DOJ-OGR-00005983.pdf

--- Page 1 --- **Case 1:20-cr-00330-PAE** **Document 398** **Filed 10/29/21** **Page 28 of 52** **Case 1:20-cr-00330-PAE** **Document 398** **Filed 10/29/21** **Page 28 of 52** The government denies Ms. Maxwell's argument that "a lay jury will be unable to apply Dr. Rocchio's analyses to the facts of this case" because "[t]hat is not how Rule 702 works." Resp. at 20. Responds the government: "That is precisely how Rule 702 works in cases where experts testify about general principles, which the Rule contemplates." Id. at 21. Surely that is not right when, as here, the "general principles" are unreliable. Fed. R. Evid. 702, Advisory Committee Note (if expert testifies to general principles but not apply them, "the testimony [must] be reliable"). See also Mot. at 10; Raymond, 700 F. Supp. 2d at 150 n.12 (expert testimony about general principles is helpful only when it "describe[es] widely recognized and highly predictable and verifiable phenomena"). The government attempts to fault Ms. Maxwell for making "no argument that the minor victims in this case are distinctive in some way such that general principles of psychology may diverge as to them." Resp. at 18. This argument flips the proper analysis on its head. It's the government's burden to prove reliability. E.g., United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007). It's not Ms. Maxwell's burden to prove unreliability (though if it were her burden, she would have met it). The government says that "the causal connection between . . . psychological problems and child sexual abuse is outside the experience of the average juror" and is relevant to the alleged victims' credibility. Resp. at 24. It's not, and any minor probative value the evidence has is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 401, 403. And as explained in the Rule 412 motion today, if Rocchio offers testimony and the government presents argument **22**