DOJ-OGR-00006670.pdf

--- Page 1 --- **Document Header** * **Case Number:** Case 1:20-cr-00330-PAE * **Document Number:** Document 446 * **Filed Date:** 11/12/21 * **Page Number:** Page 8 of 11 **Handwritten Notes** * The original custodian of the evidence is dead and unavailable to testify at trial. * The handwritten notes contained in the inventory are confusing and hearsay. * The evidence was apparently transferred to case agents who will not be testifying in this trial. * Accordingly, no witness has sufficient personal knowledge about the proposed exhibits to satisfy either Fed. R. Evid. 901 or 602. * See United States v. Netschi, 511 F. App'x 58, 62 (2d Cir. 2013) (no foundation existed to establish that the emails were what the defendant asserted, and the proposed method of introducing them through an investigator with no personal connection—beyond seeing them in an inbox—was insufficient). **Section III: Detective Recarey's Absence Implicates Ms. Maxwell's Right to Confront and Cross-Examine Witnesses** * The Confrontation Clause protects a criminal defendant's right to cross-examine witnesses. * Limitation on cross-examination may violate the Sixth Amendment's Confrontation Clause if it prevents the defendant from, among other things, exposing a witness's biases, motivation, or incentives for lying, or eliciting testimony that is relevant and material to the defense. * United States v. Muhanad Mahmoud Al-Farekh, 956 F.3d 99, 114 (2d Cir. 2020). * The Sixth Amendment's Confrontation Clause entitles a criminal defendant to encounter witnesses "face-to-face." Coy v. Iowa, 487 U.S. 1012, 1017 (1988). * As the Supreme Court has noted, this right "traces back to the beginnings of Western legal culture" and has, throughout generations, ensured fairness in criminal proceedings—both actual and apparent. * Id. at 1016–18. * The admission of the seized evidence is based on Government Exhibit 295, the affidavit of Detective Recarey. * Only Detective Recarey was familiar with the items seized, the content of the items seized, how the items were stored, and the disposition of those items. * "The Sixth"