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Case 1:20-cr-00330-PAE Document692_ Filed 11/22/21 Page16of17 B. The Court reserves judgment on the admissibility of Dr. Hall’s fact testimony Finally, two of Dr. Hall’s anticipated opinions are fact testimony not subject to Rule 702. Specifically, Dr. Hall would testify that Alleged Victim 4 told him that she previously disclosed other sexual abuse to a prior mental health provider, ae. but did not disclose abuse by Epstein to a. Def. Br. at 16.* Further, Dr. Hall would testify that in their interview Alleged Victim 4 “did not identify Ms. Maxwell as a perpetrator of any abuse.” Notice at 12. The Defense argues these statements are admissible as prior inconsistent statements. Def. Br. at 16-17. The Government concedes that Dr. Hall’s testimony here would be admissible, including potentially as a prior inconsistent statement, if relevant and not otherwise excludable. Gov’t Br. at 16, 18. The Court reserves judgment on this question, but provides this guidance. The Defense will cross-examine Alleged Victim 4 and, as the Court has previously ruled, it may ask whether Alleged Victim 4 on previous occasions implicated Ms. Maxwell in the alleged sexual abuse by Epstein. Nov. 1 Tr. at27. Whether the Defense may then admit any of Dr. Hall’s testimony will depend on Alleged Victim 4’s response to that question, whether any prior statement is actually “inconsistent” with her response, see United States v. Trzaska, 111 F.3d 1019, 1024-25 (2d Cir. 1997) (reversing a district court’s admission of prior statements that were not inconsistent), and whether the Defense satisfies the other requirements of admitting extrinsic evidence of a prior inconsistent statement under Federal Rule of Evidence 613. From the parties’ briefing, the Court understands that the Defense would not seek to admit Dr. Hall’s testimony about what Alleged Victim 4 told for the truth of the matter asserted, as that would be hearsay with no apparent exception. See Def. Br. at 16 (referring to Alleged Victim 4’s statements to | | and stating “[t]his evidence is admissible as a prior inconsistent statement”). Even then, however, the Court is skeptical that a situation would arise in which this statement could be used to contradict Alleged Victim 4’ testimony without assuming the statement’s truth. 16 DOJ-OGR-00011154