DOJ-OGR-00011262.pdf

Case 1:20-cr-00330-PAE Document 706 Filed 07/12/22 Page 10 of 12 Just as extrinsic evidence on this point was improper during Kate's cross, so it is improper now. Finally, Hamilton's rank speculation about Kate's motives and intent are not probative of any issue in the case. The remainder of the affidavit is simply background information about Hamilton and his relationship with Kate. Accordingly, the affidavit reflects no admissible testimony that Hamilton might offer, and he should be precluded from testifying to its contents. IV. The Court Should Preclude Testimony from Dr. Loftus That Does Not Fit the Facts of the Case The Government understands that the Court has ruled that Dr. Loftus may testify and is not seeking to relitigate that issue. However, in reviewing transcripts of Dr. Loftus's testimony in other trials, it appears that Dr. Loftus has testified about the suggestive effects of (a) the use of leading questions by Government investigators and (b) pressure from therapists to provide more details about prior experiences (known as "response pressure"). Although it is unclear precisely what "suggestive activities" Dr. Loftus will discuss while on the stand, she should be precluded from any testimony about activities which do not fit the case. As the Court has concluded, "one aspect of the Rule 702 and Daubert inquiry is 'fit,' which asks 'whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.'" (11/22/21 Mem. Op. & Order at 4). For an expert opinion to "fit," the opinion must "assist the jury's decision on a relevant question of fact . . ." (Id.); see Fed. R. Evid. 702 advisory committee notes (explaining that generalized testimony must 10 DOJ-OGR-00011262