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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 15 of 21 Plaintiffs counsel provided with a copy of a statement she gave to the police in October 2005 concerning Mr. Epstein. refused to look at the statement and did not authenticate it in any way. The statement itself is by definition hearsay — an out of court statement made by J that Plaintiff would like to offer for the truth of the matter. The only possible permissible use of the statement was for purposes of refreshing recollection under Fed. R. Evid. 612. However, J refused to look through the statement and had no independent recollection of events, as explained by her attorney. See Menninger Decl. Ex. D 16:5-18-21:23. Plaintiff's counsel made clear that he did not intend to attempt to use the police statement to refresh J recollection, and J counsel made clear that the statement would not refresh her recollection. /d. As such, the police report is simply an out of court statement, at best consistent with the few items of testimony that Jjcould recall. Under Fed. R. Evid. 612 and 801(d)(1), no portion of the statement, including those portions read into the deposition record, are admissible into evidence. With respect to J response of being unable to recall events or testify, none of the questions or answers is probative of any fact at issue in this matter, requiring exclusion under Fed. R. Evid. 401, 402 and 602 based on lack of personal knowledge. To permit the designation of leading questions with the answer that Jj could not recall violates the principles of Fed. R. Evid. 403 and 611 as well, in that the suggestive question with a non-answer confuses and misleads the jury into a belief that the attorney’s question should be taken as testimonial evidence. All testimony of J designated testimony that 1) refers to or references the police report or contents of that report; 2) that poses a leading question; or 3) that results in a response that the witness does not recall must be excluded. Likewise, the police report itself, Exhibit | in the deposition, is inadmissible under Fed. R. Evid. 801 and 612. 13