DOJ-OGR-00005977.pdf

Case 1:20-cr-00330-PAE Document 398 Filed 10/29/21 Page 22 of 52 In any case, the newly discovered material doesn't help the government's cause. Exhibit A (literally) to the government's response is a journal article describing "grooming" as a "construct." Resp, Ex. A, Natalie Bennett & William O'Donohue, The Construct of Grooming in Child Sexual Abuse, 23 J. Child Sexual Abuse 957, 974 (2014). (In fact, Ms. Maxwell cited this article in her motion.) Far from supporting Rocchio's conclusions, the article proves their unreliability: There have been claims that some child molesters engage in a "seduction stage" prior to committing abuse. These behaviors, commonly known as "grooming," are understood as methods child molesters use to gain access to and prepare future victims to be compliant with abuse. However, there is a lack of consensus regarding exactly what this process entails and how it is clearly distinguished from normal adult-child interactions. . . . Furthermore, there are no methods of known psychometrics to validly assess grooming. Gov't Resp., Ex. A, p 2 (emphasis added). The article concludes: Currently there is no consensus regarding how to define grooming. In addition, there is no valid method to assess whether grooming has occurred or is occurring. The field possesses an insufficient amount of knowledge about key issues such as the interrater reliability of these judgments or the error rates of these judgments including the frequency of false negatives or false positives. Thus currently it appears that grooming is not a construct that ought to be used in forensic settings as it does not meet some of the criteria in the Daubert standard. . . . Right now it does not appear to be the case that there are "reliable principles and methods" to define and detect grooming. Id. at 19 (emphasis added). Because the government cannot justify admission of Rocchio's testimony based on its prejudicially late disclosures, and because those disclosures don't support Rocchio's views, and underscore that "grooming" is not a scientific principle based on psychometric testing, this Court should preclude Rocchio from testifying. And as explained below, the government's other defenses of Rocchio fall far short of what is required by Rules 401, 402, 403, 404, 702, and 704. 16 DOJ-OGR-00005977