Prosecutor wants federal court to determine if expert testimony is admissible

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ASSISTANT U.S. Attorney Eric O’Malley has asked the federal court to hold a hearing to determine whether the defendants’ expert witness testimony is admissible under the rules of evidence.

Last week, District Court for the NMI Chief Judge Ramona V. Manglona granted the joint request of Rota Mayor Efraim Atalig and co-defendant Evelyn Atalig to amend their witness list and to add Gregory Vecchi, Ph.D., a Federal Bureau of Investigation interviewing expert, as an expert witness.

Dr. Vecchi will testify “on matters relating to (among other subjects) coercive and misleading effect of the way the [U.S.] government’s investigative agents used in this matter when interviewing witnesses and the significance of certain ‘Henthorn’ materials of an agent involved in this case.”

The Ataligs also provided the prosecution with a 12-page second supplementary summary of the subject matters on which Dr. Vecchi intends to testify.

In his opposition to the motion, O’Malley said the court should determine whether the testimony of Dr. Vecchi is admissible under the federal rules of evidence.

He said the court should also issue an order compelling production of material and information regarding the testimony of the expert witness.

According to the prosecutor, the summaries provided by the defendants are insufficient.

O’Malley said, “Defendants have provided the [U.S.] government with their proposed expert’s 62-page curricula vitae, and roughly five paragraphs of narrative in their summaries. The [U.S.] government acknowledges that the proposed expert has extensive experience and education in fields that might include knowledge of ‘confirmation bias,’ but that term is noticeably absent from his curricula vitae. Nor do the summaries elaborate why he is adept at detecting ‘confirmation bias’ based on the described source material (primarily affidavits and investigative reports) and capable of explaining its relevance to a jury.”

O’Malley added, “Nor does the information produced this far provide qualifications to testify about ‘improper’ — presumably meaning violative of a law, regulation, or rule — interviewing techniques or ‘accepted’ (by whom?) investigative standard and practices.”

O’Malley said the summaries indicate that should CNMI Office of the Public Auditor investigator Travis Hurst or FBI special agent Haejun Park testify that defendants and or certain unnamed co-conspirators made inculpatory admissions during interviews, Dr. Vecchi will testify that the jury should doubt their credibility because the agents’ exhibited “confirmation bias” during the interviews, and had a pattern of failing to comply with internal protocols throughout the investigation.

However, O’Malley said the summaries provide no information about the science, principles, or methodologies upon which Dr. Vecchi’s testimony will rely.

“The summaries neither provide nor cite any scholarly test or scientific study that suggests a criminal investigator who fails to comply with internal draft reporting procedures will tend to give unreliable or dishonest testimony. Nor do the summaries explain how comparing several interview reports to subsequent affidavits drafted by the interviewees is a tested, reliable, and generally-accepted method if identifying confirmation bias.”

O’Malley said the summaries cite no scientific authority “for the proposition that warning interviewees that lying to a federal agent is a crime is more likely to produce a false confession than the truth. Absent this information, Dr. Vecchi’s testimony will be no more than a retired agent getting paid to armchair quarterback the work of active investigators, and it should not bear the imprimatur of ‘expert.’”

According to O’Malley, the defendants have also repeatedly justified withholding additional information regarding the proposed expert “by claiming that the material on which his analysis is based constitutes impeachment evidence that is not discoverable prior to trial.”

The defendants also “intimate vaguely that Dr. Vecchi may testify to matter not related to credibility,” O’Malley said.

“Defendants should not be permitted to wield Rule 16 as both sword and shield by seeking to introduce opinion analysis but preventing the [U.S.] government from mounting a meaningful challenge by simply asserting that the underlying material is reserved for impeachment. At a minimum, if Dr. Vecchi is to testify to anything not impeachment-related, that material should be provided,” O’Malley said.

The Ataligs’ jury trial has been rescheduled for Aug. 4, 2020 at 10 a.m.

The Ataligs are accused of arranging CNMI government funded trips to California, Palau, Guam, and Saipan from Feb. 2018 to Aug. 2018.

A superseding indictment charged them with conspiracy, wire fraud, theft from program receiving federal funds, and two counts of false statements.

Mayor Atalig is represented by attorney David Banes while Evelyn Atalig is represented by attorney Steven Pixley.

In the CNMI Superior Court, Mayor Atalig and seven of his former and current resident directors were charged with misconduct in public office.

They are accused of taking government-funded per diem and salary compensation to attend a Republican campaign rally on Guam on June 23, 2018.

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