Photograph Exhibit Admissibility Hearing
65 lines(Witness excused) Everyone may be seated. Okay, Ms. Menninger, GX304.
MS. MENNINGER: Yes, your Honor. I have an extra set of the exhibits that I believe that the government intends to offer through this witness, if I may approach for the Court's benefit.
JUDGE NATHAN: Sure. Okay.
MS. MENNINGER: Your Honor, there are obviously several categories of different types of photographs that are contained in the exhibits that I believe the government intends to offer. Some of them obviously are pictures of Ms. Maxwell and Mr. Epstein at various places, times, et cetera. There is no witness that I'm aware of that's going to talk about when these photographs were taken, where they were taken, what they accurately represent, et cetera. I think the more problematic ones, though, are of individuals, including just one of, for example, my client laying on a boat at some unknown point in time in some unknown location. There are others that are people who have testified, in fact recently in this case. I would direct the Court's attention to 309, which is a recent witness, likewise 332 is a witness, and those witnesses were not asked to identify these photographs to say when they were taken, the circumstances under which they were taken. Likewise, your Honor, those two individual witness photographs are, I believe, what's known as PSD files. In other words, they are from a photo shop program when you go and look at the metadata behind those particular photos. So, it is particularly questionable whether or not they are what they purport to be or there have been any alterations to the photographs. So, without the witness who can establish that these photographs are what they purport to be at some particular time or under certain circumstances or dates, I don't think that just simply having possession of photographs on a CD in a home gets you through those many different problems, including hearsay problems, your Honor. That's without the issue that pertains to metadata, though I think --
JUDGE NATHAN: I'm sorry. What statements are being offered for the truth?
MS. MENNINGER: Your Honor, there are, embedded in these, and I think it's 332B is a screenshot of purported metadata that has a title that was affixed to this photograph by a person and it is labeled not by a computer-generated photograph. For example, if your Honor were to take a photograph with your iPhone, your phone might save it as IMG and then give it a number. That's the kind of machine-generated data that would pertain to a photo on your iPhone. In this case, this is information that was affixed by a human being.
MS. COMEY: Your Honor, I think I can save us time. I think I told Ms. Menninger the other day we're not planning to offer 332B, at least with respect to that issue, we don't need to resolve that.
JUDGE NATHAN: So let's take them one at a time. 304, which is the one that's been offered. What's the objection?
MS. MENNINGER: Your Honor, with respect to this photograph, there is no witness that will testify when this was taken, if it was prior to the time of the conspiracy, some other time, under what circumstances, and that it hasn't been altered in some way since then. So it is simply a document without a witness to say what it is.
MS. MOE: Thank you, your Honor. I believe the testimony here is that CDs were seized from Jeffrey Epstein's residence, that they were reviewed by the FBI. So with respect to authentication, in terms of offering that these are what we say they are, they are photographs seized from Jeffrey Epstein's residence on CDs. Their relevance is selfapparent, given the contents of the photographs. The relationship between Maxwell and Epstein is central to this case. There has been witness testimony about the timeframe of that relationship, that it began in the early '90s. I think the defense has argued that that terminated during certain time periods. But, in short, I think all of Ms. Menninger's arguments are arguments that they are free to make to the jury but have nothing to do with the question of relevance. These items have been thoroughly authenticated and to the extent the defense wants to offer witnesses about their metadata and make arguments to the jury about what that means or what it doesn't mean, that's for the defense to put before the jury. It has nothing to do with the question of authentication or relevance, which are both low bars that are easily cleared here.
JUDGE NATHAN: So the authentication is these items -- these represent the items that were found in the home during the 2019 search and the relevance is that they show the relationship between Mr. Epstein and Ms. Maxwell.
MS. MOE: Yes, your Honor. Throughout the course of these photographs. I would note, your Honor, with respect to the concern about metadata, it happens often in criminal trials that electronic evidence is seized, authenticated as such, and offered before the jury. If it were the case that evidence could only be admitted in court if the people who wrote the emails or took the photographs or were in the photographs could testify and identify themselves, no such evidence would ever be offered in court. But of course that's not what happens. All we do is we offer law enforcement agents who seized these items and can authenticate them, and if defense wants to make arguments to their relevance or otherwise, that goes to their weight and not their admissibility, and those arguments are for the jury.
MS. MENNINGER: Your Honor, in many criminal cases, there are lots of context over what photographs are admissible and for what purpose. For example, if it was a photograph that was taken inside of a store when there was a robbery that purported to take place in the store, there would be a witness to say that this photograph was taken in or near the events and that we have reason to believe that nothing inside the store has changed. Just showing photographs that are undated, they may be from 1975 for all I know, and showed the two of them together and there is no one to say that it hasn't been altered in the meantime, even the low bar of showing that the photograph is a photograph and without a witness to say it is what it purported to be, I don't think that that is true with respect to what is admissible for a photograph. It's a low bar, but there is not even a single person that can say that this photograph or the ones behind it are what they purport to be.
JUDGE NATHAN: They are what were found in the Epstein home.
MS. MENNINGER: They could be altered documents found within his home, but they're being offered for the truth of the matter in the photograph, that is that there was a close relationship between the two of them, as the government just argued.
JUDGE NATHAN: Overruled.
MS. MENNINGER: Your Honor, with respect to the next document, it doesn't show any relationship. It's a single person.
JUDGE NATHAN: Overruled. It's found in the home of Mr. Epstein.
MS. MENNINGER: Your Honor, with respect to other individuals who haven't testified about the dates on which these photographs were taken or the ages at which they were taken, I don't think that there has been any foundation lead to show that those individuals -- that the photographs are what they purport to be. As I said, they came from a photo shop document file, which means they are, in fact, in a program that is meant to alter photographs.
JUDGE NATHAN: Overruled.
MS. MENNINGER: And with respect to the totality of them, your Honor, there is a cumulativeness problem. You don't need 20 photographs to say what two might just as well say.
MS. MOE: On that score, your Honor, throughout this trial, the defense has repeatedly tried to distance Ms. Maxwell from Mr. Epstein and his affairs and argue that things were compartmentalized. I believe in the cross examination of some witnesses, they repeatedly suggested that she was only a personal assistant. These photographs show their close relationship throughout time and are directly relevant. There is nothing cumulative about that. In fact, it speaks directly to one of the issues at the heart of this case, and for that reason, these photographs are certainly relevant.
MS. MENNINGER: I'm not sure how they show time, your Honor. There are no date stamps on the photographs.
MS. MOE: Your Honor, given the change in hairstyles, the people in the photographs are clearly aging throughout time, I think that relationship and its duration throughout time is evident from the photographs themselves.
JUDGE NATHAN: Overruled. Anything else?
MS. MENNINGER: As to all, your Honor, including the testifying witnesses?
JUDGE NATHAN: I'm sorry.
MS. MENNINGER: Including as to the testifying witnesses --
JUDGE NATHAN: What exhibit number?
MS. MENNINGER: The first one, your Honor, I referred to is 309, and the second is someone who will -- the government will contend is a victim in this case, though not testifying, number 332.
JUDGE NATHAN: 309.
MS. MOE: Yes, your Honor. 309 depicts the witness who testified earlier today as Kate. The jury has met her. This is a photograph of that same person. Again, to the extent the defense has the native file, which we produced in discovery, to the extent they wish to make any arguments about timeframes or metadata, they're free to do so, but a photograph of this person is certainly relevant given the context. With respect to Government Exhibit 332, your Honor, if I could just have one moment.
JUDGE NATHAN: Okay.
MS. MOE: Thank you, your Honor. I just wanted to confirm. With respect to Government Exhibit 332, a cropped version of that photograph which shows only that individual's face has already been offered in evidence and identified by another witness as that individual.
JUDGE NATHAN: So what's the relevance of a duplicate photo?
MS. MOE: Your Honor, it's not a duplicate photograph. The photograph that we used for identification purposes was a cropped photograph of just the face. The full photograph is a topless photograph of this victim. We anticipate that the testimony at this trial would be that that person recruited another victim in this case, and I believe we, in advance of trial, that our view that the person in this photograph is a victim of the charged conspiracy. In particular, other exhibits which we will offer at trial will show flight logs that will show that this person, the same person with her first and last name, traveled on flights with Maxwell and Epstein when she was 17 years old. As the Court will recall, Mr. Alessi testified that he recalled witnessing the defendant meet the same person and asked her to come to the house and give massages. So the fact that Mr. Epstein had a photograph of this person topless is corroborative of that witness testimony and consistent with the evidence at trial that this person, as a minor, was a victim of the charged conspiracy.
MS. MENNINGER: Your Honor, the fact that this lawyer is just now representing to this Court that this is minor is contrary, one, to the metadata on the photo that shows she was not a minor when this photograph was taken, and two, the testimony of Mr. Alessi that he met her in 2001 or 2002, also when she was not a minor. So to put in evidence a photo that they know is not her of a minor, when there is no charged crime with respect to photography in this case, your Honor, is directly contrary to the evidence as the government knows it exists. And I also would like to say with respect to 309, we litigated whether or not we could put in evidence photographs of this witness, and the government called us, I think it was slut shaming when I tried to argue that there were other photographs of this individual that were much like this that she had put out in newspapers, and now they want to put on a photo of her after she's gotten off the stand and not afforded us the opportunity to cross examine her about similar photographs that she has put out.
JUDGE NATHAN: Let's start with 332. Is the government's representation that the individual depicted in this photo is a minor at the time of the photo?
MS. MOE: Your Honor, we made no representations about the metadata of the file of this photo. To be short, in direct, I don't know. There will be testimony at this trial and there has been testimony at this trial that this person was victimized as a minor. In terms of the particular date of this photograph, we're limited by the information we have in the metadata. I believe it's for this reason that the defense had noticed perhaps a metadata expert and the defense will be free to explore that issue. There are of course limitations on metadata and whether it can tell whether a file was saved on a certain date or whether a photograph was taken on a certain date or otherwise. And to the extent the defense wants to put that at issue, they're certainly welcome to do so. In terms of its relevance, it shows that the nature of the relationship between the defendant, Epstein, and this victim was of a sexual nature. For example, when Mr.
Alessi testified about this victim, I believe the cross examination about that was that she was a professional, that she was at Mar-a-Lago, the defendant was only there for a treatment, and I believe there was a lot of -- there were a lot of questions on cross examination designed to suggest that she was a professional masseuse. And if the defense intends to argue that this person was a professional masseuse, it is certainly relevant in response to that argument that, in fact, Epstein had a topless photograph of her in a location that appears to be a tropical island which would be consistent with flight records along those lines. Again, it goes to the relationship between the defendant, Epstein, and this victim, that it was of a sexualized nature, which is consistent with witness testimony. With respect to the particular date of the photograph, that is an issue that the defense is certainly free to explore and put before the jury. I can't make a representation about the exact date because there are limitations on digital forensics.
MS. MENNINGER: Your Honor, the representation was just made that this person was a minor victim, and that representation has been made to this Court on previous indications.
JUDGE NATHAN: Based on the testimony, I don't think the representation was that the picture represented her as a minor.
MS. MENNINGER: -- nature of the relationship. I think the quote just was between my client and her and Mr. Epstein. There is nothing about this photograph that establishes any relationship having to do anything with my client. It's something that was in the possession of Jeffrey Epstein in 2019, and it was taken by any available data in 2002 when she was above the age of consent. I think the 403 problem looms large in this case where we're going to put in a photograph of someone who there is not going to be -- she's not going to testify, your Honor. They don't want her to testify because she has a lot of credibility problems. So they want to put in evidence that she was a victim but without having her get on the stand and testify. So now they want to get in evidence that she had a topless photo and no one's going to say when that photograph was taken. The available evidence on the photo is that it was taken when she was above the age of maturity, which is not a crime, not something my client is charged with, and is not a part of the conspiracy in this case. And I think putting on a photograph like that without any supporting testimony about when it was taken, the circumstances under which it was taken is highly, unduly prejudicial.
MS. MOE: Your Honor, defense counsel is grasping at straws here. This exhibit is plainly relevant. It's consistent with other trial exhibits and I do take issue with the suggestion that I made any misrepresentation with the Court. I certainly have not done that and would not do that, your Honor.
JUDGE NATHAN: 332, the objection is overruled. 309.
MS. MOE: Sorry. With respect to 309, that person is the person who testified this morning as Kate. I unfortunately haven't reviewed the final information recently, so I don't want to make a representation to the Court and it becomes an issue. We're happy to examine it and report to the Court this evening. My memory is the file name for this is her first name.
MS. MENNINGER: And the date was 2002 when she was 25. And she didn't get on the stand and talk about photographs being taken of her. I mean, she didn't mention it. So now we're going to put in a photograph after she's left the stand. And by the way, we were precluded from cross examination about her publicly available photographs of a similar type.
JUDGE NATHAN: I don't understand the parallel. The relevance of this photo is that it was in possession of Epstein, which is different than the relevance that you were offering. I have to compare apples and apples.
MS. MENNINGER: Your Honor, had she testified about the circumstances under which that was made, it may have made it very relevant. We're just not going to have testimony about the photograph having been made when it was made, how old she was, et cetera, and then once she's off the stand, introduce a photo of her that could have been authenticated through her, but was not.
MS. STERNHEIM: May I have a moment, Judge?
JUDGE NATHAN: You may.
MS. STERNHEIM: Judge, if I may, on the issue of this picture and the issue of nudity, I was essentially precluded from raising issues concerning nudity, and a witness who was brought up in the South of France, who was quoted as saying she is comfortable with being nude was an area ripe for cross examination if the government had not strategically decided not to use this photograph when the witness was on the stand. Now, if they will permit the witness to be brought back, that's a whole different issue, but this idea that they can just put in evidence after a witness is off the stand and claim that there is some strategic reason why it's okay, it has deprived us of cross examination, which is already compromised by the rulings repeatedly concerning the victims or accusers having certain rights, and they are coming into tension with the rights of our client to have an aggressive defense put forth.
MS. MOE: Your Honor, the defense has not been compromised in any way. I want to unpack the facts here --
JUDGE NATHAN: Just to be clear, we're talking about exhibit 309.
MS. STERNHEIM: I know that.
JUDGE NATHAN: I take each objection as it comes. You make your record. It doesn't help analyze it to just talk about larger issues, which I don't know what you're talking about. So each objection as it comes. I'm looking at 309. Your objection is that by not putting it in when the witness is on the stand, you can't cross examine the witness about the context of the photo. Do I have it right?
MS. STERNHEIM: That is correct.
MS. MOE: Yes, your Honor. So, as defense counsel knows, we showed this photograph to Kate during an interview in September of this year. She identified that as herself and remembered it. Defense counsel has had that note. If they wanted to ask her about this exhibit, that exhibit has been marked in evidence for eight weeks now. This is not a surprise in any way. It's not our practice, frankly, your Honor, to humiliate women with naked photographs of themselves when they're in a courtroom, and there is no need for it either, given its obvious relevance.
JUDGE NATHAN: I'll consider 309. Anything else?
MS. MENNINGER: Not on these photos, your Honor.
JUDGE NATHAN: Any other matters to take up?
JUDGE NATHAN: Thank you. I will see you at 8:45.
(Adjourned to December 7, 2021 at 8:45 a.m.) * * *