UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA S2 20 Cr. 330 (AJN) GHISLAINE MAXWELL, Defendant. THE GOVERNMENT'S OMNIBUS MEMORANDUM IN OPPOSITION TO THE DEFENDANT'S MOTIONS IN LIMINE DAMIAN WILLIAMS United States Attorney for the Southern District of New York One St. Andrew's Plaza New York, New York 10007 Assistant United States Attorneys Of Counsel EFTA00088802 Table of Contents PRELIMINARY STATEMENT 1 ARGUMENT 4 I. The Court Should Admit the Testimony of Dr. 4 A. Applicable Law 5 B. Discussion 9 1. Dr. )pinions on Coercion and Attachment are Admissible 10 2. Dr. Opinion on the Relationship Between Trust and Victim Awareness of Their Abuse is Admissible 22 3. Dr. MINtDpinion on the Long-Term Consequences of Abuse is Admissible 23 4. Dr. Opinion About the Significance of the Presence of Third Parties is Admissible 25 5. Dr. Opinion on Delayed Disclosure is Admissible 27 II. The Evidence Contained in the Government's October 11, 2021 Letter is Admissible 32 A. Applicable Law 33 B. Discussion 35 1. The Evidence is Admissible As Direct Evidence, or in the Alternative, Under Rule 404(b) 35 2. The Government Has Met and Exceeded Its Notice Obligations 39 III. The Testimony of Minor Victim-3 is Admissible 41 A. Background 41 B. Applicable Law 44 C. Discussion 45 IV. There is No Basis to Preclude Co-Conspirator Statements at Trial 54 A. Background 55 B. Discussion 58 EFTA00088803 V. There is No Basis to Suppress Minor Victim-4's Identification of the Defendant 63 A. Background 63 B. Applicable Law 65 C. Discussion 67 VI. The Court Should Deny the Defense Motions to Preclude the Government's Exhibits 71 A. Applicable Law 71 B. Discussion 72 VII. There is No Basis to Preclude Discussion of "Victims" or Rape 76 A. References to Victims 76 B. Evidence of Rape 79 VIII. The Remaining Defense Motions are Aimed at Evidence the Government Does Not Plan to Elicit 81 CONCLUSION 83 EFTA00088804 PRELIMINARY STATEMENT The Government respectfully submits this memorandum in opposition to the defendant's thirteen motions in limine, dated October 18, 2021. For the reasons that follow, the defendant's motions should be denied. First, the Government has given notice of a qualified expert who will provide reliable and relevant opinions, as required by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). (See Def. Mot. 3). Second, evidence relating to Minor Victim-3 is admissible both as direct evidence of the charged crimes, and admissible in the alternative under Rule 404(b). (See Def. Mot. 4). Third, the Government has provided adequate notice pursuant to Rule 404(b), and in any event, all evidence for which it has provided such notice is also admissible as direct evidence of the charged crimes. (See Def. Mot. 2). Fourth, there is no basis to preclude the introduction of co-conspirator statements under Fed. R. Evid. 801(d)(2)(E). (See Def. Mot. 1). Fifth, Minor Victim-4's confirmatory identification of the defendant was not unduly suggestive, and it should not be suppressed. (See Def. Mot. 9). Sixth, the Government's various exhibits are relevant, and the Government will authenticate them at trial. (See Def. Moth. 7, 8, 13). Seventh, it is entirely proper for the word "victim" and for discussion of rape to be used in a trial about the sexual exploitation of minor victims. (See Def. Mots. 11, 12). Eighth, and finally, the Government does not intend to offer evidence of the defendant's flight, her false exculpatory statements, or law enforcement expert testimony in its case in chief, unless the defendant opens the door or otherwise puts this evidence in issue. (See Def. Mots. 5, 6, 10). 3 EFTA00088805 ARGUMENT I. The Court Should Admit the Testimony of Dr. The Government intends to call Dr. •as an expert witness. Dr. Ms the President -Elect of the Division of Trauma Psychology at the American Psychological Association. She is currently a clinical instructor at the Alpert Medical School of Brown University, and she has practiced psychology for approximately 25 years, specializing in treating patients with trauma, including sexual trauma in childhood and adolescence. Dr. has treated hundreds of victims of trauma, including many victims of child sexual abuse, and she has written, presented, and taught about the assessment and treatment of trauma. She has also received continuing education on trauma and the treatment of trauma in a clinical setting. (See generally Curriculum Vitae, Def. Mot. 3 Ex. 2). On April 23, 2021, the Government timely notified the defendant of its intent to call Dr. n its case-in-chief. As the notice explains, Dr. is expected to testify, based on her relevant education, training, experience, and research, and offer the following opinions: Individuals with particular vulnerabilities are often targeted by perpetrators of sexual abuse. Sexual abuse of minors frequently occurs through the use of manipulation or coercion in the context of an established relationship that is developed over time, rather than through the use of forcible rape. Minor victims are often subject to a strategic pattern of behaviors, often called grooming, that can take a variety of forms and function to render the victims vulnerable to abuse, to obscure the nature of the abuse, and to build trust and attachment with their abuser. The relationship of trust and attachment can prevent victims from being aware that what they are experiencing is abuse and can prevent disclosure. Minor victims therefore may not identify themselves as victims of abuse while it is ongoing, and may not recognize the consequences of that abuse until adulthood. Repeated exploitation and abuse can increase the likelihood of victimization later in life and can result in long-term 4 EFTA00088806 traumatic and psychological consequences, especially when it occurs in the context of complex trauma. The presence of other individuals can facilitate the sexual abuse of minors. Dr. is also expected to testify that nondisclosure, incremental isc osure, and secrecy are common among victims of sexual abuse for a variety of reasons, and that memory and disclosure of traumatic or abusive events is impacted by a number of factors, including the circumstances surrounding the trauma. (Expert Notice, Def. Mot. 3 Ex. 1 at 2). As the notice also explained, Dr. has not evaluated any of the victims in this case, and the Government does not currently intend to offer Dr. testimony regarding any specific victim. (See id.). There is nothing controversial about this testimony. It is well supported by established scientific principles, and it is the kind of testimony frequently admitted in cases involving sexual abuse. This Court should do the same. A. Applicable Law District courts have a "gatekeeper function" in analyzing the admissibility of expert testimony. Phelps v. CBS Corp., No. 17 Civ. 8361 (AJN), 2020 WL 7028954, at *3 (S.D.N.Y. Nov. 30, 2020) (quoting Restivo v. Hessemann, 846 F.3d 547, 575 (2d Cir. 2017)). Although the proponent of the evidence carries a burden of proof to establish its admissibility by a preponderance of the evidence, see, e.g., United States v. Jones, 965 F.3d 149, 161 (2d Cir. 2020), courts apply a "presumption of admissibility of evidence." Felix v. City of New York, No. 16 Civ. 5845 (AJN), 2020 WL 6048153, at *6 (S.D.N.Y. Oct. 13, 2020) (quoting Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995)). Accordingly, the relevant rule of evidence, Rule 702, reflects "the `liberal thrust' of the Federal Rules and their `general approach of relaxing the traditional barriers to `opinion' testimony." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 5 EFTA00088807 579, 588 (1993) (quoting Beech Aircraft Cap. v. Rainey, 488 U.S. 153, 169 (1988)). Under Daubert, a district court must first determine whether an expert is qualified. See Fed. R. Evid. 702 ("A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise . ."); United States v. Kidd, 385 F. Supp. 3d 259, 263 (S.D.N.Y. 2019) ("At the first step of the Daubert inquiry, courts are instructed to consider the expert's qualifications."). Courts then must determine whether the testimony "will be not only relevant, but reliable." United States v. Romano, 794 F.3d 317, 330 (2d Cir. 2015); see Dauber!, 509 U.S. at 597 (explaining that courts must ensure "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand"). On reliability, Rule 702 identifies three "indicia of reliability": (1) "that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case." United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002)). "[T]hese criteria," however, "are not exhaustive." Id. Daubert itself, which "dealt with a scientific theory," offered additional factors, such as whether the theory "'has been subjected to peer review and publication," and the "'known or potential rate of error."' Romano, 794 F.3d at 330 (quoting Daubert, 509 U.S. at 593-94). And "there are many different kinds of experts, and many different kinds of expertise." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). "[W]hether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a 6 EFTA00088808 particular case, the expert's testimony will often rest upon an experience confessedly foreign in kind to the jury's own." Id. at 149 (alterations and internal quotation marks omitted); see United States v. Felder, 993 F.3d 57, 71-72 (2d Cir. 2021) ("Such specialized knowledge can be grounded in scientific or other particularized training, but it can also derive from personal observations or experience, see id., so long as those observations or experience are outside the ken of the average person." (internal quotation marks and citations omitted)); Fed. R. Evid. 702, Advisory Committee's Note (2000) (explaining that expert testimony may be based on "experience alone—or experience in conjunction with other knowledge, skill, training or education"). The key question is whether "an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152; see Williams, 506 F.3d at 160 (explaining that the Daubers test is "flexible"). In particular, if an expert's testimony is within "the range where the experts might reasonably differ," the jury, not the trial court, should be the one to decide among the conflicting views of different experts. Kumho Tire, 526 U.S. at 153. So long as the testimony is not "speculative or conjectural or based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison . . . any other contentions that the assumptions are unfounded go to the weight, not the admissibility of the testimony." Phelps, 2020 WL 7028954, at *3 (citations and internal quotation marks omitted). Thus, 'the rejection of expert testimony is the exception rather than the rule.'" Floyd v. City of New York, 861 F. Supp. 2d 274, 287 7 EFTA00088809 (S.D.N.Y. 2012) (citing Fed. R. Evid. 702 Advisory Committee's Notes (2000 Amendments)). "[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho Tire, 526 U.S. at 142 (emphasis in original); see United States v. Requena, 980 F.3d 30, 47 (2d Cir. 2020). Thus a district court may properly exercise its gatekeeping function without the "formality of a separate hearing[.]" Williams, 506 F.3d at 161; see also United States v. Barnes, 411 F. App'x 365, 370 (2d Cir. 2011) (summary order). "This is particularly true if, at the time that the expert testimony is presented to the jury, a sufficient basis for allowing the testimony is on the record." Williams, 506 F.3d at 161 (citing 4 Weinstein's Federal Evidence § 702.02 [2] (2d ed. 2006)). Finally, even if the expert testimony is reliable, it must also be relevant. See, e.g., United States v. Torres, No. 20 Cr. 608 (DLC), 2021 WL 1947503, at *6 (S.D.N.Y. May 13, 2021). In this context, the testimony must "concern matters that the average juror is not capable of understanding on his or her own." United States v. Mejia, 545 F.3d 179, 194 (2d Cir. 2008); see Faulkner v. Arista Records LLC, 46 F. Sup. 3d 365, 375 (S.D.N.Y. 2014) ("Weighing whether the expert testimony assists the trier of fact goes primarily to relevance."). Courts have frequently admitted expert testimony on the psychological relationship between perpetrators and victims of sex crimes. For instance, in United States v. Kidd, 385 F. Supp. 3d 259 (S.D.N.Y. 2019), the Government gave notice of expert testimony on "the psychology of the pimp-prostitute relationship," including concepts such as "trauma bonding." Id. at 263. The defendant interposed a Daubert challenge, arguing that the expert's testimony was not based on "studies or empirical data" and so could not "be assessed for reliability." Id. (internal 8 EFTA00088810 quotation marks omitted). The district court rejected that argument, explaining that "case law quite commonly upholds this type of testimony against Daubert challenges," and that the expert's experience writing about, treating, and speaking to prostitutes was sufficiently reliable. Id. at 263- 64; see also, e.g., Letter, United States v. Kelly, No. 19 Cr. 286 (AMD) (E.D.N.Y. July 23, 2021) (Dkt. No. 134); United States v. Torres, No. 20 Cr. 608 (DLC), 2021 WL 1947503, at •6 (S.D.N.Y. May 13, 2021) (permitting expert testimony on "domestic abuse and coercive control"); Feb. 25, 2020 Tr. at 24:1-40:15, United States v. Randall, 19 Cr. 131 (PAE) (S.D.N.Y.), Dkt. No. 335 (permitting expert testimony on "[t]rauma and coercive control in the context of sex trafficking, including the psychological relationship between pimps and the women prostituted by them"); Notice and Oct. 17, 2019 Tr. at 27:1-12, United States v. Dupigny, No. 18 Cr. 528 (JMF) (S.D.N.Y.), Dkt. Nos. 180-1, 198 (permitting expert testimony on "the psychological relationship between a pimp and the woman prostituted by him" and "why prostituted women do not leave their pimp"). B. Discussion The defendant does not contest that Dr. IM is a qualified expert. Nor could she: Dr. =is a leader in her field, teaching others as a professor at Brown University, and she has approximately twenty-five years of clinical experience. She is testifying in general about core concepts in her field, based on her "extensive study of the relevant data and literature and her clinical experience treating hundreds of trauma and abuse patients over the past twenty years." 9 EFTA00088811 United States v. Raniere, No. 18 Cr. 204 (NGG), 2019 WL 2212639, at *7 (E.D.N.Y. May 22, 2019). Instead, the defendant suggests that Dr. opinions are unreliable, irrelevant, or prejudicial. To the contrary, and as explained in greater detail below, each of the Dr. five challenged opinions is well supported and would aid the jury in understanding the evidence at trial. The Court should permit Dr. a testify. ini 1. Dr. Opinions on Coercion and Attachment are Admissible a. e a As described in the expert notice, Dr. will testify about the role that trust and attachment play in relationships between a victim and an abuser: Sexual abuse of minors frequently occurs through the use of manipulation or coercion in the context of an established relationship that is developed over time, rather than through the use of forcible rape. Minor victims are often subject to a strategic pattern of behaviors, often called grooming, that can take a variety of forms and function to render the victims vulnerable to abuse, to obscure the nature of the abuse, and to build trust and attachment with their abuser. The relationship of trust and attachment can prevent victims from being aware that what they are experiencing is abuse and can prevent disclosure. (Expert Notice, Def. Mot. 3 Ex. 1 at 2). Dr. will opine that victims are often abused in the context of a coercive and manipulative relationship which develops over time through the building of victims' trust and attachment. One aspect of this relationship is "often called grooming." (Def. Mot. 3 Ex. 1 at 2). However, the concepts of attachment and coercion go beyond grooming, and encompass both the trust-building aspect of the relationship and the ways in which 10 EFTA00088812 that bonds victims to their abusers and prevents victims from disclosing that they have been abused.' These opinions stem in part from Dr. personal familiarity and experience treating victims of sexual abuse for decades. She is trained in trauma psychology, she has expertise in treating victims of sexual abuse who have been subject to this pattern of behavior, and she teaches residents about trauma psychology. Cl Bosco v. United States, No. 14 Civ. 3525 (JFK), 2016 WL 5376205, at *11 (S.D.N.Y. Sept. 26, 2016) (expert testimony about "common knowledge among urologists" require the expert to "draw upon the defining characteristics that make him a member of that community: his training as a urological surgeon, his practical experience performing several hundred ureteroscopies, and his knowledge as a clinical instructor of surgery"). These opinions also stem from the relevant literature. This pattern of coercive attachment is not a novel or outlier concept in the literature of trauma psychology. For instance, attached as Exhibit A are some of the articles that have been provided by Dr. and inform her testimony. See Dietz, "Grooming and Seduction," 33 J. of Interpersonal Violence 28, 34 (2018) The concepts of attachment and grooming encompass a variety of established techniques, including: (1) the use of attention, love, and affection; (2) using bribery and gift giving; (3) sexual desensitization —that is, talking to children about sex and engaging in touching; (4) isolating the victim; and (5) engaging in emotional manipulation. Grooming efforts can also extend to "grooming the environment." Craven et al., "Sexual grooming of children: Review of literature and theoretical considerations," 3 J. of Sexual Aggression 287, 292-93 (2006) ("Some offenders groom the environment by targeting single-parent families to gain [a position of trust].] Offenders may do this because they believe that these children are more vulnerable and because they believe it will be easier to create opportunities to be alone with the child. Alternatively, offenders may target children or young people who have absent parents, and hence have less protection." (citation omitted)). 11 EFTA00088813 ("Since its introduction to the peer-reviewed professional literature in 1984, the term `grooming' has become so widely adopted that it will remain in widespread use for decades to come."); Bennett & O'Donohue, "The Construct of Grooming in Child Sexual Abuse: Conceptual and Measurement Issues," 23 J. Child Sexual Abuse 957, 964-68 (2014) (reviewing the literature on the prevalence of various grooming techniques); Craven et al., "Sexual grooming of children: Review of literature and theoretical considerations," 3 J. of Sexual Aggression 287, 292-93 (2006) ("[R]etrospective identification of sexual grooming, i.e. after a sexual offence has been committed, is much easier than prospective identification, i.e. before a sexual offence"). To be clear, however, her review of the literature —and therefore the basis of her testimony —extends beyond these articles. Accordingly, Dr. came to her opinions through her clinical experience on this specific issue, as informed by her education and study of the relevant literature. That is a sufficient demonstration of "how the expert came to [her] conclusion and what methodologies or evidence substantiate that conclusion." Riegel v. Medtronic Inc., 451 F.3d 104, 127 (2d Cir. 2006); see Feb. 25, 2020 Tr. at 24:1-40:15, United States v. Randall, 19 Cr. 131 (PAE) (S.D.N.Y.), Dkt. No. 335 (rejecting the notion that "the many studies that have validated trauma bonding and coercive controls as established phenomena are unreliable for want of laboratory -like statistical vetting"); Oct. 17, 2019 Tr. at 27:1-12, United States v. Dupigny, No. 18 Cr. 528 (JMF) (S.D.N.Y.), Dkt. Nos. 180-1, 198 (explaining that "the basis for the testimony —namely, the witness's training and experience —is not such that it would be subject to exclusion on the grounds that it's not based on 12 EFTA00088814 some sort of empirical scientific testing," and that "those arguments go to the weight, not the admissibility, of her proposed testimony"). As noted above, courts have frequently admitted testimony about the psychological relationship between victims of sexual abuse and their perpetrators. See supra pp. 7-8. Courts have also specifically authorized expert testimony on the subject of grooming. See, e.g., United States v. Telles, 6 F.4th 1086, 1097-1098 (9th Cir. 2021) (holding that admission of expert testimony on grooming did not violate Federal Rules of Evidence 702 or 403 nor violate due process and finding that the expert "'merely gave a straightforward account of relevant background information based on [the expert's] own knowledge and experience" (quoting United States v. Johnson, 860 F.3d 1133, 1141 (8th Cir. 2017)); United States v. Halamek, 5 F.4th 1081, 1087-89 (9th Cir. 2021) (holding that expert testimony on grooming was "relevant, reliable, and properly admitted"); United States v. Isabella, 918 F.3d 816, 833 n.15 (10th Cir. 2019) ("Grooming can be established by use of an expert witness who testifies about psychological tactics that are common in cases of child sex abuse."); United States v. Hitt, 473 F.3d 146, 158 (5th Cir. 2006) (affirming expert testimony on the "grooming process"); Morris v. State, 361 S.W.3d 649, 656-69 (Tx. Ct. Crim. App. 2011) (collecting cases showing that "grooming evidence has been received by courts from numerous types of experts"); see also United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006), abrogated on other grounds by United States v. Cabrera, 13 F.4th 140 (2d Cir. 2021) (noting that evidence of grooming supported the jury's verdict). Against this weight of authority, the defendant relies principally on one case from the District of Maine. United States v. Raymond, 700 F. Supp. 2d 142 (D. Me. 2010). The proposed 13 EFTA00088815 testimony in this case is readily distinguishable from that in Raymond. There, the government gave notice of expert testimony about the "behavior of child molesters" from a veteran FBI agent who had reviewed case studies of child abuse and had written one book and one article. Id. at 143, 145, 147. The purported expert's book, in turn, merely made assertions about the "profile" of child molesters, with no information about how his experiences reliably led to his conclusions. Id. at 147-48. In the same breath, however, the book "disavow[ed] [its] reliability ... for legal use," and his article similarly offered generalized views on what "many" offenders were "more likely or less likely to do." Id. at 148 (emphasis omitted). Accordingly, at bottom, the purported expert's testimony was based only on his subjective conclusions after reviewing case studies. See id. at 147 n.5 (explaining that the expert "troubling[ly]" wrote that "data is not the plural of anecdote," but "the information and opinions are based primarily on the totality of my acquired knowledge and expertise"). The situation here is quite different. Dr. conclusions are not anecdotal; they are grounded in the academic literature and her formal and informal education. Moreover, she will be testifying about concepts she regularly employs as a practicing clinician. Again, the defense does not contest that Dr. is qualified to be an expert on this subject. And Dr. opinions are not an attempt to offer a "profile" of perpetrators of child sexual abuse or their activities. Instead, Dr. will testify about the psychological underpinnings of an 14 EFTA00088816 established pattern of victimization —attachment and coercion—experienced by victims of sexual abuse. The defense would read Raymond to stand for the proposition that expert testimony is unreliable if it does not explain "what testing was involved, what data she considered, or how her conclusions can be verified." (Def. Mot. 3 at 8). For instance, the defense criticizes Dr. for opining that sexual abuse of minors occurs "frequently," without specifying whether it occurs "half the time" or "two-thirds of the time." (Id. at 7; see id. at 8 (quoting Raymond, 700 F. Supp. 2d at 148-49)). That is not what is required by Daubert in the context of qualitative social science, and it is not what many courts have held in the context of precisely this form of testimony, as explained above. To the extent Raymond stands for such a broad proposition, it is contrary to the law of this Circuit. See United States v. Joseph, 542 F.3d 13, 21-22 (2d Cir. 2008), abrogated on other grounds as recognized by United States v. Ferguson, 676 F.3d 260, 276 n.14 (2d Cir. 2011) (recognizing that social science research "cannot have the exactness of hard science methodologies, and expert testimony need not be based on statistical analysis in order to be probative" (citation and internal quotation marks omitted)). 2 The defendant's remaining critiques of Dr. opinion miss the mark. First, the defendant asserts that Dr. patients are uncorroborated, and she "simply assumes her 2 Even in Raymond, the Court left open the possibility that the Government could call the expert in rebuttal to "counter a defense case that victim testimony in this case should not be believed because the victim delayed in reporting the abuse or did not report it consistently." 700 F. Supp. 2d at 156. Even were the Court inclined to follow Raymond rather than the cases in this District, it should similarly revisit permitting Dr. to testify about the opinion at issue if the defense attacks victim credibility. 15 EFTA00088817 patients are telling the truth." (Def. Mot. 3 at 6). The defendant claims that this "fatally undermines the reliability of her opinion" because her conclusion has "no known or identified rate of error . . . nor is there a reliable method or a series of factors guiding conclusion as to whether an individual victim is fabricating her abuse." (Id. (alterations and quotation marks omitted)). Clinical psychologists are not so credulous. As part of Dr. work as a practicing clinician, she examines consistencies and inconsistencies in the information provided by patients and assesses patient self-reporting in the context of literature and knowledge that she has developed in her years of practice. As the Government's expert notice makes clear, Dr. has treated hundreds and hundreds of patients in her decades of experience, and her opinions are based in part on the significant patterns she has observed among the patients she has treated. The Court should reject the defendant's speculative claim that Dr. has been misled by hundreds of patients who sought professional treatment for traumatic events that did not occur. In any event, the defendant's argument about error rates misunderstands the nature of a Daubers inquiry. An error rate is but one of the Daubers factors that may or may not be applicable in every case. See Romano, 794 F.3d at 330. And in cases such as this, where a social science expert is testifying based on qualitative methodology, that factor is inapplicable. See Torres, 2021 WL 1947503, at *6 n.8. As the Second Circuit has explained, "Peer review, publication, potential error rate, etc. . . are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it. In such cases, the place to quibble with [an expert's] academic training is on cross-examination .. . 16 EFTA00088818 ." Joseph, 542 F.3d at 21-22 (first and second alterations in original) (citations and internal quotation marks omitted). That point is particularly true in sex trafficking cases. As Judge Engelmayer explained when evaluating the testimony of a similar expert in a sex trafficking case, analyzing error rates is an "unusually poor fit" in this area: [S]tudying the circumstances and psychological drivers of trafficked women is not like studying diseases or potential cures in laboratory animals. . . . Given the necessarily retrospective nature of such a study, given the small size of the populations under review, and given the inherently individualized circumstances presented by different perpetrators, victims, and contexts in this tumultuous and emotionally fraught area of criminal conduct, the vocabulary of error rates ... is an unusually poor fit.... The testing that has been done as to trauma bonding and coercive control, instead, necessarily uses more qualitative research methodologies. These involve interviews and case studies and clinical examinations conducted over time." Feb. 25, 2020 Tr. at 29:4-30:20, United States v. Randall, 19 Cr. 131 (PAE) (S.D.N.Y.), Dkt. No. 335. Because statistical rigor is not a useful method for evaluating the reliability of qualitative research like Dr. statistical tools like error rates are irrelevant to the Daubers analysis. Contrary to the defendant's next claim, these opinions are not "impregnable for purposes of cross examination." (Def. Mot. 3 at 7 (citation and internal quotation marks omitted)). The defendant is free to cross Dr. on how frequently she sees grooming in her patients and how she evaluates whether they are telling the truth. The defendant is also free to explore, in cross examination, the difficulties in assessing whether a patient has been groomed. The defense can also make arguments —in cross examination and in jury addresses —about the lack of quantitative rigor in this qualitative area of science. That is the point: it is for the jury, after hearing the 17 EFTA00088819 evidence, to evaluate what weight to give it. But that does not change whether Dr. opinions are squarely within the mainstream of psychological practice. The defendant next argues that Dr. patients are "self-selected," and she has not established the "representativeness of her patients as typical victims of so-called grooming behavior." (Def. Mot. 3 at 7). But the defendant makes no argument that the minor victims in this case are distinctive in some way such that general principles of psychology may diverge as to them. And in any event, that argument is for the jury to evaluate, and not a basis to preclude Dr. ...testimony. See Feb. 25, 2020 Tr. at 36:13-37:5, United States v. Randall, 19 Cr. 131 (PAE) (S.D.N.Y.), Dkt. No. 335 (rejecting a defense attempt to distinguish between native-born and domestic-born women because, "while a court is to be a gatekeeper as to reliability so as to keep `junk science' away from juries, the Court must not overstep that role. Whether or not the Court would be persuaded that adult native-born women can be subject to trauma bonding, the Court is not to arrogate to itself that judgment.") Finally, the defendant argues that Dr. has no experience treating perpetrators of sexual assault, so she cannot testify as to the psychology of perpetrators and their "so-called `grooming' techniques." (Def. Mot. 3 at 7-8). Many of the opinions the defendant challenges concern the experiences of victims, not perpetrators. Dr. will testify about the pattern to which "minor victims are often subject," which makes "victims vulnerable to abuse," and builds their "trust and attachment with their abuser." (Expert Notice, Def. Mot. 3 Ex. 1 at 2 (emphasis added)). Grooming creates in the victims "a relationship of trust and attachment" that "can prevent victims from being aware that what they are experiencing is abuse and can prevent disclosure. (Id. 18 EFTA00088820 (emphasis added)). Dr. testimony will also include discussion of techniques used by perpetrators. Dr. Rocchio's testimony regarding such techniques is supported by Dr. review of the relevant literature, see Exhibit A, and through her clinical work. By virtue of her experience treating victims, Dr. is necessarily informed about perpetrators' actions. See Halamek, 5 F.4th at 1088 ("Extensive experience interviewing victims can qualify a person to testify about the relationships those victims tend to have with their abusers."). Dr. will testify squarely within her expertise and experience. ; b. Relevance and Rule 403 Dr. opinions will assist the trier of fact in understanding the evidence at trial. This case concerns an "unusual area of human interaction." See Feb. 25, 2020 Tr. at 39:8-9, United States v. Randall, 19 Cr. 131 (PAE) (S.D.N.Y.), Dkt. No. 335. The Minor Victims in this case were trafficked over many years, and none were physically restrained. An average juror, with no experience with sexual abuse victims, may not understand why the Minor Victims continued to 3 In United States v. Raniere, No. 18 Cr. 204 (NGG), 2019 WL 2212639 (E.D.N.Y. May 22, 2019), Judge Garaufis questioned whether an expert on grooming with experience focused on victims may have been able to testify reliably about how "perpetrators often use `grooming' techniques on adult and child victims . . ." Id. at *7. Even then, he did not exclude the testimony —he simply ordered a Daubert hearing. Id. at *8. The Government ultimately declined to proceed with that testimony rather than conduct a mid-trial Daubert hearing. Here, and as noted above, Dr. proposed testimony concerns the experience of manipulated and coerced victims, rather than the intentions of perpetrators. 19 EFTA00088821 return to Epstein's home for sexual abuse, or why some occasionally expressed affection for the defendant and Epstein. Although Dr. will not testify about these specific Minor Victims, her testimony will help the jurors understand the "psychological dynamic often seen in abusive relationships that leads an abuse victim to behave in counterintuitive ways, such as by declining to take opportunities to leave an abusive situation or by expressing gratitude to an abuser." Torres, 2021 WL 1947503, at *7. This psychological dynamic between a victim of child sexual abuse and her abusers is "beyond the knowledge of the average juror and would or could plainly be helpful in understanding the psychological dynamics at play." Oct. 17, 2019 Tr. at 27:3-7, United States v. Dupigny, No. 18 Cr. 528 (JMF) (S.D.N.Y.), Dkt. No. 198; cf. See Feb. 25, 2020 Tr. at 38:13-20, United States v. Randall, 19 Cr. 131 (PAE) (S.D.N.Y.), Dkt. No. 335 ("[B]y and large the relationship between prostitutes and pimps is not the subject of common knowledge. Jurors are not apt to intuitively understand the mechanisms that may lead a woman who is not physically restrained or confined to heed the demands of a pimp to traffic herself."). Accordingly, Dr. testimony will help the jury understand and contextualize the other testimony it will hear.' The defendant expresses concern that a lay jury will be unable to apply Dr. analyses to the facts of this case, stating "[t]hat is not how Rule 702 works." (Def. Mot. at 10). Relying again on Raymond, the District of Maine case, the defendant argues that expert testimony about "general principles is helpful only when it `describes widely recognized and highly predictable and verifiable phenomena.' (Def. Mot. 10 (quoting Raymond, 700 F. Supp. 2d at 150 n.12 (alterations omitted)). That proposition comes from footnote 12 of Raymond, which attempted to distinguish that expert's "profile" testimony from the Federal Rules Advisory Committee's observation that the 2000 amendment "does not alter the venerable practice of using 20 EFTA00088822 That is precisely how Rule 702 works in cases where experts testify about general principles, which the Rule contemplates. See Fed. R. Evid. 702 Advisory Committee note ("[I]t might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case."). Dr. will provide reliable opinions about principles of coercion and attachment in abusive relationships that will help the jury understand the psychological factors underlying the relationships that the jury will learn about at trial. Finally, the defendant argues that the Court should preclude Dr. aestimony under Rule 403. In so arguing, she expresses concern that Dr. testimony will "'radically simplify' an otherwise complex case" by "Toist[ing] a damning teleology on a series of actions each of which might have been motivated by a variety of ends or no ends at all."' (Def. Mot. at 11 (quoting United States v. Burns, No. 07 Cr. 556, 2009 WL 3617448, at *5 (N.D. III. Oct. 27, 2009)).5 There is nothing prejudicial or simple about Dr. testimony. The jury will not conclude that the defendant is guilty because Dr. explains that acts which "might have been motivated by a variety of ends" are sometimes part of the process of sexual abuse. Whether expert testimony to educate the factfinder on general principles." Raymond, 700 F. Supp. 2d at 150 n.12 (quoting Fed. R. Evid. 702 Advisory Committee note). The defendant cites no place containing this limitation in the text of the Rule, its advisory committee notes, Daubers, or the law of this Circuit or District. Nor does it make sense on its own terms: "how financial markets respond to corporate reports" or the "principles of thermodynamics" are sometimes highly predictable, but not always, depending on the context. 5 Burns, a case about a district court's application at sentencing of a Guidelines enhancement, says nothing about whether the jury would be confused by learning about grooming. 21 EFTA00088823 they were in this case will depend on the other evidence. That is not a prejudicial simplification — that is the trial. There is nothing unreliable, irrelevant, or unusual about Dr. opinion on coercion and attachment. Drawing on her decades of clinical experience and her familiarity with the relevant literature, Dr. will give opinion testimony that will help the jury understand witness testimony. That is all Rule 702's gatekeeping requirements demand. 2. Dr. Opinion on the Relationship Between Trust and Victim Awareness of Their Abuse is Admissible At trial, the Government intends to offer Dr. testimony about how victims process their abuse and how that can prevent or delay disclosure. As the Government set forth in its expert notice, Dr. will testify that: The relationship of trust and attachment can prevent victims from being aware that what they are experiencing is abuse and can prevent disclosure. Minor victims therefore may not identify themselves as victims of abuse while it is ongoing, and may not recognize the consequences of that abuse until adulthood. (Def. Mot. 3 Ex. 1 at 2). This opinion is part and parcel of Dr. other opinions about the relationship between attachment and coercion. Specifically, and as noted above, victims develop relationships of trust and attachment with their abusers that leave victims vulnerable to coercion. This opinion adds that, as part of this relationship, victims may not recognize that they are experiencing abuse and may not see themselves as victims while they are in this relationship, and therefore may not disclose their abuse or recognize the consequences of their abuse until later in life. As the defense correctly observes, this opinion is intertwined with Dr. opinions about coercion and attachment. (Def. Mo. 3 at 12). Just as those are reliable, so is this one. 22 EFTA00088824 The defense argues that this opinion is outside Dr. expertise because she has "no experience treating alleged perpetrators," so "her view ... is entirely one-sided." (Id.). As is clear from the above excerpt, her testimony is about largely about trust and attachment built in victims, and the resultant ways in which victims process abuse. But she is also an expert in the actions and techniques of perpetrators through her review of the literature and the lens of what she has learned through victims. This opinion is therefore squarely within Dr. expertise. Finally, the defendant argues that this testimony violates Rule 704, because it is an "opinion that the alleged victims in this case are testifying truthfully," and 403, because it "risks jurors accepting her `expert' opinion as gospel at the expense of their duty to evaluate the evidence." (Def. Mot. 3 at 13). Dr. as not evaluated the victims in this case and will not express an opinion as to whether they are testifying truthfully. And the defense motion is entirely unclear on the features of this expert opinion that create risk that the jurors would abdicate their responsibilities. To the contrary, the defense concerns underscore how relevant this opinion will be in aiding the jurors in understanding the testimony at trial. 3. Dr. Opinion on the Long-Term Consequences of Abuse is Admissible Dr. will also testify that "[r]epeated exploitation and abuse can increase the likelihood of victimization later in life and can result in long-term traumatic and psychological consequences, especially when it occurs in the context of complex trauma." (Def. Mot. 3 Ex. 1 at 2). As Dr. Sill explain, and as is detailed in her Jencks Act material6, experiencing child 6 The Government produced Dr. Jencks Act material to the defense at the time of the expert notice. (See Def. Mot. 2 ("The Government is producing notes from the Government's interviews with Dr. oday as well.")). 23 EFTA00088825 sexual abuse can lead to a variety of psychological difficulties, including substance use and participation in risky sexual behavior. Complex trauma—trauma involving repetitive or prolonged exposure to or experiences of multiple traumatic stressors, involving harm or abandonment by trusted adults, and occurring at developmentally vulnerable times—can lead to various psychological consequences, including dysregulation in emotional control, difficulties in relationships or with behavioral control, and distorted perceptions of the self and others. This opinion is highly relevant. It is likely that jurors will not be intimately familiar with the consequences of child sexual abuse. Accordingly, the causal connection between these psychological problems and child sexual abuse is outside the experience of the average juror. Yet that information will aid the jury in two respects: First, it will help jurors assess the credibility of Minor Victims, to the extent they have had some of these psychological symptoms or had other difficulties described by Dr. in the years since their abuse. For instance, the Government expects the defense to attack the credibility of a Minor Victim by cross0-examining her about her substance abuse. Dr. testimony will provide the jury with a fuller picture by showing that substance abuse can be a consequence of sexual trauma. Second, experiencing certain psychological difficulties is consistent with past child sexual abuse and complex trauma. It is evidence that Minor Victims in fact experienced child sexual abuse that they suffered known consequences of such abuse. See Raniere, 2019 WL 2212639, at *3, *7 (admitting expert 24 EFTA00088826 testimony that "sexual assault can result in severe, long-lasting and wide-ranging psychological consequences and related difficulties"). The defendant argues that this evidence is nonetheless prejudicial because it will inflame the passions and emotions of the jury. (Def. Mot. 3 at 14). The Minor Victims, however, will be the ones testifying about the abuse they experienced and observed, and—whether on direct or cross—about the psychological consequences of their experiences. The question is only whether the jury will hear from an expert about the causal connection between those two concepts— testimony about concepts not specifically applied to any victim, and testimony about a causal connection whose reliability the defense does not challenge. There is nothing inflammatory about this expert testimony, much less something sufficiently prejudicial to substantially outweigh the probative value of the testimony. See Fed. R. Evid. 403. 4. Dr. Opinion About the Significance of the Presence of Third Parties is Admissi e As noted above, Dr. will opine that "[t]he presence of other individuals can facilitate the sexual abuse of minors." (Def. Mot. 3 Ex. I at 2). For instance, and as Dr. will explain, the presence of a third party can disarm an intended victim and make perpetrators appear safe and trustworthy, or can create a false sense of security on the part of a minor victim that sexualized situations are normal and acceptable. Based on her experience as a clinician, Dr. will testify that young children in particular often feel more comfortable in the presence of a woman. The defendant objects to this testimony on the grounds that it concerns a lay matter "which a jury is capable of understanding and deciding without the expert's help." (Def. Mot. 3 at 14 25 EFTA00088827 (citation and internal quotation marks omitted)). Dr. however, is not testifying about common experience or from common experience. Her testimony stems from her clinical experience, and it concerns the psychological experiences of victims when a third person is present during parts of their sexual abuse, as part of her broader opinion on attachment and coercion. The average juror will not have knowledge of or experience in the psychology of abuse victims, and Dr. =testimony will aid their understanding. The defendant relatedly seeks to preclude Dr. from testifying about "grooming - by-proxy," a term which appears nowhere in the Government's expert notice. (Def. Mot. 3 at 9). By that term, the defendant appears to argue that Dr. will opine that an individual can groom a victim for abuse by another perpetrator, and that such an opinion is unreliable and "prejudicial speculation." (Id.). This argument misses the mark in three respects. First, Dr. estimony primarily concerns the experience of victims, not perpetrators, as explained above. If the victim experienced attachment and grooming, it makes no analytical difference whether the perpetrator intends to engage in sexual contact with the victim or, instead, is preparing the victim for abuse by a third party. See Feb. 25, 2020 Tr. at 31:1-34:12, United States v. Randall, 19 Cr. 131 (PAE) (S.D.N.Y.), Dkt. No. 335 (explaining that, where there is a "reliable basis for testi[mony] about trauma bonding and coercive control as phenomena that exist more broadly," the expert may testify, and defendants "are at liberty to vigorously cross-examine [the expert] to attempt to cabin or limit trauma bonding and coercive control to populations predominately outside of the alleged victims in this case"). Indeed, expert testimony is commonly offered in sex trafficking cases on the pimp-prostitute relationship, which is specifically designed to permit the 26 EFTA00088828 pimp to arrange sex acts for third parties. See, e.g., Kidd, 385 F. Supp. 3d at 263; Oct. 17, 2019 Tr. at 27:1-12, United States v. Dupigny, No. 18 Cr. 528 (JMF) (S.D.N.Y.), Dkt. No. 198. Second, in any event, the Government did not provide expert notice on "grooming by proxy." Dr. will give an opinion on grooming, and she will discuss how "[t]he presence of other individuals can facilitate the sexual abuse of minors." (Expert Notice, Def. Mot. 3 Ex. 1 at 2). The former is a reliable opinion, as explained above, and the defendant does not challenge the reliability of the latter opinion. (See Def. Mot. 3 at 14). Third, trial testimony will show that the defendant (1) in fact participated in sexual abuse of minors, (2) facilitated that abuse through her presence, and (3) conspired with a predator who groomed and sexually abused minors. None of that involves "grooming by proxy." 5. Dr. )pinion on Delayed Disclosure is Admissible Finally, Dr. will offer the opinion that "nondisclosure, incremental disclosure, and secrecy are common among victims of sexual abuse for a variety of reasons, and that memory and disclosure of traumatic or abusive events is impacted by a number of factors, including the circumstances surrounding the trauma." (Def. Mot. 3 Ex. 1 at 2). Much of the basis for this opinion is set forth in Dr. Jencks Act material. For instance, extensive psychological literature supports the idea that individuals who are harmed as children may come to disclose their experiences incrementally or not until much later, as they may only realize that their experiences were abusive later in life, among other reasons. Selected articles from that literature are attached as Exhibit B. See Alaggia et al., "Facilitators and Barriers to Child Sexual Abuse (CSA) Disclosur