DOJ-OGR-00006921.pdf

--- Page 1 --- The extracted text is: **Case 1:20-cr-00330-PAE** **Document 453** **Filed 11/12/21** **Page 41 of 52** criminal, (4) the certainty with which the witness first identified the suspect, and (5) the time lapse between the crime and the identification. Id. at 1186. Each of these factors weighs heavily in Ms. Maxwell's favor: as to 1-3, until 2020, had never claimed Ms. Maxwell participated in any abuse and never identified Ms. Maxwell -- indeed, she had never before been asked to identify Ms. Maxwell. Concerning number 4 was less than certain, as demonstrated by her selection of someone else who may have been "Ms. Maxwell." Factor 5 also weighs in Ms. Maxwell's favor, as the delay was 17 years. Accordingly, Ms. Maxwell requests that the Court hold an evidentiary hearing on this motion and find that the show up was unduly suggestive and suppress any identification of Ms. Maxwell, before or during trial. **VIII. GOVERNMENT AGREES NOT TO ELICIT LAW ENFORCEMENT OPINION TESTIMONY** The government agrees that it has not noticed any law enforcement officers as experts and, as to their fact police officers, "will not elicit expert testimony from them." Resp. at 82-83. Overlooking the long list of potential law enforcement opinion testimony that has been disallowed by Courts in the past (see Mot. at 2-5), the government then goes on to make the confusing claim that the defense should have to "provide expert" testimony from the government's own case agents if it wants to call them as witnesses. Resp. at 83 n.24. The defense has no intention of eliciting opinion testimony from the agents when they testify. As the motion makes clear, the defense fully understands the contours of lay versus opinion testimony from law enforcement officers. The case agents are first hand percipient witnesses to a number of facts in the investigation and prosecution of this case, including as the impeachment witness for the many changed stories of the accusers.