DOJ-OGR-00006248.pdf

--- Page 1 --- **Document Header:** * Case 1:20-cr-00330-PAE * Document 424 * Filed 11/08/21 * Page 37 of 41 **Title:** 2. Commonsense Principles Within the Ken of the Jury **Text:** The following opinions by Dr. Loftus are commonsense opinions within the ken of the jury: * How memory fades and weakens over time, as described in Paragraph 1 above. * How memory may become vulnerable to contamination, as described in Paragraph 2 above. * How an individual with a false memory may believe that their memory is accurate, as described in Paragraph 5(b) above. * Examples of suggestive activities, such as news and media reports and discussions/conversations with others, as listed in Paragraph 6 above. Any testimony from Dr. Loftus with respect to these commonsense principles of memory and perception should be excluded under Rules 703 and 403 because such testimony would not aid the jury. "It is common knowledge that memory fades with time." Labansat, 94 F.3d at 530 (affirming district court denial of defendant's motion to retain an eyewitness expert). An expert is simply not needed to "point out that memory decreases over time." United States v. Welch, 368 F.3d 970, 973-75 (7th Cir. 2004) (excluding eyewitness memory and perception expert). In excluding a memory and perception expert in Libby, the court explained: [O]n daily basis the average juror is personally faced with innumerable questions of memory and cognition, as everyone in their daily lives is called upon to store, encode, and retrieve information he or she has been subjected to. Although the average juror may not understand the scientific basis and labels attached to causes for memory errors, jurors inevitably encounter the frailties of memory as a commonplace matter of course. Libby, 461 F. Supp. 2d at 12-13. It is similarly common knowledge that memories can be contaminated, including through exposure to news media. Jurors, like all individuals, may be asked to remember something, and may become confused as to the source of the memory. And it **Footer:** * DOJ-OGR-00006248