DOJ-OGR-00008120.pdf

--- Page 1 --- The extracted text is: **Header:** Case 1:20-cr-00330-PAE Document 509-1 Filed 11/24/21 Page 9 of 10 **Main Text:** First, the defendant tries to sneak in a claim that Minor Victim-4's trial testimony will be inconsistent with her statements to Dr. Hall. If the witness said things to Dr. Hall that satisfy all the prerequisites for admitting extrinsic evidence of prior inconsistent statements, then perhaps Dr. Hall could testify about those statements. Unless, however, Dr. Hall was in the room during therapy sessions, it remains hearsay as to him. Second, the Court's ruling that Minor Victim-4 can be cross-examined on her prior inconsistent statements to law enforcement (see Opp. 16) does not help the defendant. What the Court ruled was that the witness could be impeached on the grounds that she "changed her story to law enforcement . . . [p]rovided that the rules for admitting prior inconsistent statements are satisfied." (11/1/2021 Tr. at 27-28). The Government agrees—such testimony is admissible "provided that the rules for admitting prior inconsistent statements are satisfied." And the Government has already shown that Minor Victim-4 has not "changed her story" relative to her interview with Dr. Hall, because there is no reason that story would have included the defendant's crimes. (Mot. 17-18). Because the defendant offers no contrary argument, she cannot rely on this basis to call Dr. Hall. Third, the defendant claims that she does not have to make such a showing of inconsistency in order to admit a prior inconsistent statement. (Opp. 16). That is obvious legal error. As the Second Circuit has quite emphatically explained, although two statements do not have to be directly contrary to be inconsistent, the district court must find some meaningful inconsistency before the rule applies. United States v. Trzaska, 111 F.3d 1019, 1024–25 (2d Cir. **Footer:** DOJ-OGR-00008120