DOJ-OGR-00008188.pdf

Case 1:20-cr-00330-PAE Document 516 Filed 11/21/21 Page 16 of 17 because an expert witness may not "simply transmit . . . hearsay to the jury" or otherwise serve as a vehicle for the factual history of the case. United States v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008); see In re Fosamax, 645 F. Supp. 2d at 192. Testifying as to specific suggestive activities would also likely violate the rule against expert testimony on specific witnesses' credibility. Nimely, 414 F.3d at 398. But in its response brief, the Defense states that "[l]ike Dr. Rocchio, [Dr. Loftus] would be testifying as a 'blind' expert" and so will not testify about any particular witness in this case. Def. Br. at 17. Based on this representation, the Court will admit Dr. Loftus's opinion on the general concepts of suggestive activities and false memory creation. The Defense may on cross-examination ask witnesses about activities or events that the Defense believes led to false memories. And the jury may then determine whether the general concepts in Dr. Loftus's opinions are applicable to the evidence before it. Last, the Court clarifies that this decision as to Dr. Loftus is by no means an invitation for memory experts to be admitted in every future case. As other federal courts have observed, expert testimony of this type is relevant only in unusual circumstances. See Carter, 410 F.3d at 950; United States v. Redwood, 216 F. Supp. 3d 890, 899 (N.D. Ill. 2016) ("While in unique circumstances expert testimony regarding memory and perception may be warranted, this is not one of those cases."); Heine, 2017 WL 5260784, at *2 (explaining that other courts have excluded memory experts "in ordinary cases"). The Court finds this case to be one such unusual circumstance, both because of the long period of time that has elapsed since the charged conduct and because of the public attention that conduct has received. Important, too, is that the Court has admitted the Government's expert, Dr. Rocchio, who expects to testify on delayed disclosure 16 DOJ-OGR-00008188