, the Court precluded "affirmative evidence by the defense that goes to the thoroughness of the investigation," (11/01/21 Tr. at 17:15-17), including "evidence of the public outcry and scrutiny that preceded the decision to charge the defendant," (id. at 21:1-9), as well as evidence regarding "why and when the government conducted the investigation," including any defense evidence that the Government "has a legally improper motive for prosecuting [the defendant] or somehow [is] fabricating evidence or suborning perjury or the like," (id. at 23:2-6). The Court reaffirmed the settled law in this Circuit that "the government is not on trial." (Id. at 23:10-11 (quoting United States v. Knox, 687 F. App'x 51 (2d Cir. 2017))). To the extent evidence similar to this evidence is permissible, the Court concluded that it was permitted only as "relevant cross-examination of the government's witnesses." (Id. at 27:19-29:24).
+
+Gershman's proposed testimony is relevant only to the defense theories that the Court has precluded. This testimony invites the jury to conclude that either the New York investigation or Florida investigation—or both—lacked "integrity." (Ex. A at 12). Whether that supposed lack of "integrity" goes to an argument about thoroughness, or an argument about motive and the corruption of evidence, the Court has already ruled that the defense may not offer affirmative evidence of that point to the jury.
+
+Even if this testimony was not plainly barred by the Court's prior ruling, it should still be precluded for inadequate notice. The expert notice for this witness provides only general topics of discussion and not Gershman's opinions, and it does not identify the bases for his testimony which are independent reasons to preclude Gershman or to require supplemental notice. It is likely that such information would demonstrate the unreliability or further irrelevance of Gershman's testimony. In a recent case, however, Gershman attempted to offer precisely the sort of testimony that this Court has already excluded. See U.S. Securities and Exchange Comm'n v. Collector's Coffee Inc., -- F. Supp. 3d —, 19 Civ. 4355 (VM) (GWG), 2021 WL 3418829, at \*2 (S.D.N.Y. Aug. 5, 2021) (excluding Gershman's testimony in a civil case that, inter alio, "the SEC improperly obtained an ex parte order from the Court," and "the SEC's lawyers have 'engaged in a pattern of irregular, overzealous, unethical, and unlawful conduct' throughout this litigation"). The Court should not permit expert testimony on those subjects.
+
+### IV. BEFORE THE DEFENDANT'S REMAINING WITNESSES OFFER EXPERT TESTIMONY, THE DEFENDANT SHOULD BE REQUIRED TO PROVIDE SUPPLEMENTAL NOTICE
+
+The defense provided brief notice of four additional experts: Robert Kelso, who would testify about computer forensics; John who would testify about financial records; and two forensic document specialists. The defendant's expert notice is not clear regarding these witness's expected testimony and the bases for that testimony. Insofar as Kelso and will testify as fact witnesses, the Government does not object to that testimony. If they are expected to testify as experts, however, and before any testimony by the forensic document specialists, the defense must say more about these witnesses' opinions and the bases for them. The Government is not able to take a position on the reliability or relevance of those opinions from the face of the expert notice. Given the proximity to trial, any additional delay to provide sufficient notice should be closely scrutinized by the Court, and entirely precluded if notice is not provided forthwith.
+
+# A. Robert Kelso and John
+
+The defendant anticipates calling Robert Kelso, a computer forensics specialist, to testify about:
+
+> the user data associated with certain devices seized and searched by the government's team in this case, documents and photographs extracted from certain of those devices, and the metadata associated with certain documents and photographs. He may also testify generally about computer forensic principles associated with the creation of documents, storage and retrieval of digital documents and photographs, including the limits to the information that can be gleaned from the metadata. Mr. Kelso may testify in rebuttal to any testimony offered by the government through Stephen Flatley. As trial preparation proceeds, the defense will update the topics for Mr. Kelso if any arise.
+
+(Ex. A at 12-13).
+
+Similarly, the defendant anticipates John-, a financial investigator, to testify about:
+
+his review of certain financial records rovided by the government in discovery. Specifically, Mr. will discuss various transfers of funds that are reflected in the financial records and explain the information contained in the financial records regarding those transfers.
+
+(Id. at 13).
+
+To the extent Kelso and are expected to summarize evidence otherwise in the record, that testimony is not expert testimony, and therefore its admission is not precluded by Rule 702. See United States v. Lebedev, 932 F.3d 40, 50 (2d Cir. 2019) (concluding that "an account and litigation consultant" who "summar[ized] . . . the relevant financial records" was not an expert witness). The Government has similarly provided expert notice in an abundance of caution for Stephen Flatley, an FBI computer forensic examiner who will testify as a fact witness about his extraction of devices seized pursuant to court authorized search warrants and evidence recovered from those devices."
+
+To the extent Kelso and would testify based on their "scientific, technical, or other specialized knowledge," however, that testimony is expert testimony. Id. (quoting Fed. R. Evid. 702(a)). And any such testimony is not reflected in the expert notice. These expert notices provide lists of "general and in some cases extremely broad topics," which is "plainly inadequate" under Rule 16. Ulbricht, 858 F.3d at 115. For instance, the notice for Kelso states that he will testify "generally about computer forensic principles associated with the creation of documents," and testify "about user data associated with certain devices seized and searched by the government's team in this case." (Ex. A at 12). It also states that the defense may "update the topics for Mr. Kelso" before trial. (Id. at 13 (emphasis added)). Similarly, will "discuss various transfers of funds that are reflected in the financial records and explain the information contained in the financial records." (Id.). These lists of topics do not permit the Government to identify Kelso and opinions, determine whether the proffered experts are in fact expert on those subjects, and litigate the reliability and relevance of those opinions.
+
+<sup>&</sup>quot; The Government also pointed to four other cases in this District and the Eastern District in which Flatley testified, including United States v. Kelly, 19 Cr. 286 (AMD) (E.D.N.Y.).
+
+Accordingly, the Court should preclude expert testimony from Kelso and unless and until the defense to provides supplemental expert notice forthwith.12 If the defense does so, the Government should have an opportunity at that time to litigate its admissibility. And if the defense does not do so, those witnesses should be limited to purely factual testimony. See Lebedev, 932 F.3d at 50 (affirming a limiting instruction clarifying that the witness was not providing an expert opinion).
+
+# B. Forensic Document Specialists
+
+Finally, the defendant has identified two forensic document specialists who she may call as expert witnesses. Gerald LaPorte is a "Forensic Chemist and Document Dating Specialist," and Jennifer Naso is a "Forensic Document Examiner." (Ex. A at 13-14). Regarding their expert opinions, the defendant writes:
+
+> Defendant anticipates the receipt of documents produced by the government and documents received pursuant to defense subpoena included but not limited to journal pages by witness [Minor Victim-2]. These documents may require analysis regarding the dates of creation, completeness, alteration and manipulation. When these documents are disclosed, Defendant will seek to have them analyzed and present testimony on the analysis as needed.
+
+(Id. at 13-14).
+
+This notice also does not provide the experts' "opinions" or "the bases and reasons for those opinions." Fed. R. Crim. P. 16(bX1)(C). It does not even identify the set of documents
+
+<sup>12</sup> Similarly, absent additional expert notice, Kelso and should be required to limit their testimony to facts in the record. Experts—but not other witnesses—may rely on facts or data that are not admissible, and may disclose them to the jury in certain circumstances. See Fed. R. Evid. 703, 705.
+
+purportedly awaited or topics of testimony, besides documents that "may require analysis," leading to whatever testimony is "needed." (Ex. A at 13-14). This is plainly inadequate under the rules, and the Government cannot litigate the qualifications, reliability, or relevance of unknown testimony about unidentified documents at this time.
+
+Of course, the Court has the option of permitting the defense to clarify this notice mid-trial whenever the defense receives and reviews the documents they have in mind. Doing so, however, would almost certainly lead to mid-trial Daubers briefing, possibly a mid-trial Daubers hearing, and late-breaking rebuttal expert notice by the Government.
+
+The better course is to require the defense to identify, immediately, the documents they expect to be the subject of forensic analysis and the precise forensic methodology that these experts will use to analyze those documents. That may—depending on the details—permit some Daubers litigation to occur now, because the Government may be able to agree with, or challenge, the notion that these experts are qualified to use the methodology, that the methodology is reliable, or that the document is relevant. See, e.g., Jennifer L. Mnookin, "Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability," 87 Va. L. Rev. 1723, 1726-27 (2001) (describing "major pretrial battles being waged over the admissibility of . . . expert evidence in handwriting identification"). <sup>13</sup>
+
+Here too, the Court should order the defendant to provide additional expert notice of the methodology these experts intend to use, and the precise documents they expect to examine. Such
+
+<sup>13</sup> It would of course defeat the purpose of an order along these lines if the defendant gives expert notice of numerous document examination methodologies, requiring extensive Daubers litigation that may stretch into trial and would far exceed the scope any actual testimony that may be presented at trial.
+
+an order will likely permit the Government to interpose a Daubert challenge now. Absent rapid supplemental notice along these lines, the Court should preclude the forensic document specialists.
+
+# CONCLUSION
+
+For the reasons set forth above, the Government respectfully requests that the Court preclude the testimony of Dr. Ryan and Bennett Gershman; preclude any expert testimony (as opposed to fact testimony) by Robert Kelso or John and preclude any testimony at all from the forensic document specialists, unless and until the defendant provides supplemental expert notice, which the Court should order the defense to provide forthwith.
+
+Dated: November 15, 2021 New York, New York
+
+Respectfully submitted,
+
+DAMIAN United States Attorney for the Southern District of New York
+
+By: /s/ Maurene Comey Alison Moe Lam Pomerantz Andrew Rohrbach Assistant United States Attorneys

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marker2/court-us-v-maxwell-cr/EFTA02835924/EFTA02835924.md

@@ -0,0 +1,437 @@
+UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+x
+
+UNITED STATES OF AMERICA
+
+v.
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+x
+
+20 Cr. 330 (MN)
+
+GHISLAINE MAXWELL'S RESPONSE TO THE GOVERNMENT'S MOTION TO PRECLUDE EXPERT TESTIMONY OF DR. RYAN =, BENNETT GERSHMAN, ROBERT KELSO, JOHN GERALD LAPORTE. AND JENNIFER NASO
+
+Jeffrey S. Pagliuca
+
+Laura A. Mennin er
+
+HADDON, P.C.
+
+150 East 10th Avenue
+
+Denver, CO 80203
+
+Phone: 303-831-7364
+
+Christian R. Everdell
+
+& GRESSER LLP
+
+800 Third Avenue
+
+New York, NY 10022
+
+Phone: 212-957-7600
+
+Bobbi C. Stemheim
+
+Law Offices of Bobbi C. Stemheim
+
+225 Broadway, Suite 715
+
+New York, NY 10007
+
+Phone: 212-243-1100
+
+Attorneys for Ghislaine Maxwell
+
+## TABLE OF CONTENTS
+
+| TABLE OF CONTENTS TABLE OF AUTHORITIES ARGUMENT I. Dr. Testimony Is Admissible. A. Factual background B. C. Excluding Dr. rights to confrontation and to present a defense | i ii I I I 3 5 6 |
+|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------|
+| 1.                                                                                                                                                                         | 7                |
+| 2.                                                                                                                                                                         | 12               |
+| 3. Dr. opinions are not unfairly prejudicial under Rule 403.                                                                                                               | 14               |
+| 4. Rule 703 does not bar Dr.. from testifying.                                                                                                                             | 14               |
+| 5. Dr. "fact testimony."                                                                                                                                                   | 16               |
+| 6. Conclusion                                                                                                                                                              | 17               |
+| II. Professor Gershman's Testimony is Admissible.                                                                                                                          | 17               |
+| III. This Court Should Reject the Government's Remaining Arguments                                                                                                         | 19               |
+| CONCLUSION                                                                                                                                                                 | 19               |
+| Certificate of Service                                                                                                                                                     | 21               |
+
+## TABLE OF AUTHORITIES
+
+#### Cases
+
+| California v. <i>Trombetta</i> , 467 U.S. 479 (1984).....                                                | 6      |
+|----------------------------------------------------------------------------------------------------------|--------|
+| <i>Chnapkova v. Koh</i> , 985 F.2d 79 (2d Cir. 1993).....                                                | 7      |
+| <i>Crane v. Kentucky</i> , 476 U.S. 683 (1986) .....                                                     | 6, 17  |
+| ██████████ v. <i>Alaska</i> , 415 U.S. 308 (1974).....                                                   | 6      |
+| <i>Delaware v. Van Arsdall</i> , 475 U.S. 673 (1986) .....                                               | 6      |
+| ██████████ v. <i>Wainwright</i> , 634 F.2d 272 (5th Cir. 1981) .....                                     | 17     |
+| <i>In re Zyprexa Prods. Liab. Litig.</i> , 489 F.Supp.2d 230 (E.D.N.Y. 2007) .....                       | 6      |
+| <i>Olden v. Kentucky</i> , 488 U.S. 227 (1988) .....                                                     | 6      |
+| <i>R.B. Ventures, Ltd. v. Shane</i> , No. 91 CIV. 5678 (CSH), 2000 WL 520615 (S.D.N.Y. May 1, 2000)..... | 16     |
+| <i>United States v. Abu-Jihaad</i> , 630 F.3d 102 (2d Cir. 2010).....                                    | 8      |
+| <i>United States v. Banks</i> , 520 F.2d 627 (7th Cir. 1975) .....                                       | 12     |
+| <i>United States v. Bari</i> , 750 F.2d 1169 (2d Cir. 1984) .....                                        | 7      |
+| <i>United States v. Butt</i> , 955 F.2d 77 (1st Cir. 1992) .....                                         | 7      |
+| <i>United States v. Certified Envtl. Servs., Inc.</i> , 753 F.3d 72 (2d Cir. 2014).....                  | 8      |
+| <i>United States v. Cronic</i> , 466 U.S. 648 (1984) .....                                               | 6      |
+| <i>United States v. Crosby</i> , 462 F.2d 1201 (D.C. Cir. 1972) .....                                    | 13     |
+| <i>United States v. DiPaolo</i> , 804 F.2d 225 (2d Cir. 1986).....                                       | 12, 13 |
+| <i>United States v. Glover</i> , 588 F.2d 876 (2d Cir. 1978) .....                                       | 7      |
+| <i>United States v. Hiss</i> , 88 F. Supp. 559 (S.D.N.Y. 1950) .....                                     | 7      |
+| <i>United States v. ██████████</i> , 213 F.3d 1253 (10th Cir. 2000) .....                                | 12     |
+| <i>United States v. Lanham</i> , 541 Fed. App’x 34 (2d Cir. 2013) .....                                  | 7      |
+| <i>United States v. ██████████</i> , 698 F.2d 1154 (11th Cir. 1983).....                                 | 8      |
+| <i>United States v. Litvak</i> , 808 F.3d 160 (2d Cir. 2015) .....                                       | 8      |
+
+|                                                                 | 8 12      |
+|-----------------------------------------------------------------|-----------|
+| United States v. , 583 F.3d 1265 (10th Cir. 2009)               |           |
+| United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980)          | 12        |
+| United States v. Sasso, 59 F.3d 341 (2d Cir. 1995)              | 3, 7, 8   |
+| United States v. Schaffer, 851 F.3d 166 (2d Cir. 2017)          | 14        |
+| United States v. Thompson, 976 F.2d 666 (11th Cir. 1992)        | 7         |
+| United States v. M, 692 F.3d 235 (2d Cir. 2012)                 | 8, 11, 16 |
+| United States v. Wilson, 493 F. Supp. 2d. 469 (E.D.N.Y. 2006)   | 7, 12     |
+| Washington v. Kellwood Co., 105 F. Supp. 3d 293 (S.D.N.Y. 2015) | 6         |
+
+## Other Authorities
+
+| 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence ( | M.     |
+|--------------------------------------------------------------------------|--------|
+| McLaughlin ed., 2d ed. 2009)                                             | 11, 13 |
+| Kenneth S. Broun, McCormick on Evidence (6th ed. 2006)                   | 13     |
+
+#### Rules
+
+| Fed. R. Evid. 401 | 5, 8      |
+|-------------------|-----------|
+| Fed. R. Evid. 402 | 11, 16    |
+| Fed. R. Evid. 403 | 5, 13     |
+| Fed. R. Evid. 613 | 15        |
+| Fed. R. Evid. 702 | 1, 5, 6   |
+| Fed. R. Evid. 703 | 6, 16, 17 |
+| Fed. R. Evid. 801 | 15        |
+
+# Constitutional Provisions
+
+| U.S. amend. VI.....        | 6 |
+|----------------------------|---|
+| U.S. Const. amends. V..... | 6 |
+
+Ghislaine Maxwell submits this Response to the Government's Motion to Preclude the Expert Testimony of Dr. Ryan M, Bennett Gershman, Robert Kelso, John Gerald LaPorte, and Jennifer Naso.
+
+# INTRODUCTION AND SUMMARY OF THE ARGUMENT
+
+The government claims to bring its motion under Federal Rule of Evidence 702. In reality, though, the government doesn't challenge the expertise of any of Ms. Maxwell's expert witnesses or the reliability of their opinions. Instead, training its sights almost exclusively on Dr. M, the government says that the opinions of Ms. Maxwell's expert witnesses are either irrelevant or unfairly prejudicial. The government also claims to lack adequate notice of some of the experts' proposed opinions.
+
+This Court can deny the motion for the simple reason that the government is proceeding under the wrong rule at the wrong time. Because Ms. Maxwell's expert witnesses are qualified and because their opinions are reliable, their testimony is admissible under Rule 702. As for relevance and prejudice, the government's arguments are both unfounded and premature. Finally, if the government is entitled to additional notice, Ms. Maxwell will provide it.
+
+For the reasons given below, the exclusion of Ms. Maxwell's expert witnesses would violate both her constitutional right to confrontation and her constitutional to present a defense. This Court, therefore, should deny the government's motion.
+
+# ARGUMENT
+
+# I. Dr. Testimony Is Admissible.
+
+Although the government offers some type of challenge, however conclusory, to all of Ms. Maxwell's expert witnesses, the true target of the government's motion is Dr. Ryan.. Dr. is an eminently qualified M.D. who conducted an independent medical examination of
+
+His 108-page,
+
+detailed report, is based on extensive review of the documentary evidence, medical records, and court files, as well as a 6 12/ hour interview reliability of Dr. report is unquestioned and unquestionable.
+
+From the government's perspective, however, the report's conclusions are highly problematic for its case, which is why the government is so eager to preclude Dr. testinion!,.
+
+In his report, Dr.. documents
+
+[REDACTED] They are not unfairly prejudicial or otherwise inadmissible. And because the government’s other arguments are undeveloped or unsuited for resolution pretrial—the government is always free to raise specific evidentiary objections in context—this Court should reject the government’s request to preclude Dr. [REDACTED] from testifying.
+
+**A. Factual background.**
+
+Accuser-4, [REDACTED] is the named victim in several of the counts against Ms. Maxwell, including conspiracy. The government claims she was abused by Mr. Epstein from 2001 to 2004.
+
+[REDACTED]  
+[REDACTED]  
+[REDACTED] Mot. Ex. B. Dr. [REDACTED] reviewed [REDACTED] records, and interviewed [REDACTED] over the course of 6 1/2 hours. *Id.* at 1, 2. Dr. [REDACTED] produced a 108-page report (which the government produced to Ms. Maxwell, recognizing its relevance and exculpatory value).
+
+As is relevant to the government’s motion to preclude Dr. [REDACTED] from testifying, the report addresses two areas that are essential to Ms. Maxwell’s defense in this case: [REDACTED]
+
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]  
+[REDACTED]
+
+Finally, regarding the government's allegations in this case, Dr. [REDACTED] report reveals that
+
+**B. The government’s motion is not a Rule 702 challenge.**
+
+The government’s motion invokes Federal Rule of Evidence 702. That rule says:
+
+A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
+
+- (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
+- (b) the testimony is based on sufficient facts or data;
+- (c) the testimony is the product of reliable principles and methods; and
+- (d) the expert has reliably applied the principles and methods to the facts of the case.
+
+Fed. R. Evid. 702.
+
+Despite relying on Rule 702, the government’s motion has little if anything to do with it. The essence of Rule 702 are the requirements that a witness must be qualified to offer expert opinions and that his opinions must be reliable. Fed. R. Evid. 702(b)-(d). Here, however, the government concedes the expertise of Dr. [REDACTED] and the reliability of his opinions.
+
+Instead of seeking relief under Rule 702, the government actually seeks relief under Rules 401 and 403, with an additional mention of Rule 703. None of the government's arguments is well taken, however, if only because, "as with an expert's qualifications and the reliability of his or her methodology, the liberality of Rule 702 insists that 'doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions."' Washington v. Kellwood Co., 105 F. Supp. 3d 293, 308 (S.D.N.Y. 2015) (quoting In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d 230, 288 (E.D.N.Y. 2007)).
+
+# C. Excluding Dr. expert opinions would deprive Ms. Maxwell of her constitutional rights to confrontation and to present a defense.
+
+"Whether rooted directly in the Due Process Clause ..., or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); see U.S. Const. amends. V, VI. A court violates a defendant's right to present a defense when it excludes competent and reliable evidence that is central to the defense. See Crane, 476 U.S. at 690. The exclusion of such evidence "deprives a defendant of the basic right to have the prosecutor's case encounter and 'survive the crucible of meaningful adversarial testing.' Id. at 690-91 (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
+
+The Constitution also affords Ms. Maxwell the right to confront her accusers. U.S. amend. VI; Olden v. Kentucky, 488 U.S. 227, 231 (1988). "[A] criminal defendant states a violation of the Confrontation Clause by showing that [she] was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors ... could
+
+appropriately draw inferences relating to the reliability of the witness.'" Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting v. Alaska, 415 U.S. 308, 318 (1974)). "Crossexamination is the principal means by which the believability of a witness and the truth of [her] testimony are tested." =, 415 U.S. at 316.
+
+#### 1.
+
+"For over [seventy) years, federal courts have permitted the impeachment of government witnesses based on their mental condition at the time of the events testified to." See United States v. Butt, 955 F.2d 77, 82 (1st Cir. 1992) (citing United States v. Hiss, 88 F. Supp. 559, 559-60 (S.D.N.Y. 1950)). As the Second Circuit has explained, "A clinical history of mental illness is probative of the credibility of the witness." Chnapkova v. Koh, 985 F.24 79, 81 (2d Cir. 1993), abrogation on other ground recognized by United States v. Lanham, 541 Fed. App'x 34, 36 (2d Cir. 2013).
+
+The Second Circuit has also held that a witness's mental health condition at the time of her testimony is relevant and admissible. United States v. Sasso, 59 F.3d 341, 347-48 (2d Cir. 1995); see also United States v. Wilson, 493 F. Supp. 2d. 469, 476 (E.D.N.Y. 2006).
+
+In United States v. Sasso, the Second Circuit articulated this test for evaluating the admissibility of mental health condition evidence of a witness:
+
+In assessing the probative value of such evidence, the court should consider such factors as the nature of the psychological problem, the temporal recency or remoteness of the history, and whether the witness suffered from the problem at the time of the events to which she is to testify, so that it may have affected her ability to perceive or to recall events or to testify accurately.
+
+Sasso, 59 F.3d at 347-48 (citing Koh, 985 F.2d at 81 (paranoid and delusional condition probative); id. at 81-82 (paranoid delusions five years earlier not too remote); United States v. Bari, 750 F.2d 1169, 1179 (2d Cir. 1984) (more than 10 years too remote); United States v. Glover, 588 F.2d 876, 878 (2d Cir. 1978) (per curiam) (12 years too remote); Butt, 955 F.2d at
+
+82)) (quotation omitted). *See also United States v. Thompson*, 976 F.2d 666, 671 (11th Cir. 1992) (cross-examination regarding witnesses’ “mental condition during the time periods about which they were testifying” is appropriate since those “records [a]re highly probative of the witnesses’ credibility (citing *United States v.* [REDACTED], 698 F.2d 1154 (11th Cir. 1983); *United States v. Partin*, 493 F.2d 750 (5th Cir. 1974)))). Applying *Sasso*, Dr. [REDACTED] opinions are relevant and admissible.
+
+The standard for relevance is “very low,” *United States v. Litvak*, 808 F.3d 160, 190 (2d Cir. 2015) (reversing conviction based on district court’s erroneous conclusion that defendant’s expert evidence was irrelevant); *United States v.* [REDACTED], 692 F.3d 235, 246 (2d Cir. 2012) (explaining that Rule 401 prescribes a “very low standard”), and the definition of relevance is “very broad,” *United States v. Certified Envtl. Servs., Inc.*, 753 F.3d 72, 90 (2d Cir. 2014). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. “To be relevant, evidence need not be sufficient by itself to prove a fact in issue, much less to prove it beyond a reasonable doubt.” *United States v. Abu-Jihaad*, 630 F.3d 102, 132 (2d Cir. 2010). “[U]nless an exception applies, all ‘relevant evidence is admissible.’” [REDACTED], 692 F.3d at 246. Under the “very broad” definition and “very low” standard of relevance, all of Dr. [REDACTED] opinions are admissible.
+
+The government first disputes the relevance of [REDACTED]
+
+[REDACTED]  
+[REDACTED]  
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED] Of course, the government does not get to decide what evidence is relevant, what relevant evidence Ms. Maxwell admits, or how Ms. Maxwell exercises her constitutional rights to present a defense and to confrontation. If evidence is relevant, the government does not get to dictate the terms of its admission, even if other evidence is “arguably more relevant.” *See* [REDACTED], 692 F.3d at 246 (“[U]nless an exception applies, all ‘relevant evidence is admissible.’” (quoting Fed. R. Evid. 402)).
+
+And the evidence is surely relevant. [REDACTED]
+
+[REDACTED]  
+[REDACTED] [REDACTED] [REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+[REDACTED]
+
+---
+
+[REDACTED]
+
+2.
+
+"A witness's credibility may always be attacked by showing that his or her capacity to observe, remember, or narrate is impaired. Consequently, the witness's capacity at the time of the event, as well as at the time of trial, is significant." 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 607.05[1] ( M. McLaughlin ed., 2d ed. 2009). As the Second Circuit recognized in United States v. DiPaolo,"[i]t is, of course, within the proper scope of cross-examination to determine whether a witness was under the influence of drugs or narcotics or alcohol at the time of observation of events in dispute." United States v. DiPaolo, 804 F.2d 225, 229 (2d Cir. 1986); accord Wilson v. United States, 232 U.S. 563, 568 (1914) (morphine addiction at time of trial has "material bearing upon [a person's] reliability as a witness"); United States v. 583 F.3d 1265, 1271-72 (10th Cir. 2009) (use of illegal drugs at time of alleged crime and at time of trial relevant to credibility and capacity as a witness); United States v. , 213 F.3d 1253, 1261 (10th Cir. 2000) (use of prescription drugs relevant because drug use affects "memory, perception, or comprehension"); United States v. Sampol, 636 F.2d 621, 666 (D.C. Cir. 1980) ("We have recognized that it is proper to explore the drug addiction of a witness in order to attack his credibility and capacity to observe the events in question."); United States v. Banks, 520 F.2d 627, 631 (7th Cir. 1975) (a judge may not forbid "inquiry into an issue such as the narcotics use during trial of an important eye-witness and central participant in the transaction at issue. Once a proper foundation has been established, through, for example, a showing of reasonably contemporaneous drug use, the issue is open for inquiry. The jury may not properly be deprived of this relevant evidence of possible inability to recollect and relate."); United States v. Pickard, 211 F. Supp. 2d 1287, 1292-93 (D. Kan. 2002) ("[A] witness' prior drug use may be admitted to show the effect of the drug use on the witness' memory or recollection of events.").
+
+The decision in *United States v. [REDACTED]* is instructive. In that case—which concerned an alleged firearm sale in 2008—evidence showed the CI had a significant history of drug use dating to 2000. 583 F.3d at 1271. Records revealed a history of using opioids, alcohol, cannabis, benzodiazepine, Valium, Klonipin, Darvocet, and hydrocodone. *Id.* at 1271-72. The district court, however, forbade the defendant from cross-examining the CI on his drug use. The Court of Appeals reversed, explaining that
+
+[i]llegal drug use does not merely bear on the CI’s veracity but also on his capacity as a witness. . . . Extensive drug use since 2000 suggests that the CI could have been under the influence at the time of the alleged firearm sale. Moreover, if the witness was under the influence of drugs or alcohol at the time he testifies, this condition is provable, on cross or by extrinsic evidence, to impeach. Had [REDACTED] known that the CI had much more than “a little bit” of a drug problem, he certainly would have explored whether the CI was using drugs at the time of the alleged sale or at the time of trial.
+
+*Id.* at 1272 (citing *United States v. Crosby*, 462 F.2d 1201, 1203 (D.C. Cir. 1972); 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 607.05[1] ([REDACTED] M. McLaughlin ed., 2d ed. 2009); Kenneth S. Broun, McCormick on Evidence § 44 (6th ed. 2006)) (cleaned up).
+
+This Court should adhere to *DiPaolo* and [REDACTED] and reject the government’s attempt to preclude Ms. Maxwell from what is, “of course,” proper cross-examination. *DiPaolo*, 804 F.2d at 229; see [REDACTED], 583 F.3d at 1272.
+
+# 3. Dr. opinions are not unfairly prejudicial under Rule 403.
+
+The government's Rule 403 argument is easily resolved. As the government well knows—and as it likes regularly to remind criminal defendants—just because evidence is prejudicial to a case or defense does not mean it is unfairly prejudicial. United States v. Schaffer, 851 F.3d 166, 182 (2d Cir. 2017) ("[T]the fact that evidence `may be highly prejudicial' does not necessarily mean that it is 'unfairly prejudicial."). There is significant probative value to Dr. opinions. And the risk of unfair prejudice is minimal, and certainly not enough to substantially outweigh the probative value of the opinions. ME, 583 F.3d at 1275 ("The probative value [of mental health condition evidence] was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."). Dr.. will not engage in name-calling or shaming, and neither will Ms. Maxwell. "This is not a case in which a party attempts to unfairly malign a witness for distant and relatively minor mental health issues" or unrelated and irrelevant drug use. See id. If the Court is concerned about any unfair prejudice, that concern can be addressed with a limiting instruction.
+
+# 4. Rule 703 does not bar Dr. from testifying.
+
+The government makes a last-ditch effort to preclude Dr.. from testifying by invoking Rule 703. That Rule recognizes the reality that expert witnesses form their opinions in reliance on evidence that might not itself be independently admissible—e.g., hearsay.
+
+Here, however, Rule 703 poses no barrier to Dr. testimony, because the bases of his opinion are independently admissible and, even if they weren't, their probative value substantially outweighs their prejudicial effect.
+
+Federal Rule of Evidence 703 says:
+
+An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
+
+Fed. R. Evid. 703.
+
+There is no dispute that experts in Dr. field reasonably rely on the kinds of facts and data he relied on in forming his opinions. These facts and data, moreover, are otherwise admissible.
+
+Dr.. relied primarily on an interview with statements to Dr.. are not inadmissible hearsay.
+
+admissible because they are statements made for medical diagnosis under Rule 803(4) and because they are statements of then-existing mental, emotional, or physical condition under Rule 803(3). Offered not for their truth, the statements are admissible for their effect on Dr.. in forming his opinions. They are also admissible as prior inconsistent statements under Rule 613.
+
+Dr.. also relied on are admissible under Rule 801(d)(1)(A).
+
+The probative value of the bases of Dr. opinions substantially outweighs any prejudice. There is nothing unfair about telling the jury of the various admissions has made and the various inconsistencies in her allegations. Of course, will be testifying, so the government can examine her about all these issues as well. And the evidence is not being offered to shame her. See , 583 F.3d at 1275 ("This is not a case in which a party attempts to unfairly malign a witness for distant and relatively minor mental health issues."). It is being offered so the jury can have a complete picture of her credibility, and any potential prejudice can be cured by a limiting instruction.
+
+These are just some of the many reasons why Rule 703 does not bar Dr. testimony. To the extent the government has other objections, it can raise those objections in context during trial.
+
+### 5. Dr. "fact testimony."
+
+As Dr. report makes clear, never disclosed any abuse by Mr. Epstein or Ms. Maxwell. Then, when interviewed for 6 1 hours by Dr.., claimed to have been abused by Mr. Epstein, but she did not allege any abuse or improper conduct by Ms. Maxwell. This evidence is admissible as a prior inconsistent statement.
+
+To the extent the government claims failure ever to implicate Ms. Maxwell to or Dr.. is not "inconsistent enough," that argument goes to weight, not admissibility. See R.B. Ventures, Dd. v. Shane, No. 91 CIV. 5678 (CSH), 2000 WL 520615, at \*5 (S.D.N.Y. May 1, 2000) (extent of inconsistency "may prove useful grist for the crossexaminer's mill," but the argument "go[es] to the weight of this opinion testimony and not its admissibility").
+
+Indeed, this Court has already ruled that Ms. Maxwell can admit evidence that prior statements to law enforcement did not implicate Ms. Maxwell. TR 11/1/2021, p 27. The same logic applies here.
+
+The government says Ms. Maxwell "does not need Dr. testimony to inform the jury that has not always disclosed the defendant's role in Epstein's abuse." Mot. at 18. "Need," of course, is not the test for admissibility, and the government does not get to limit Ms. Maxwell's evidence only that which the government claims she "needs." See M, 692
+
+F.3d at 246 ("[U]nless an exception applies, all `relevant evidence is admissible."' (quoting Fed. R. Evid. 402)).
+
+Finally, the nature and timing of disclosures are also admissible in response to Dr. Rocchio's testimony about delayed and partial disclosure.
+
+## 6. Conclusion.
+
+Cross-examination is "the principal means by which the believability of a witness and the truth of [her] testimony are tested." 415 U.S. at 316. And in our adversarial system, the government cannot shield its case from being tested. A defendant has a constitutional right to present a defense. Crane, 476 U.S. at 690.
+
+The government's case significantly depends on the credibility off, since no physical evidence corroborates her allegations and because she is the named victim for several of the counts. Where, as here, the defendant intends to cross-examine an essential government witness, one who "provid[es] an essential link in the prosecution's case. the importance of full cross-examination to disclose possible bias is necessarily increased." v. Wainwright, 634 F.24 272, 275 (5th Cir. 1981). And as the Tenth Circuit has recognized in reversing a conviction because the defendant was deprived of the opportunity to question a government witness about his mental health conditions and drug use, "[i]t is just as reasonable that a jury be informed of a witness's mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing." , 583 F.3d at 1275.
+
+## II. Professor Gershman's Testimony is Admissible.
+
+The government wrongly asserts that Professor Gershman's testimony "is relevant only to the defense theories that the Court has excluded." Mot. at 20. In ruling on the motions in limine, the Court expressly declined to prohibit Ms. Maxwell from challenging the consistency and reliability of her accusers' stories. TR 11/1/2021, pp 27-30. Professor Gershman's testimony is relevant to that inquiry.
+
+How the accusers came to tell the stories that they are now telling is relevant to their credibility. The government has allowed the testimony of the accusers to be comipted by a group of civil lawyers who have collaborated, for years, in the pursuit of Mr. Epstein. These lawyers have shared information among themselves and their joint clients, developing a "play book" about what should be said to make a claim against Mr. Epstein or the Epstein Victim Compensation Fund. The accusers' stories have changed dramatically over time and none of these changes has been challenged by the government. Instead, the government either ignores the changes or offers excuses to be adopted by the accusers as the reason for the change.
+
+Moreover, avenues of investigation helpful to Ms. Maxwell have been ignored by the government. For example, the government has refused to obtain the accusers' submissions to the Epstein Victim Compensation Fund and even now is resisting defense efforts to obtain the information. The government refused to obtain except for a few pages describing when she first met Epstein months before she claims to have met Ms. Maxwell.
+
+When witnesses begin to say favorable things about Ms. Maxwell in interviews with the government the interviews are abruptly terminated. When witnesses do not support the government's theory they are challenged or cautioned to retain counsel. Professor Gershman, whose credentials and opinions the government does not challenge, has reliable and relevant opinions to offer on these issues, which do not contravene this Court's rulings on the motions in limine.
+
+Finally, there can be no objection to any of Professor Gershman's opinions if the government "puts the thoroughness of the investigation into issue...." See TR 11/1/2021, p 29.
+
+#### III. This Court Should Reject the Government's Remaining Arguments.
+
+The government objects to the adequacy of the notice Ms. Maxwell has provided with regard to Robert Kelso, John =, Gerald LaPorte, and Jennifer Naso. Mot. at 21-26. Really only two responses are in order.
+
+Ms. Maxwell's notices are as thorough as the government's notices were, so the government can hardly complain about being in the dark. But if this Court concludes otherwise, the remedy is for Ms. Maxwell to provide additional notice; the remedy is not exclusion.
+
+Moreover, as the government concedes is permissible, Ms. Maxwell has endorsed these witnesses in part out of an abundance of caution and in part because Ms. Maxwell still doesn't know what evidence the government will actually admit at trial. If testimony from these witnesses is not relevant, Ms. Maxwell will not call them. But if the government's evidence makes their testimony relevant, Ms. Maxwell can always provide additional notice if ordered to do so by the Court.
+
+# CONCLUSION
+
+This Court should deny the government's motion.
+
+Dated: November 19, 2021
+
+Respectfully submitted,
+
+s/ Jeffrey S. Pagliuca
+
+Jeffrey S. Pagliuca Laura A. Mennin er HADDON, & 150 East 10th Avenue Denver, CO 80203 Phone: 303-831-7364 P.C.
+
+Christian R. Everdell & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: 212-957-7600
+
+Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 225 Broadway, Suite 715 New York, NY 10007 Phone: 212-243-1100
+
+Attorneys for Ghislaine Maxwell
+
+# Certificate of Service
+
+I hereby certify that on November 19, 2021, I electronically filed the foregoing Ghislaine Maxwell's Response to the Government's Motion to Preclude Expert Testimony of Dr. Ryan M, Bennett Gershman, Robert Kelso, John=, Gerald LaPorte, and Jennifer Naso with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following:
+
+Alison Moe Maurene Comey Andrew Rohrbach Lam Pomerantz U.S. Attorney's Office, SDNY One Saint Andrew's Plaza New York, NY 10007 Alison.moe@usdoj.gov Maurene.comey@usdoj.gov Andrew.Rohrbach@usdoj.gov Lara.Pomerantz@usdoj.gov
+
+s/ Nicole

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