DOJ-OGR-00008228.pdf

--- Page 1 --- The Honorable Alison J. Nathan December 5, 2021 Page 4 Case 1:20-cr-00330-PAE Document 525 Filed 12/05/21 Page 4 of 9 The Court was exactly right. ARGUMENT The government, "as the proponent of this evidence, bears the burden of showing that the evidence is admissible." Pinero v. Burbran, No. 18-CV-4698 (AJN), 2021 WL 4224727, at *3 (S.D.N.Y. Sept. 16, 2021) (quotation omitted). In turn, under Rule 901(a), "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). If authenticated, the proponent of the evidence must also prove that the evidence is relevant and not unfairly prejudicial or misleading. Fed. R. Evid. 401, 402, 403. "A picture may . . . be inadmissible, although technically accurate, because it portrays a scene that is materially different from a scene that is relevant to one of the issues at trial." United States v. Stearns, 550 F.2d 1167, 1170 (9th Cir. 1977). And when a "photograph fails to portray the relevant facts with complete accuracy, such as if changed conditions have occurred, it may be misleading." Photographs, 2 McCormick on Evid. § 215 (8th ed.).² The government has not met its burden of proof here. The charged conspiracy ended in 2004. And Jane claims she was at Mr. Epstein's New York apartment in 1994 or 1995 or 1996. ² The government relies on just two cases to support its argument: United States v. Certified Env. Services, Inc., 753 F.3d 72 (2d Cir. 2014) and United States v. Roux, 715 F.3d 1019 (7th Cir. 2013). Gov. Letter at 2. Neither case addresses photographs of real or personal property, and neither responds to this Court's concerns about the passage of time and changed circumstances. Certified Environmental Services dealt with emails and Code Rule guidance, 753 F.3d at 89-91, and Roux addressed other act evidence, 715 F.3d at 1027. Both cases addressed evidence relevant to the defendant's state of mind. Most importantly, the existence of the evidence is what made it relevant, and no one disputed authentication. The cases have no relevance here.