DOJ-OGR-00006245.jpg

Case 1:20-cr-00330-PAE Document 424 Filed 11/08/21 Page 34 of 41 under Rule 403. /d. at *6 (citing cases); see also Heine, 2017 WL 5260784, at *2 (excluding expert testimony under Rules 702 and 403 under the same principles as Libby because it would not be helpful to the jury and would “invad[e] the jury’s role in assessing the credibility of witnesses,” and because the trial did “not involve issues of repressed or recovered memories,” among other things); Libby, 461 F. Supp. 2d at 14 (excluding memory expert’s testimony because it would not be helpful to the jury, invaded the province of the jury, and was likely to confuse, mislead, or unduly influence the jury, among other things). C. Discussion As set forth herein, although the Government acknowledges that testimony about memory may be proper in response to Dr. Rocchio, Dr. Loftus’s proposed testimony does not satisfy the Daubert standard. Specifically, the Government objects to any attempt by the defense to offer her testimony as to (a) opinions as to false memory formation that are unreliable or do not fit the facts of the case, (b) commonsense principles within the ken of the jury, (c) opinions bearing on witness credibility and demeanor, and (d) factual narratives about the case. 1. Opinions as to False Memory Formation Dr. Loftus offers the following opinion on false memory formation that is unreliable and lacks fit to the case: e How false memories may be created through post-event information and occurrences, suggestion, and influence, as described in Paragraph 3 above. This opinion on false memory formation is central to Dr. Loftus’s testimony, but the defense has not carried its burden of establishing its reliability. See Fed. R. Evid. 702, 703; Daubert, 509 U.S. at 589. As an initial matter, the defense expert notice provides no information 30 DOJ-OGR-00006245