DOJ-OGR-00008231.pdf

--- Page 1 --- The Honorable Alison J. Nathan December 5, 2021 Page 7 Case 1:20-cr-00330-PAE Document 525 Filed 12/05/21 Page 7 of 9 The government attempts to marginalize this Court's legitimate concern about highly mobile items. But the Court's concern is well founded. Twenty-five years have passed since Jane was at Mr. Epstein's house. Artwork is highly mobile. Furniture is highly mobile. Massage tables are highly mobile. (The government carried one such table into the well of the courtroom.) Curtains are easily changed and replaced. The list goes on. So, absent at least some testimony on the subject, there is no reason to think that these highly mobile items depicted in the 2019 photos are the same highly mobile items that Jane says she saw (though not in the massage room) in 1994 or 1995 or 1996. Indeed, the government now disavows any argument "that the particular nude artwork in the exhibits was present while Jane was abused." Gov. Letter at 8. But if that's so, then there's no probative value to the unauthenticated photographs, particular when, as the Court acknowledged, the government already "ha[s] [Jane's] description in" evidence. TR 12/3/2021, p 1077:3. Because the government has not authenticated the 2019 photos as accurate representations of Mr. Epstein's house in 1994 or 1995 or 1996, they are irrelevant. But even if they were relevant, this Court could still exclude them as unfairly misleading and prejudicial. Fed. R. Evid. 403. They are misleading because, as McCormick recognizes, the government has not shown the lack of changed conditions. § 215. Photographs, 2 McCormick on Evid. § 215 (8th ed.). And they are unfairly prejudicial because they depict something occurring fifteen years after the charged conspiracy, they have no connection to Ms. Maxwell, and they are inflammatory. Fed. R. Evid. 403. DOJ-OGR-00008231