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Case 1:20-cr-00330-PAE Document507 - Filed 11/24/21 Page 22 of 28 Wt. THE COURT SHOULD PRECLUDE THE TESTIMONY OF BENNETT GERSHMAN The defense proposes to call Bennett Gershman, a professor of law at Pace University, for the following testimony: We expect Professor Gershman to provide testimony on best practices to ensure the integrity of any prosecution, focusing on investigation, witness preparation, media contact, neutrality, obligations to provide accurate information, and relationship with crime victims, their counsel, and case-related civil litigation. (Ex. A at 12). This testimony should be precluded as irrelevant. At the conference on November 1, 2021, the Court precluded “affirmative evidence by the defense that goes to the thoroughness of the investigation,” (11/01/21 Tr. at 17:15-17), including “evidence of the public outcry and scrutiny that preceded the decision to charge the defendant,” (id. at 21:1-9), as well as evidence regarding “why and when the government conducted the investigation,” including any defense evidence that the Government “has a legally improper motive for prosecuting [the defendant] or somehow [is] fabricating evidence or suborning perjury or the like,” (id. at 23:2-6). The Court reaffirmed the settled law in this Circuit that “the government is not on trial.” (/d. at 23:10-11 (quoting United States v. Knox, 687 F. App’x 51 (2d Cir. 2017))). To the extent evidence similar to this evidence is permissible, the Court concluded that it was permitted only as “relevant cross-examination of the government’s witnesses.” (/d. at 27:19-29:24). Gershman’s proposed testimony is relevant only to the defense theories that the Court has precluded. This testimony invites the jury to conclude that either the New York investigation or Florida investigation—or both—lacked “integrity.” (Ex. A at 12). Whether that supposed lack of 20 DOJ-OGR-00008063