DOJ-OGR-00011270.pdf

Case 1:20-cr-00330-PAE Document 708 Filed 07/12/22 Page 3 of 15 the witness in good faith asserts that he cannot remember the relevant events," in which case "the trial court may, in its discretion, exclude the prior testimony"). Similarly, "prior silence concerning critical facts might be deemed inconsistent with later testimony which includes their purported recollection," but only if "the failure to mention those matters . . . conflict[s] with that which is later recalled." United States v. Leonardi, 623 F.2d 746, 756 (2d Cir. 1980). "Where the belatedly recollected facts merely augment that which was originally described, the prior silence is often too ambiguous to have any probative force, and accordingly is not sufficiently inconsistent to be admitted for purposes of impeachment." Id. at 756-57 (citation omitted). Additionally, "the probative value of a witness's prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose." Hong Fei Gao v. Sessions, 891 F.3d 67, 78 (2d Cir. 2018). Second, whether the proponent gave the witness an "opportunity to explain or deny the statement" and the adverse party "an opportunity to examine the witness about it." Fed. R. Evid. 613(b). Third, whether the evidence is "competent and otherwise admissible." Ghailani, 761 F. Supp. 2d at 118. Fourth, whether the impeachment relates to a non-collateral matter. See, e.g., United States v. Blackwood, 456 F.2d 526, 530 (2d Cir. 1972). Finally, whether the evidence's probative value is not substantially outweighed by the factors in Rule 403. II. Discussion The Government agrees that certain prior inconsistent statements are admissible and will 3 DOJ-OGR-00011270