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Case 1:20-cr-00330-PAE Document 701 Filed 07/12/22 Page3of10 defendant claimed that the Government’s supplemental letter was untimely and simultaneously supplemented the defendant’s expert notice for Forensic Examiner Robert Kelso. Notwithstanding the anticipated objections, the defendant waited more than a week and filed a motion to preclude at approximately 9:45 p.m. the night before Flatley is expected to testify. I. Applicable Law “The Federal Rules of Evidence allow the admission of fact testimony so long as the witness has personal knowledge, while opinion testimony can be presented by either a lay or expert witness.” United States v. Cuti, 720 F.3d 453, 457-58 (2d Cir. 2013). “The initial question is therefore whether the contested testimony should be characterized as fact or opinion,” which is a distinction that is “at best, one of degree.” Jd. at 458. The admission of fact testimony is governed by Federal Rule of Evidence 602, which requires that the witness have “personal knowledge of the matter.” Fed. R. Evid. 602. The admission of expert testimony is governed by Rule 702, and applies to witness who offer opinions who are “qualified as an expert by knowledge, skill, experience, training or education.” Fed. R. Evid. 702. Where a witness will offer expert testimony, the Federal Rules require the proponent to “describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C). As the 1993 amendments to Rule 16 note, the Rule is meant to “minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through focused cross-examination.” /d. 1993 Amend. “Ifa party fails to comply with Rule 16, the district court has broad discretion in fashioning a remedy ... .” United States vy. Ulbricht, 858 F.3d 71, 115 (2d Cir. 2017), abrogated on other grounds by DOJ-OGR-00011182