DOJ-OGR-00006350.jpg

Case 1:20-cr-00330-PAE Document 435 Filed 11/11/21 Page9of11 average person,” and so appropriate for expert testimony. United States v. Felder, 993 F.3d 57, 72 (2d Cir. 2021). Nor would admission of these opinions cause unfair Rule 403 prejudice since they are relevant rebuttal to impeachment points that the Defense will put in issue. The Defense argues that Dr. Rocchio’s testimony is not relevant because the Government represents that she will testify only to general principles and not offer “testimony regarding any specific victim.” Dkt. No. 386 at 3. The Defense has the law backwards on this point. As explained above regarding the Second Circuit’s Nimely decision, an expert may not testify as to a specific witness’s credibility. 414 F.3d at 398. And as other courts have explained in admitting similar testimony, Dr. Rocchio’s testimony is appropriate because she does not testify as to any specific witness’s credibility. See, e.g., Torres, No. 20-CR-608 (DLC), 2021 WL 1947503, at *7; Johnson, 860 F.3d at 1140 (8th Cir. 2017) (explaining that an expert may testify “regarding the general characteristics that sexually abused children exhibit” but may not usurp the jury’s role of assessing the credibility of any specific victim); United States v. Telles, 6 F.4th 1086, 1097-98 (9th Cir. 2021) (same). This analysis is referred to in the case relied upon by the Defense, United States v. Raymond, and in portions of the Defense’s briefing, as a question of “fit.” 700 F. Supp. 2d at 149. But Daubert’s “fit” requirement is really just a specialized relevance inquiry that asks “whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Alto v. Sun Pharm. Indus., Inc., No. 1:19-CV- 09758 (GHW), 2021 WL 4803582, at *3 (S.D.N.Y. Oct. 13, 2021) (quoting Daubert, 509 U.S. at 591). Fit is satisfied if the expert’s opinion would assist the jury’s decision on a relevant question of fact without “usurp[ing] either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.” /d. (quoting DOJ-OGR-00006350