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Case 1:20-cr-00330-PAE Document516 Filed 11/21/21 Page15of17 contaminated over time, how false memories can be created through suggestive activities, and how alleged victims can testify to false memories they believe to be true. Each of these opinions derives from Dr. Loftus’s expertise in memory science and is supported by significant research she has conducted. See Shiraishi, 2019 WL 1386365, at *4. Additionally, the Court finds that opinions on suggestive activities and creation of false memories are “beyond the knowledge of the average juror.” Doe, 2018 WL 1064572, at *5 (collecting cases that admitted expert testimony on the effects of suggestive questioning of alleged sexual abuse victims). Nor do these opinions about suggestion and false memory, as currently proffered by the Defense, invade the jury’s fact-finding role. Much like Dr. Rocchio may inform jurors that victims of sexual assault often delay disclosure, Dr. Loftus may inform jurors that the literature indicates that false accusations can result from suggestive activities or false memory creation. The Court will, however, limit or preclude altogether several of Dr. Loftus’s opinions. First, Dr. Loftus’s opinion that “memory fades and weakens over time” falls within the ken of the average juror. Notice at 1. “It is common knowledge that memory fades with time.” United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996); see also United States v. Welch, 368 F.3d 970, 973-75 (7th Cir. 2004), judgment vacated on other grounds, 543 U.S. 1112 (2005) (“[I]t does not require an expert witness to point out that memory decreases over time.”); United States v. Heine, No. 3:15-CR-00238-SI-2, 2017 WL 5260784, at *3 (D. Or. Nov. 13, 2017) (“{T]hat memories are fallible and may deteriorate over time . . . is within the ken of the ordinary juror.”). It is therefore inadmissible as expert testimony. Mulder, 273 F.3d at 101. Second, the notice of Dr. Loftus’s expert testimony refers three times to Dr. Loftus’s expected testimony on “the suggestive activities that occurred in the current case.” Notice at 2 (emphasis added). The Court would preclude such testimony on the specific facts of this case 15 DOJ-OGR-00008187