EFTA00070837.pdf

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. PARK DIETZ AND DR. ELIZABETH LOFTUS DAMIAN WILLIAMS United States Attorney for the Southern District of New York One St. Andrew's Plaza New York, New York 10007 Assistant United States Attorneys Of Counsel EFTA00070837  TABLE OF CONTENTS PRELIMINARY STATEMENT 1 I. THE COURT SHOULD PRECLUDE CERTAIN OPINIONS FROM DR. DIETZ 1 A. Background 1 B. Legal Standard 5 C. Discussion 8 I. Response to the Opinions of Dr. Rocchio 8 2. Opinions as to Hindsight Bias 11 3. Opinions as to the "Halo Effect" 14 4. Opinions as to "Pathways to False Allegations of Sexual Assault" 17 5. Opinions Regarding the Credibility of Witnesses 21 6. Opinions Regarding Post-Traumatic Stress Symptoms 22 II. CERTAIN ASPECTS OF THE PROPOSED EXPERT TESTIMONY OF DR. ELIZABETH LOFTUS SHOULD BE PRECLUDED 25 A. Background 25 B. Applicable Law 26 C. Discussion 30 I. Unobjectionable Opinions by Dr. Loftus 30 2. Commonsense Principles Within the Ken of the Jury 30 3. Opinions Bearing on Witness Credibility and Demeanor 31 4. Factual Narratives About the Case 32 5. Opinions as to False Memory Formation 33 III. IF DEFENSE CHALLENGES TO DR. ROCCHIO ARE ACCEPTED, THE DEFENSE EXPERTS SHOULD BE EXCLUDED 35 CONCLUSION 37 EFTA00070838  TABLE OF AUTHORITIES Cases Adams v. Laboratory Corp. of Am., 760 F.3d 1322 (11th Cir. 2014) 12 Amorgianos v. Nat'l R.R. Pass. Corp., 303 F.3d 256 (2d Cir. 2002) 7 Barnette v. United States, No. 12 Civ. 327, 2021 WL 949848 (W.D.N.C. March 12, 2021) 17 Boucher v. US. Suzuki Motor Corp., 73 F.3d 18 (2d Cir. 1996) 8, 23 Bourjaior v. United States, 483 U.S. 171 (1987) 6 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) passim deWit v. UPS Ground Freight, Inc., No. 16 Civ. 36, 2017 WL 5905575 (N.D. Fl. Jul. 25, 2017) 14 Doe by and through Pike v. Pike, 405 F. Supp. 3d 243 (D. Mass. 2019) 13 Doe by and through Pike v. Pike, No. 17 Civ. 40021 (D. Mass.) 13 Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) 6 Highland Capital Mgmt. v. Schneider, 551 F. Supp. 2d 173 (S.D.N.Y. 2008) 8 Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992) 8, 12, 22, 32 Island Intellectual Prop. LLC v. Deutsche Bank AG, No. 09 Civ. 2675 (KBF), 2012 WL 526722 (S.D.N.Y. Feb. 14, 2012) 7, 17, 33 Kumho Tire Co., Inc. v. Carmichael, 526 U.S. 137 (1999) 6, 8 Lam v. City of San Jose, No. 14 Civ. 877 (PSG), 2015 WL 6954967 (N.D. Cal. Nov. 10, 2015)28 LaSalle Bank Nat'l ASS)! v. CIBC Inc., No. 08 Civ. 8426 (WHP) (HBP), 2012 WL 466785 (S.D.N.Y. Feb. 14, 2012) 8 LVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A., 209 F. Supp. 3d 612 (S.D.N.Y. 2016)8, 21, 23 Marx & Co. v. Diners Club, Inc., 550 F.2d 505 (2d Cir. 1977) 8 Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005) 6, 19 P.S. ex rel. Nelson v. The Farm, Inc., 658 F. Supp. 2d 1281 (D. Kan. 2009) 24 R.D. v. Shohola, Inc., 16 Civ. 01056, 2019 WL 6053223 (M.D. Pa. Nov. 15, 2019) 28, 29, 32 United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973) 27 United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) 18 United States v. Carter, 410 F.3d 942 (7th Cir. 2005) 26 United States v. Curry, 977 F.2d 1042 (7th Cir. 1992) 26, 27 United States v. Duncan, 42 F.3d 97 (2d Cir. 1994) 8 United States v. George, 975 F.2d 1431 (9th Cir. 1992) 28 United States v. Heine, No. 15 Cr. 238 (SI), 2017 WL 5260784 (D. Or. Nov. 13, 2017).27, 28, 29 United States v. Labansat, 94 F.3d 527 (9th Cir. 1996) 26, 30 United States v. Libby, 461 F. Supp. 2d 3 (D.D.C. 2006) passim United States v. Lumpkin, 192 F.3d 280 (2d Cir. 1999) 20,21,22,31 United States v. Mathis, 264 F.3d 321 (3d Cir. 2001) 29 United States v. Moore, 798 F.2d 1308 (5th Cir. 1986) 27, 28 United States v. Mulder, 273 F.3d 91 (2d Cir. 2001) 12, 19 United States v. Mustaga, 753 F. App'x 22 (2d Cir. 2018) (summary order) 15 United States v. Randall, No. 19 Cr. 131 (PAE) (S.D.N.Y.) 9 United States v. Redwood, 216 F. Supp. 3d 890 (N.D. Ill. 2016) 27 United States v. Seltzer, 794 F.2d 1114 (6th Cir. 1986) 28 EFTA00070839 United States v. Shiraishi, No. 17 Cr. 582 (JMS) (RLP), 2019 WL 1386365 (D. Haw. Mar. 27, 2019) 27, 28, 29 United States v. Smith, 148 F. App'x 867 (11th Cir. 2005) 26 United States v. Stroming, 838 F. App'x 624 (2d Cir. 2021) (summary order) 15 United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) 15 United States v. Valle, No. 12 Cr. 847 (PGG), 2013 WL 440687 (S.D.N.Y. Feb. 2, 2013) 3 United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983) 16 United States v. Welch, 368 F.3d 970 (7th Cir. 2004) 30 United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) 6, 8 Yates v. State, 171 S.W.3d 215 (Tex. App. 2005) 17 Other Authorities Bennett & O'Donohue, "The Construct of Grooming in Child Sexual Abuse, 23 J. Child Sexual Abuse 957 (2014) 10 Craven et al., "Sexual grooming of children," 12 J. Sexual Aggression 287 (2006) 10 Diamond et al., "The Truth is Out There: Accuracy in Recall of Verifiable Real-World Events," 31 Psychological Science 1544 (2020) 34 Dworkin et al., "PTSD in the Year Following Sexual Assault," Trauma, Violence & Abuse 1, 11 (2021) 24 Park Dietz, "Grooming and Seduction", 33 J. Interpersonal Violence 28 (2018) 24 R. Schmechel, T. O'Toole, C. Easterly, & E. Loftus, Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J. 177-214 (2006) 34 Ruin Fed R. Evid. 70 passim Fed R. Evid. 704(a) 7 Fed. R. Crim. P. 26.2 25 Fed. R. Evid. 401 7 Fed. R. Evid. 403 7, 18, 29, 32 Fed. R. Evid. 703 33 Fed. R. Evid. 704 adv. comm. n. 8 EFTA00070840  PRELIMINARY STATEMENT The Government respectfully moves for the Court to preclude certain opinions from Dr. Park Dietz and Dr. Elizabeth Loftus. Rather than focus narrowly on reliable opinions that would be relevant to issues in this case, the defendant proposes to have Dr. Dietz and Dr. Loftus testify broadly about a wide variety of topics, from testimony about various psychological disorders to testimony regarding the generation of false memories in laboratory settings, that are not relevant to the issues in this case. Many of those opinions are also unreliable, squarely within the ken of the average juror, or would invade the province of the Court and the jury if offered. To the extent Dr. Rocchio is permitted to testify on her opinions, the Court should admit reliable opinions on the same topics by defense experts. But the defense's expert notice for Dr. Dietz and Dr. Loftus is far more expansive, and some of the defense's responsive opinions are not reliable. The Court should preclude many of their opinions. I. THE COURT SHOULD PRECLUDE CERTAIN OPINIONS FROM DR. DIETZ A. Background As described in the defense expert notice, attached as Exhibit A, the defense offers the opinions of Dr. Dietz, an expert psychiatrist, both in response to the Government's expert Dr. Lisa Rocchio and on several other subjects. As to Dr. Rocchio's opinions, Dr. Dietz offers the following responsive opinions: • The word "grooming" "imputes motive and intent without adequate evidence of either," including to the defendant. (Ex. A at 3). • "[G]rooming has no consistent definition, and concerns have been raised that there is no valid method to assess whether grooming has occurred or is occurring." (Id. at 4 (citation and internal quotation marks omitted). • "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 individuals. EFTA00070841  Such judgments have no known error rate and cannot be tested, verified, or reproduced." • "There is no generally accepted theory of grooming by third parties," and it is not accepted in the relevant community. "[I]t has not and cannot be tested; and there is no known or potential rate of error." • The notion that "individuals with particular vulnerabilities are often targeted by perpetrators of sexual abuse" is "a commonly accepted bit of clinical lore" that is "not based on empirical data." As explained below, the Government agrees that Dr. Dietz may offer an opinion on the difficulty of accurately determining whether an act constitutes grooming, in response to Dr. Rocchio. Although his remaining opinions purport to respond to Dr. Rocchio, however, they are themselves unreliable or invade the province of the jury, and should be precluded. Beyond his response to Dr. Rocchio's opinions, Dr. Dietz offers several additional opinions, to which the Government objects as discussed herein. As to "hindsight bias," Dr. Dietz opines: • Hindsight bias, or "the tendency to overestimate how predictable or foreseeable an event is after being informed about the outcome of an event," exists and has been found in various experiments. (Ex. A at 4-5). • Hindsight bias "affects legal judgments." (Id. at 5). • Awareness of the impact of 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." (Id.). As set forth below, the Government objects that these opinions are within the ken of the jury and invade the province of the jury and the Court. Dr. Dietz also offers the following opinions as to the "Halo effect": • 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." (Id.). 2 EFTA00070842  • "Like many people who achieve great power and wealth, JeffIre]y Epstein exploited the Halo effect to surround himself with people who would serve his needs." (Id. at 6). • Epstein's personality 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." (Id. at 7).1 As set forth below, the Government objects that these opinions are an irrelevant invitation to July nullification and an improper vehicle for introducing a factual narrative. Dr. Dietz offers a lengthy series of objectionable opinions as to "Multiple Pathways to False Sex Assault Allegations." (Id. at 7). In relevant part, Dr. Dietz opines: • "False allegations of sexual assault do occur, and there are multiple pathways to these false allegations of sexual assault." (Id. at 7). He also lists these "pathways," in terms at times "drawn nearly verbatim" from a 2012 article in a forensic psychology journal, along with conjectures of ways in which these mental conditions or circumstances could hypothetically lead to false claims of sexual assault, including the following examples: • "Lying": "Often, humans lie because of what they perceive as the favorable consequences for lying; for sexual assault these consequences could be . . . the severe negative consequences that the alleged perpetrator experiences ... secondary gain from victim status ... excusing behaviors or characteristics of the alleged victim (e.g., sexual activity, pregnancy, sexually transmitted diseases) [or] financial gain." (Ex. A at 7). • "Implied Consent": "A false allegation can arise when it was reasonable to believe consent was given but the alleged victim falsely believes that it was not." (Id. at 7-8). 1 The disclosure also notes that "Dr. Dietz is also prepared to address Jeffrey Epstein's sexual behavior should it prove relevant," id. at 7, but as he has not disclosed what opinions he may have about Epstein's sexual behavior, he has not provided adequate notice as to them and the Government does not address them further herein except to note that it will object if he attempts to offer them. See, e.g., 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 testify is insufficient; rather, the summary must reveal the expert's actual opinions."). 3 EFTA00070843  • "False Memory": Dr. Dietz cites principally to the work of Dr. Loftus in describing the existence of false memories. (Id. at 8). • "Intoxication": "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 . . . 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." (Id.). • "Antisocial Personality Disorder": "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." (Id.). • "Borderline Personality Disorder": "[A]n individual with BPD may use a sexual assault allegation as a way of impacting a third part for some desired outcome." (Id. at 8-9). • "Histrionic 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." (Id. at 9). • "Delirium": "Relevant to this pathway are the perceptual disturbances that may be present, including misinterpretations, illusions, or even hallucinations." (Id.). • "Psychotic Disorders": "[D]elusions may lead a person to claim adamantly that sexual relations or events occurred that may be impossible or highly improbable." (Id. at 9). • "Dissociation": "[I]t 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." (Id. at 10). • "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." (Id.). As set forth below, the Government objects that these opinions invade the province of the jury, are within the ken of the jury, are unhelpful and prejudicial, are unreliable, and lack fit to any issue to be tried in this case. Dr. Dietz also offers several opinions generally related to the evaluation of witness credibility: 4 EFTA00070844  • "Changes in the core details of the allegation are often used by professionals as indices in determining the credibility of a victim's claims." (Ex. A at 10). • "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." (Id. at 11). • "Individuals who have been sexually assaulted have higher rates of mental disorders than individuals who have not been sexually assaulted," and such disorders "can affect memory and recall, requiring assessment on a case-by-case basis." (Id. at 11). As set forth below, the Government objects that these opinions invade the province of the jury and are prejudicial. Finally, Dr. Dietz offers the following opinions regarding post-traumatic stress disorder ("PTSD"): • Significant portions of victims following sexual assault exhibit "[v]arying degrees of post- traumatic stress symptomatology." (Ex. A at 11). • Post-traumatic stress symptoms include (but are not limited to) "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 events(s)." (Id.) • Individuals with this subset of post-traumatic stress 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." (Id.). As discussed below, the Government objects that these opinions are either irrelevant or—to the extent intended to be applied to the context of this case—unreliable. B. Legal Standard Rule 702 of the Federal Rules of Evidence provides: 5 EFTA00070845  If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The party that proffers the testimony bears the burden of showing that it is admissible by a preponderance of the evidence. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 & n.I 0 (1993) (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)). A district court's exclusion of expert testimony will be affirmed unless it constitutes an abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). A threshold issue is, of course, whether the witness "is qualified to be an `expert' in the subject matter at issue. See Nimely v. City of New York, 414 F.3d 381, 396 n.11 (2d Cir. 2005). Testimony from a qualified expert is admissible only if the trial court determines that it is both relevant and reliable. Daubert, 509 U.S. at 589-90; see Kumho Tire Co., Inc. v. Carmichael, 526 U.S. 137 (1999). Specifically, in Daubert, the Supreme Court held that the Federal Rules of Evidence "assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." 509 U.S. at 597. "Daubert applies to both defense and government experts." United States v. Yousef, 327 F.3d 56, 148 (2d Cir. 2003). Applying Rule 702, the Court must determine whether the expert's reasoning and methodology underlying his testimony is valid, and whether that reasoning or methodology was applied reliably to the facts, so as to be relevant and helpful to the jury. See Kumho Tire, 526 U.S. 137. The reliability inquiry is flexible and "must be tied to the facts of a particular case." Id. at 6 EFTA00070846 150 (citations and internal quotation marks omitted). The Second Circuit has emphasized that "it is critical that an expert's analysis be reliable at every step." Amorgianos v. Nat'l R.R. Pass. Corp., 303 F.3d 256, 267 (2d Cir. 2002). "In deciding whether a step in an expert's analysis is unreliable, the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand." Id. Minor flaws with an otherwise reliable expert opinion will not bar admission of that evidence; however, the Court should exclude the expert evidence "if the flaw is large enough that the expert lacks `good grounds' for his or her conclusions." Id. (quotation marks omitted). 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." Daubed, 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 Intellectual Prop. LLC v. Deutsche Bank AG, No. 09 Civ. 2675 (ICBF), 2012 WL 526722, at *2 (S.D.N.Y. Feb. 14, 2012) (citations omitted). While Federal Rule of Evidence 704(a) provides that "[ajn opinion is not objectionable just because it embraces an 7 EFTA00070847 ultimate issue of fact," the Second Circuit has admonished courts to take care "lest [the expert] be allowed to usurp the function of the judge." Marx & Co. v. Diners Club, Inc., 550 F.2d 505, 511 (2d Cir. 1977). Accordingly, courts must not admit "opinions which would merely tell the jury what result to reach." Hygh v. Jacobs, 961 F.2d 359, 363-64 (2d Cir. 1992) (quoting Fed. R. Evid. 704 advisory committee's note); see also United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) ("When an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attempts to substitute the expert's judgment for the jury's."). Nor may an expert opine as to a party's state of mind, credibility, intent, or motive. See LaSalle Bank Nat'l Ass 'n v. CIBC Inc., No. 08 Civ. 8426 (WHP) (HBP), 2012 WL 466785, at *7 (S.D.N.Y. Feb. 14, 2012) (collecting cases); see, e.g., Highland Capital Mgmt. v. Schneider, 551 F. Supp. 2d 173, 182-183, 187 (S.D.N.Y. 2008). Finally, expert opinion should not be offered where it does not fit the facts of the case. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non- helpful." Daubers, 509 U.S. at 591 (internal quotation marks omitted); cf. Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) ("expert testimony should be excluded if it is . . . [inter alia] in essence an 'apples and oranges comparison' (quoting Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir. I 984)));see also LVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A., 209 F. Supp. 3d 612, 642 (S.D.N.Y. 2016) (expert opinion inadmissible where it is "a mismatch for the facts" of the case). C. Discussion 1. Response to the Opinions of Dr. Rocchio Although some opinions by Dr. Dietz respond to Dr. Rocchio, each opinion must itself be reliable and relevant, as required by Rule 702. See Yousef, 327 F.3d at 148. The Government 8 EFTA00070848 agrees that at least one of these opinions can meet this test: it is "within the range where experts might reasonably differ,"Kumho Tire Co., 526 U.S. at 153, and can be tested through "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." Daubert, 509 U.S. at 595-96 (internal quotation marks omitted). Specifically, the Government agrees that Dr. Dietz can respond to Dr. Rocchio's testimony about grooming behaviors by suggesting that it is difficult to assess whether grooming has occurred. See 2/25/20 Tr. at 36:13-37:14, United States v. Randall, No. 19 Cr. 131 (PAE) (S.D.N.Y.) (explaining that, in such a case, "the jury, not the trial court, should be the one to decide among conflicting experts"). That opinion is only one of those noticed by the defense, however. The defense expert notice includes four other sets of opinions that supposedly respond to Dr. Rocchio but do not satisfy the Daubert standard. First, the expert notice—which closely parallels the defense's Daubert motion—improperly discusses the facts of this particular case and comments on various legal documents, even though it offers no basis whatsoever to conclude that Dr. Dietz has any legal expertise or has reliably applied any expertise to the facts of this case. In particular, the notice states that Dr. Dietz will opine that Dr. Rocchio's opinion on grooming "carries the risk of imputing motive and intent to the Defendant," (Ex. A at 3), 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 "recruited and grooming minors to provide sexualized massages for Mr. Epstein," (id. at 4). These opinions, while potentially relevant to the Court's consideration of a Daubert motion, are not properly put before a jury. 9 EFTA00070849  Second, certain of Dr. Dietz's opinions about grooming are not themselves reliable or invade the province of the jury. In particular, it 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. (Ex. A at 3). That is, if the behaviors lack the requisite motive and intent, they are not grooming behaviors. If Dr. Dietz's point is that determining motive and intent is for the factfinder (id.), the Government agrees—and Dr. Dietz should not be permitted to testify that grooming behaviors "impute[] motive and intent without adequate evidence." (Id.) The adequacy of the evidence is a question for the jury. Dr. Rocchio's testimony will inform the jury about the existence of grooming behaviors, but leave to the jury whether such behaviors occurred in this case. Dr. Dietz is free to tell the jury that, in his view, assessing whether grooming occurred is difficult and subjective. (Id. at 4). But it invades the province of the jury to go a further step and tell the jury that it lacks evidence to impute motive or intent. Third, Dr. Dietz proposes to opine that the notion that perpetrators target vulnerable victims is "a commonly accepted bit of clinical lore" unsupported by any empirical data and cannot be verified. (Ex. A at 4). This claim is itself unsupported by any evidence. It is also wrong. For instance, an article cited by Dr. Dietz describes a literature review of sexual abuse involving teachers, which identified "factors that make a child vulnerable to educator sexual abuse, such as problems at home with parents, lack of confidence, and participation in other risky behavior." (See Bennett & O'Donohue, "The Construct of Grooming in Child Sexual Abuse, 23 J. Child Sexual Abuse 957, 964 (2014), Dkt. No. 397 Ex. A; Ex A at 4 (citing the same)). Other scholars have recognized that "[g]rooming the child begins with recognizing a vulnerable child," such as children I0 EFTA00070850 with "a poor relationship with their parents," who "do not have many friends," or who "have already been victimized." (Craven et al., "Sexual grooming of children," 12 J. Sexual Aggression 287, 292 (2006), Dkt. No. 397 Ex. A (citations omitted)). Dr. Rocchio's clinical experience is supported by the academic literature, in which perpetrators' targeting of vulnerable victims is well established. Dr. Dietz must do more to show the reliability of his view than simply call this literature "clinical lore" and complain about the lack of data. Fourth, Dr. Dietz states that "no authority ... support[s] a theory of grooming-by-proxy." (Ex. A at 4). To the extent that Dr. Dietz is pointing to the fact that the term "grooming-by- proxy"—a term that Dr. Rocchio does not employ and that the defense has attempted to inject into the case-is not supported by the literature, that terminological claim is of course irrelevant to any issue. To the extent that Dr. Dietz purports to claim that there is no authority supporting the notion that a perpetrator can groom a victim for the purpose of making the victim engage in sexual activities with others, this claim is patently unreliable, as Dr. Rocchio will explain at the Dauber! hearing; there is in fact ample literature on the pimp-prostitute relationship and other instances in which third parties groom an individual for the benefit of someone else. And if the Court excludes Dr. Rocchio's opinion on this issue, Dr. Dietz's opinion is irrelevant. The Government acknowledges that Dr. Dietz can offer reliable, relevant opinions in response to Dr. Rocchio. But Dr. Dietz's proposed opinions include legal argument, opinions that invade the province of the jury, and opinions that are themselves unreliable. Those should be excluded. 2. Opinions as to Hindsight Bias Dr. Dietz's opinions that hindsight bias exists and should "temper" conclusions about whether to impute knowledge to an individual (Ex. A at 5) do not convey any relevant information 11 EFTA00070851 beyond the ken of the average juror and are not helpful to the jury. Instead, they are a virtually unprecedented attempt to psychoanalyze the jurors and to supplant both their role as judges of the facts and the Court's role in instructing them. The only possible relevance of hindsight bias in this case is the supposed bias of the jurors themselves. This is not a case where it matters whether the opinion of a witness or a party at some point suffered from hindsight bias. The primary purpose of the testimony is to convince the jurors to "temper" any conclusion that the defendant formed the requisite intent because the jurors might be suffering from hindsight bias. (Ex. A at 5). Of course a factfinder should not confuse the benefit of hindsight with what was known at the time. But this commonplace truth does not need testimony from a psychiatric expert. The concept of hindsight bias is well within the ken of the average juror. "Hindsight bias is a common-sense concept—everyone knows that `hindsight is 20/20."' Adams v. Laboratory Corp. ofAm., 760 F.3d 1322, 1335 (11th Cir. 2014). The prevalence of this common saying shows that jurors plainly understand the ways in which hindsight can bias one's perspective. As such, expert testimony on it is unnecessary and inappropriate. See id. ("[C]ommon-sense concepts are especially appropriate for consideration by a jury."); see also, e.g., United States v. Mulder, 273 F.3d 91, 101 (2d Cir. 2001) ("[T]he district court should not admit testimony that is directed solely to lay matters which a jury is capable of understanding and deciding without the expert's help." (internal quotation marks omitted)). To whatever extent the Court believes further emphasis on this point is helpful, it can give the jury appropriate and neutral instructions to guide its deliberations. What the defense cannot do is skew the jury's deliberations by putting an expert imprimatur on testimony that states, in effect, that the jurors should second-guess their assessments 12 EFTA00070852 of the evidence because they are subject to hindsight bias. This inversion of the courtroom roles— in which a party's witness sits in judgment of the jurors-is prejudicial and usurps the function both of the jurors and of the Court in instructing the jury. See, e.g., Nye!, 961 F.2d at 364 ("Whereas an expert may be uniquely qualified by experience to assist the trier of fact, he is not qualified to compete with the judge in the function of instructing the jury."). If Dr. Dietz's testimony on hindsight bias is helpful to the jury in this case, testimony of this sort would become central to the court system. Every single trial involves a retrospective adjudication. The bulk of trials—civil and criminal—involve an assessment of a party's knowledge at some point in time before the trial. If a psychiatrist can testify as an expert that the jurors should second-guess their assessments of what was known to a party because the jurors suffer from hindsight bias, surely many litigants—at least those with the resources—would rush to offer such evidence. Instead of being routine, as it would be if accepted here, expert testimony regarding the hindsight bias of jurors is vanishingly rare. The Government has not been able to find a single reported decision in a federal criminal case in which it was admitted. Indeed, the only instance the Government has located of such evidence being arguably admitted in any federal case was in Doe by and through Pike v. Pike, 405 F. Supp. 3d 243, 250 (D. Mass. 2019). In that civil case, however, the infringement of such evidence upon the role of the jury was not argued to the Court. Indeed, the initial motion did not even mention hindsight bias at all, and the movant mentioned the concept in passing only in reply but devoted no substantive argument to it. See Doe by and through Pike v. Pike, No. 17 Civ. 40021 (D. Mass.) (ECF Nos. 47 & 50) (memorandum of law and reply). And even in that case the Court did not actually admit the testimony, but "reserve[d] making a 13 EFTA00070853 final ruling until trial," Pike, 405 F. Supp. 3d at 250, before which the case settled. There is thus scant authority countenancing the introduction of opinions such as this. Indeed, even in the somewhat less prejudicial context of evaluating a witness's hindsight bias (instead of the jurors'), expert testimony on hindsight bias has been rejected. In DeWit v. UPS Ground Freight Inc., the court found that an expert opinion on hindsight bias "merely takes a commonsense concept and applies it to a specific field," and thus did not "concern matters that are beyond the understanding of the average lay person," and ultimately excluded it, reasoning that it "therefore would not be helpful to the jury and offers nothing more than what lawyers for the parties can argue in closing arguments." deWit v. UPS Ground Freight Inc., No. 16 Civ. 36, 2017 WL 5905575, at *2 (N.D. Fl. Jul. 25, 2017) (citations and internal quotation marks omitted). So too here.2 The defense's offer of Dr. Dietz's opinions on hindsight bias to "temper" the jurors' assessment of the evidence is thus virtually unprecedented. If this Court allowed such testimony in this case, however, it would likely become much more common. This Court should decline to open the door to the routine psychoanalysis of the jury in this way. 3. Opinions as to the "Halo Effect" Dr. Dietz's opinions concerning the "Halo effect"—i.e., that "the positive evaluation of one characteristic has a radiating effect on how other, non-related characteristics of the individual are evaluated" (Ex. A at 5)—are irrelevant to any issue to be considered by the jury and appear to 2 Accordingly, even if the defense somehow put at issue whether a witness's opinion on some matter was affected by hindsight bias—and the Government cannot currently envision how this is likely—the proper way of litigating an issue so squarely within the ken of the jury is through lay evidence and argument, not expert testimony. See deWit, 2017 WL 5905575, at *2. 14 EFTA00070854 be offered in an effort to encourage jury nullification by engendering sympathy for the defendant, as well as to offer a factual narrative based on no reliable evidence through a witness plainly incompetent to do so. None of the charges in this case relate in any way to the defendant's appraisal of Jeffrey Epstein's character or whether the defendant did or did not view him in the manner suggested by the Halo effect. Simply put, if every word that Dr. Dietz said regarding the "Halo effect" and Epstein's "brilliance" in exploiting it were taken as true, the defendant would be guilty if she met the elements of the charged offenses—exactly as she would be if every word Dr. Dietz said on this subject were disbelieved. Her knowledge and intent are no different if she participated in the conspiracy due to the Halo effect or for some other reason? Dr. Dietz's opinions on this topic simply do not tend to negate any element or establish any defense. Instead of serving any proper purpose, the apparent intent behind offering Dr. Dietz's opinion on the "Halo effect" is to engender sympathy for the defendant. But juries are not "to act based on their . . . sympathy." United States v. Stroming, 838 F. App'x 624, 627 (2d Cir. 2021) (summary order);see, e.g., United States v. Mustaga, 753 F. App'x 22, 37 (2d Cir. 2018) (summary order) ("The district court correctly recognized that evidence of solitary confinement could be used for the improper purpose of provoking juror sympathy."). Any attempt to encourage such sympathy is therefore an attempt at nullification, which is itself plainly improper. See, e.g., United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997) (Jury nullification is "by no means a right or 3 Evidence of the defendant's motive may be relevant evidence proving the offense, but evidence that a "Halo effect" gave the defendant a motive to commit the crime has no relevance as defense evidence at trial. 15 EFTA00070855 something that a judge should encourage or permit if it is within his authority to prevent."); id. at 614 ("We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent."); see also United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) ("A jury has no more `right' to find a `guilty' defendant `not guilty' than it has to find a `not guilty' defendant `guilty,' and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power." (emphasis in original)). Compounding the improper nature of this testimony, the defense appears to seek to use Dr. Dietz to opine as to a complex factual narrative that no reliable process of psychiatric evaluation could produce. Dr. Dietz is not remotely competent to opine that Epstein would "surround himself with people who would serve his needs" (Ex. A at 6), or that he was able to "use his brilliance to manipulate people to do his bidding" or "compartmentalize people into isolated cells in which none had complete information about his activities" (id. at 7-8). Dr. Dietz has absolutely no basis to make such broad and sweeping claims about Epstein or his relationships with anyone, much less anyone in this case. It appears that Dr. Dietz has reached his conclusions based solely on one interview of Epstein with Steve Bannon in which Epstein "acknowledge that he gravitated to people of power" (Ex. A at 6) and some case documents exchanged in discovery (Def. Expert Notice Ex. C, attached as Exhibit B). This "evidence" does not even support the point—it suggests that Epstein looked to the halos of others, not that he generated one himself. And it is no basis, at 16 EFTA00070856 all, for Dr. Dietz to suggest to the jury that anyone involved in this case did anything because of Epstein's "halo." This factual narration of Epstein's life and apparently the lives of other people who interacted with him, a defense summation based on a nullification defense masquerading as an expert witness opinion, is not based on any competent evidence, and in any event is patently not the product of reliable psychiatric methods reliably applied to this case. See, e.g., Island Intellectual Prop., 2012 WL 526722, at *2 ("It is also inappropriate for experts to act as ... vehicles for factual narrative"). This "opinion" should be precluded. 4. Opinions as to "Pathways to False Allegations of Sexual Assault" The defense's offer of Dr. Dietz's opinions regarding the existence of false allegations of sexual assault and the "multiple pathways to these false allegations of sexual assault" (Ex. A at 7) is a remarkable departure from permissible practice in a criminal trial. The very form and nature of all of these opinions is highly prejudicial and seeks to invade the province of the jury and displace the Court; the offer of these opinions, which are largely lifted "nearly verbatim" from a single journal article (attached as Exhibit C), is not the product of reliable methods applied to the case; the opinions are well within the ken of the jury; and there is no showing whatsoever of any "fit" between these opinions and the evidence to be presented at trial. 4 This would not be the first unreliable factual claim made by Dr. Dietz, who testified in a previous criminal case that a defendant got the idea of drowning her children in the bathtub from an episode of Law & Order in which a defendant did so and was acquitted on an insanity defense, when in fact no such episode existed. See generally e.g., Barnette v. United States, No. 12 Civ. 327, 2021 WL 949848, *9-10 (W.D.N.C. March 12, 2021). This led to the reversal of the trial conviction of the defendant in that case. See Yates v. State, 171 S.W.3d 215, 222 (Tex. App. 2005). 17 EFTA00070857  The form of Dr. Dietz's opinions-listing a number of disparate circumstances and personality traits, with no showing of any connection to the evidence of this case, and conjecturing various ways in which they could lead to false allegations of sexual assault—is a breathtaking inversion of proper expert opinion. To appreciate the audacity of the defense approach, consider if the Government attempted to do something