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Case 1:20-cr-00330-PAE Document509-1 Filed 11/24/21 Page 8of10 rule applies if a witness testifies, and the prior statement “is inconsistent with the declarant’s testimony and was given under penalty of perjury . . . ata deposition.” Fed. R. Evid. 801(d)(1)(A). Thus once Minor Victim-4 testifies, the defendant can attempt to make a showing of inconsistency with the transcript of her deposition testimony, and if the Court agrees with the defendant, offer the relevant portion of the transcript. But that has nothing to do with Dr. Hall, who, among other things, was almost certainly not the reporter who transcribed that deposition.® OK OK In addition to identifying no affirmative rule that allows Dr. Hall to offer hearsay about Minor Victim-4’s personal history, the defendant does not dispute that the most prejudicial aspects of that history are independently barred by other rules of evidence. In particular, she does not disagree that the Court’s Rule 412 rulings apply to Dr. Hall. (Mot. 13-14). She also does not dispute that none of PO satisfies Rules 404 or 609 (id. 12-13), meaning that it is not a proper subject for Dr. Hall’s direct testimony or cross-examining Minor Victim-4. IV. ‘Dr. Hall’s Fact Testimony Is Inadmissible Whether Dr. Hall can testify that Minor Victim-4’s statements to him contradict her trial testimony is a dispute that cannot be resolved until Minor Victim-4 testifies. For now, it suffices to point out three plain errors in the defendant’s opposition: ® The defendant also argues that the defendant’s statements about her mental health conditions are “statements of her then-existing mental, emotional, or physical condition” under Rule 803(3). By its plain terms, this exception does not reach any historical statements by Minor Victim-4, which are not statements of her condition at the time she was interviewed by Dr. Hall, and would in any event be prohibited statements “of memory or belief to prove the fact remembered or believed.” Fed. R. Evid. 803(3). DOJ-OGR-00008119