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Case 1:20-cr-00330-PAE Document 745 Filed 08/10/22 Page 7 of 264 413
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and those were introduced.
If we hypothetically had photos of that same island
before those houses were built, we don't, but if we did and we
wanted to introduce those through Larry Visoski, again, that
would be affirmative defense in the defense case-in-chief
introduced through the government's witness. That would be
Rule 16 which we'd have to disclose ahead of time.
THE COURT: Right.
MR. EVERDELL: Now, what we are talking about here is
what Witness 1, what Jane, remembers about the childhood, about
these events; it's about her recollection of everything, and
that is critical to the case. So misremembering details,
misremembering where she lived, not being able to recognize a
house, that all goes to her credibility as a witness, her
believability, any contradiction.
This is central to the case. Her memory of every
single detail of her childhood is central to the case, and that
is not case-in-chief material. That is, if she testifies to
something and we think we have something that contradicts what
she just said, like a photograph of her -- of a place where sh
lived as a child, but she didn't seem to remember, that's
impeachment material. And we don't know if we're going to use
that until she says on the stand what she says on the stand.
We have it ready to go in case she says that, and she did in
this case, and so that's why we were able to use it or try to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Case 1:20-cr-00330-PAE
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Document 745
use it,
That is pur
impeachment material.
Filed 08/10/22
Page 8 of 264 414
to show that she doesn't have an accurate recollection.
THE COURT: Up to the point where you said it
contradicted what she said on the stand, you and I were in
vigorous agreement.
MR. EVERDELL: Okay.
THE COURT: Okay.
MR. EVERDELL: All right.
Well, what I would say is that we can't -- no, this is
not -- it's not as if we were going to introduce the photograph
of her house in our case-in-chief.
We are doing
this -- we had
it ready to be able to use it in case she said something that
we believe was contradictory and contradicted by the
photograph.
time, because we believed it to b
So that's why we did not disclose it ahead of
impeachment material.
By the way, Judge, I'll just note
for the record that
when we sent our Rule 16 discovery several weeks ago to the
government, we included a cover letter, which I'm happy to
share with the Court --
THE COURT: can imagine it reserved all your rights.
And you can keep talking,
but we remain in agreement.
MR. EVERDELL:
Okay.
we Cited,
And it cited all the cases that
and it said we do not consider impeachment material
or refreshing material case-in-chief material.
THE COURT: It is true. I think, Mr. Rohrbach agrees.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Case 1:20-cr-00330-PAE Document 745 Filed 08/10/22 Page 9 of 264 415
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The only question in any specific instance is is it impeaching,
and is it a prior inconsistent statement. We have to deal with
the rules around a prior inconsistent statement. It wasn't
like you had deposition testimony. You had an FBI agent's
write-up of notes which the witness was confronted with and
said it was a mistake. Again, that wasn't moved in, but we can
deal with that as it comes.
There could be -- not here, but there could be 608
issues if you're trying to use extrinsic evidence. If what we
have is impeaching by contradiction, impeachment of what the
witness testified to on the stand, then it's not going to be a
608 issue.
MR. EVERDELL: If we're impeaching the witness, yes,
that's right. And I just want to address the issue of
impeaching with extrinsic evidence, which I know the government
has raised. That rule is -- and the cases they cite --
THE COURT: I know you cited Rule 613. I hadn't
understood their argument to be about 613.
MR. EVERDELL: They raised in their papers the notion
that you can't impeach -- or you can't use extrinsic evidence
to impeach. But the rule there and the cases they've cited