DOJ-OGR-00006552.pdf

--- Page 1 --- **Case 1:20-cr-00330-PAE** **Document 440** **Filed 11/12/21** **Page 36 of 40** **F. The Court Should Preclude Challenges to the Credibility of Individuals Who Are Not Witnesses at Trial** The defendant does not appear to dispute the Government's statement of the law: the credibility of individuals who are neither witnesses nor hearsay declarants is not at issue and cannot be challenged. (Def. Opp. at 43-45). The motion should therefore be granted. The defense's primary response is that they are not sure what statements will be elicited and the non-hearsay bases for such statements. Of course, the defense has had the Government's witness list and Jencks Act material for more than two weeks. Those materials make clear that the Government does not intend to elicit hearsay statements from Minor Victim-5 and Minor Victim-6. And the defense has failed to point to any such evidence. To give one example, to the extent the Government offers a school record related to Minor Victim-5 as a business record (see id. at 45 (citing GX 781-83)), that record would not constitute a statement by Minor Victim-5 offered for the truth of the matter asserted. Insofar as the defense's point is that the Government might open the door to challenging the credibility of an individual by offering that individual's hearsay statement for the truth of the matter asserted, the Government agrees. But if the Government does not open the door, the credibility of Minor Victim-5 and Minor Victim-6 are not at issue. And the defense cannot challenge the credibility of these individuals—in opening statements or otherwise—unless and until the defense seeks a ruling from the Court that the Government has opened the door. **G. Evidence or Argument About the Minor Victims' Consent is Categorically Inadmissible** The defendant is charged with enticement of a minor, transporting a minor, sex trafficking of a minor, and conspiracy to commit those offenses. (See Indictment 11 11-27). None of those 35 **DOJ-OGR-00006552**