DOJ-OGR-00005576.jpg

Case 1:20-cr-00330-PAE Document 383 _ Filed 10/29/21 Page 22 of 40 The Government is seeking an order issued in many other cases to protect the privacy and dignity of Minor Victims who will take the stand and testify about being sexually abused. The defense has failed to carry its burden of identifying any right of the defendant that is burdened by such an order. The Court should grant the motion. I. The Court Should Resolve Litigation Related to Prior Consistent Statements at the Appropriate Time The Government has moved in /imine to admit prior consistent statements of its witnesses pursuant to Rule 801(d)(1)(B) of the Federal Rules of Evidence. (See Gov’t Mot. Section II). The Government briefed this issue in advance in order to notify the Court that the Government intends to offer evidence of prior consistent statements, and to provide briefing on the relevant law. Because the Government cannot fully anticipate the defense’s opening arguments or lines of cross- examination regarding the credibility of witnesses it will call at trial, and the defense has not elaborated on them in its brief, the Government cannot identify prior consistent statements it will offer in response. Accordingly, the Government does not seek a decision on prior consistent statements at this time. In their brief, the defense recites the applicable law, largely in agreement with the Government’s view. The Government notes two points with respect to that discussion. First, it is plainly proper to offer prior consistent statements to rebut a purported inconsistency between the witness’s trial testimony and an earlier statement. See United States v. Purcell, 967 F.3d 159, 196- 97 (2d Cir. 2020). Second, it is also plainly proper for the Government to begin offering prior consistent statements if the defense attacks witness credibility in its opening statement, and the 21 DOJ-OGR-00005576