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Case 1:20-cr-00330-PAE Document 424 _ Filed 11/08/21 Page 38 of 41 is a tautology that someone who has a false memory—that is, unknowingly misremembers something—believes it to be accurate. Otherwise it would not be a memory. 3. Opinions Bearing on Witness Credibility and Demeanor The following opinions by Dr. Loftus invade the province of the jury by attempting to instruct it on how to assess witness credibility and demeanor: e How an individual with a false memory can describe that memory “with confidence, detail and emotion,” as described in Paragraph 5(a) above. e How an individual with a false memory is “not deliberately lying,” as described in Paragraph 5(b) above. Dr. Loftus should be precluded from opining on victim or witness credibility, including by opining as to how a victim with an alleged false memory may testify (e.g., confidently) and describing a victim with an alleged false memory as a “liar” or “not a deliberate liar.’ Such opinions would be highly prejudicial and inflammatory, would confuse and mislead the jury, and would invade the fundamental province of the jury in determining witness credibility. See Lumpkin, 192 F.3d at 288-89 (affirming district court’s exclusion of expert testimony that a witness’s confidence does not correlate to the witness’s factual accuracy in the context of an identification because such testimony “might confuse or mislead the jury”); Shohola, 2019 WL 6053223, at *10-13 (discussing jury’s province of determining witness credibility); Fed. R. Evid. 403. Such opinions, moreover, are effectively defense arguments to be appropriately made during defense summations. To allow Dr. Loftus to testify that a victim is essentially a liar (but may not realize she is a liar) or that a witness may testify confidently even when testifying untruthfully would effectively allow the defense to cloak its arguments under the imprimatur of a purported expert. The Court will instruct the jury on witness credibility. A defense expert should not provide a dueling instruction. See, e.g., Hygh, 961 F.2d at 364 (“Even if a jury were not misled into 34 DOJ-OGR-00006249