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Case 1:20-cr-00330-PAE Document 424 Filed 11/08/21 Page18 of 41 knowledge at some point in time before the trial. If a psychiatrist can testify as an expert that the jurors should second-guess their assessments of what was known to a party because the jurors suffer from hindsight bias, surely many litigants—at least those with the resources—would rush to offer such evidence. Instead of being routine, as it would be if accepted here, expert testimony regarding the hindsight bias of jurors is vanishingly rare. The Government has not been able to find a single reported decision in a federal criminal case in which it was admitted. Indeed, the only instance the Government has located of such evidence being arguably admitted in any federal case was in Doe by and through Pike v. Pike, 405 F. Supp. 3d 243, 250 (D. Mass. 2019). In that civil case, however, the issue was scarcely even before the court—the initial motion did not even mention hindsight bias at all, and the movant mentioned the concept in passing only in reply but devoted virtually no substantive argument to it. See Doe by and through Pike v. Pike, No. 17 Civ. 40021 (D. Mass.) (ECF Nos. 47 & 50) (memorandum of law and reply). And even in that case the Court did not actually admit the testimony, but “reserve[d] making a final ruling until trial,” Pike, 405 F. Supp. 3d at 250, before which the case settled. There is thus scant authority countenancing the introduction of opinions such as this. Indeed, even in the somewhat less prejudicial context of evaluating a witness ’s hindsight bias (instead of the jurors’), expert testimony on hindsight bias has been rejected. In DeWit v. UPS Ground Freight, Inc., the court found that an expert opinion on hindsight bias “merely takes a commonsense concept and applies it to a specific field,” and thus did not “concern matters that are beyond the understanding of the average lay person,” and ultimately excluded it, reasoning that it “therefore would not be helpful to the jury and offers nothing more than what lawyers for the 14 DOJ-OGR-00006229