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Case 1:20-cr-00330-PAE Document690 Filed 11/19/21 Page4of23 The probative value of the anticipated testimony must of course be balanced with any potential prejudice under Rule 403. As the Court noted at the November 1 conference, there is a risk that the jury may confuse the issues and think that the sexual conduct this witness is describing itself constitutes the illegality charged in the Indictment due to the closeness in age of this witness to the age of consent. Nov. 1, 2021 Tr. at 89-90. There is also the risk that the jury may convict Ms. Maxwell due to feelings of immorality or sympathy for the witness despite the lack of illegality with regard to the crimes charged in the Indictment. However, the Court concludes that this risk of prejudice can be sufficiently minimized through two avenues. First, the testimony must be carefully limited. Second, there must be a clear limiting instruction. As to the first, the witness is limited to stating that sexual activity occurred but is precluded from providing detailed descriptions of the sexual activity. There is little to no probative value of a witness describing sexual activity when that witness’s testimony regarding the sexual activity cannot form the basis for the conviction of the crimes charged. For example, any prejudice fon ii described above is substantially diminished by limiting the proffered testimony to the Defendant’s interaction with the witness and testimony indicating that sexual activity allegedly took place without describing the details of that sexual activity. Unlike the details of the sexual conduct itself, this anticipated testimony would not be unduly prejudicial. In contrast, the minimal probative value of the details of sexual conduct would be substantially outweighed by the risk of the jury convicting Ms. Maxwell on an improper basis. The same is true of the witness’s subjective experience of the sexual conduct and any emotional or other impact the sexual conduct had on the witness because such testimony cannot form the basis of a conviction in this case. Accordingly, the witness is limited, as the Government phrased it, to describing her “factual experience” as to the lines of testimony DOJ-OGR-00011112