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Case 1:20-cr-00330-PAE Document 439 _ Filed 11/12/21 Page 44 of 69 C. Evidence and Argument About the Fact that Ms. Maxwell Was Not Charged by the USAO-SDFL Is Relevant to gg Credibility 1. Applicable Law The Second Circuit has rejected the position that evidence of government charging decisions is never admissible by a criminal defendant. United States v. White, 692 F.3d 235, 246 (2d Cir. 2012) (“We hold ... that the government’s charging decisions may be proper subjects for cross-examination and argument if otherwise admissible.”). “Such an all or nothing approach undermines the longstanding principle that ‘the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.’” /d. (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks omitted)). This is particularly true when the evidence “is central to the defendant’s claim of innocence.” /d. (categorical exclusion of government charging decisions “infringe[s] upon a weighty interest of the accused” and threatens “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing” (internal citations omitted)). In determining the admissibility of such evidence, a court must evaluate its “relevance and probative value.” Jd. A court may not exclude evidence of government charging decisions if it is relevant, admissible, and its probative value satisfies Rule 403. /d. at 246-48. The standard for relevance is “very low.” /d. (quoting United States v. Al-Moayad, 545 F.3d 139, 176 (2d Cir. 2008)). Evidence is relevant when “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed. R. Evid. 401. Moreover, Rule 403 “favors admissibility.” White, 692 F.3d at 247. 36 DOJ-OGR-00006461