PrinceEvidence-Brief-03

No. 21-778

IN THE

SUPREME COURT OF THE UNITED STATES

ALEXANDER KENSINGTON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTEENTH CIRCUIT

BRIEF FOR PETITIONER

Team 8P

Counsel for Petitioner

Team 8P - Original

QUESTIONS PRESENTED

I. Can the subject of a search warrant assert their Fifth Amendment privilege against self-

incrimination and refuse to unlock a cellphone with their fingerprint when that action

would impliedly assert facts of ownership and control, even when the police have an

otherwise valid search warrant for the phone?

II. Under the Federal Rules of Evidence, Rules 702 and 403, can expert testimony that

analyzes the physiological and psychological limitations of a particular eyewitness

identification be admitted into evidence?

III. Under the Federal Rules of Evidence, Rule 615, can a witness who is not permitted by

the rule to hear another witness’s testimony read the transcript of that witness’s

testimony?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................................... ii

TABLE OF AUTHORITIES .......................................................................................................... v

OPINION BELOW ......................................................................................................................... 1

STATUTORY AND CONSTITUTIONAL PROVISIONS ........................................................... 1

STATEMENT OF THE CASE ....................................................................................................... 1

SUMMARY OF THE ARGUMENT ............................................................................................. 3

ARGUMENT .................................................................................................................................. 7

I. Compelling a subject of a warrant to use their fingerprint to unlock a smartphone

is violative of the Fifth Amendment privilege against self-incrimination because the action

itself is, like the use of a polygraph, a testimonial statement due to the implied facts asserted

through the conduct. ..................................................................................................................... 7

A. Compelling the use of Touch ID to unlock a phone is testimonial in nature because it

forces the Defendant to demonstrate control and accept ownership over the phone. ..................... 8

i. Using Touch ID is testimonial under the Fifth Amendment because it asserts implied facts

of ownership and control. ............................................................................................................... 9

ii. Using Touch ID as a substitute for a four-digit passcode should not constitute a waiver of

a defendant’s Fifth Amendment privilege not to self-incriminate. ............................................... 11

B. The foregone-conclusion exception to the Fifth Amendment is inapplicable here because

the Government could not demonstrate that it knew of the contents of the phone at the time of the

warrant application or the time of the seizure. .............................................................................. 13

i. The Government had no knowledge of the search at the time of warrant application, which

prohibits the application of the foregone-conclusion exception. .................................................. 13

ii. Privacy and dignitary interests do not support extending the foregone conclusion exception

to the compelled production of an unlocked smartphone. ............................................................ 17

II. Expert testimony on eyewitness identifications is admissible, under Federal Rules

of Evidence 702 and 403, when it is helpful to the jury, presented by a qualified expert, and

relevant to proceedings. .............................................................................................................. 18

A. The Fourteenth Circuit misapplied Daubert by ignoring Kumho Tire’s holding, applied

dispositive weight to inapplicable reliability factors, and misinterpreted the requirements of

“helpful to the jury.” ..................................................................................................................... 19

i. An expert may be qualified in a non-scientific field. ........................................................ 20

ii. Daubert eschews the requirement of a formulaic analysis that compels a “generally

accepted practice” in favor of “a flexible” approach to assess reliability. ................................. 21

iii. Expert testimony is helpful to the jury when it presents “a valid scientific connection to the

pertinent inquiry.” ........................................................................................................................ 24

B. Rule 403 does not preclude Dr. Closeau’s testimony because his testimony has a high

probative value and does not unduly prejudice the prosecution. .................................................. 25

III. Federal Rule of Evidence 615 forbids sequestered witnesses from learning of each

other’s testimony while outside of courtroom proceedings. .................................................... 27

A. This Court should adopt a purposive reading of the rule instead of a textual approach. ..

....................................................................................................................................... 28

B. Allowing Andrew Gerber’s testimony, in violation of the sequestration order, prejudices

the Petitioner because it impermissibly reinforced Holzer’s eyewitness testimony. .................... 31

CONCLUSION ............................................................................................................................. 33

TABLE OF AUTHORITIES

CASES

Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (11th Cir. 1997) ............................................ 21

Carpenter v. United States, 138 S. Ct. 2206 (2018) ..................................................................... 17

Commonwealth v. James, 117 N.E.3d 702 (Mass. 2019) ............................................................. 18

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) ............................................... passim

Doe v. United States, 487 U.S. 201 (1988) ..................................................................................... 9

Fisher v. United States, 425 U.S. 391(1976) ................................................................................ 13

Geders v. United States, 425 U.S. 80 (1976) ................................................................................ 29

In re Application for a Search Warrant, 236 F. Supp. 3d 1066 (N.D. Ill. 2017) ......................... 19

In re Residence in Oakland, California, 354 F. Supp. 3d 1010 (N. D. Cal. 2019) ....................... 10

Kumho Tire v. Carmichael, 526 U.S. 137 (1999) ....................................................... 20, 21, 22, 23

Kyllo v. United States, 533 U.S. 27 (2001) ................................................................................... 17

Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981) ......................................... 29

Miranda v. Arizona, 384 U.S. 436 (1966) .................................................................................... 16

Old Chief v. United States, 519 U.S. 172 (1997) .......................................................................... 26

Riley v. California, 573 U.S. 373 (2014) ................................................................................ 15, 17

Schmerber v. California, 384 U.S. 757 (1966) ................................................................... 9, 10, 11

Seo v. State, 148 N.E.3d 952 (Ind. 2020) ...................................................................................... 18

State v. Breaux, 110 So. 3d 281 (4th Cir. 2013) ........................................................................... 32

United States v. Brown, 547 F.2d 36 (3d Cir. 1976) ..................................................................... 29

United States v. Calhoun, 510 F.2d 861 (7th Cir. 1975) .............................................................. 32

United States v. Djibo, 151 F. Supp. 3d 297 (E.D.N.Y. 2015) ..................................................... 19

United States v. Doe, 465 U.S. 605 (1984) ................................................................................... 10

United States v. Doe, 670 F.3d 1335 (11th Cir. 2012) .................................................................. 14

United States v. Fridman, 974 F.3d 163 (2d Cir. 2020) ............................................................... 13

United States v. Friedman, 854 F.2d 535 (2d Cir. 1988) .............................................................. 29

United States v. Hubbell, 530 U.S. 27 (2000) ..................................................................... 9, 10, 13

United States v. Jimenez, 780 F.2d 975 (11th Cir. 1986) ............................................................. 29

United States v. Robertson, 895 F.3d 1206 (9th Cir. 2018) ........................................ 28, 29, 30, 31

United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) ............................................................ 28

United States v. Wade, 388 U.S. 218 (1967) ................................................................................ 27

United States v. Warrant, No. 19-MJ-71283-VKD-1, 2019 WL 4047615 (N.D. Cal. Aug 26,

2019) ......................................................................................................................................... 17

United States v. Womack, 654 F.2d 1034 (5th Cir. 1981) ............................................................ 32

United States v. Wright, 431 F. Supp. 3d 1175 (D. Nev. 2020) .................................................... 10

United States v. Wylie, 919 F.2d 969 (5th Cir. 1990) ................................................................... 32

OTHER AUTHORITIES

Fed. R. Evid. 615 (Notes of Advisory Committee on 1972 Proposed Rules) .............................. 29

Kellen Browning, Hundreds of Businesses, From Sweden to U.S., Affected by Cyberattack, N.Y.

TIMES (July 2, 2021) ................................................................................................................. 18

Kendahl Shoemaker Luce, Note, White Collar Crime in the 21st Century: When Corporations

and Individuals Collide: Incentivizing Adequate Cybersecurity: The Need for a Uniform

Federal Cybersecurity Regulatory Framework and Corporate Liability, 2 BELMONT CRIM L.J.

176 (2019). ................................................................................................................................ 18

Richard E. Redding, Psychology and the Law: How Common-Sense Psychology Can Inform Law

and Psycholegal Research, 5 U. CHI. L. SCH. ROUNDTABLE 107, 123 (1998) ......................... 21

RULES

Fed. R. Evid. 105 .......................................................................................................................... 26

Fed. R. Evid. 403 .......................................................................................................................... 26

Fed. R. Evid. 615 .......................................................................................................................... 28

Fed. R. Evid. 702 .......................................................................................................................... 20

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V...................................................................................................................... 9

OPINION BELOW

The judgment of the United States Court of Appeals for the Fourteenth Circuit, Alexander

Kensington v. United States of America, No. 20-1705, was entered June 16, 2020, and may be

found in the Record. (R. 55–66.)

STATUTORY AND CONSTITUTIONAL PROVISIONS

This case is an appeal from a verdict under 18 U.S.C. §§ 844(f)(1), 844(n), and

924(c)(1)(B)(ii). This appeal concerns alleged violations of the Defendant’s Fifth Amendment

privilege against self-incrimination. U.S. Const. amend V. Additionally, this case involves the

Federal Rules of Evidence, Rules 702, 403, and 615.

STATEMENT OF THE CASE

On September 20, 2019, Lily Holzer, an eyewitness to the alleged events, claims to have

seen a man she later identified as Alexander Kensington (the “Defendant”) “run towards the front

of [a] vehicle, trip, and fall, [and then rise] and [light] a Molotov cocktail . . . [and] shout, “Fossil

Fools!” (R. 5.) Holzer stated that “the rest of the afternoon was ‘fuzzy’ and she does not remember

how she got home.” (R. 5.)

As a result, a search warrant was issued for the Defendant on October 8, 2019. (R. 13.) The

search warrant included instructions to seize “[a] silver Apple iPhone 8 cellular telephone,

belonging to ALEXANDER KENSINGTON.” (R. 13.) The search warrant did not specify with

particularity any documents to be obtained from the phone. See id.

Mr. Kensington was pulled over in a traffic stop when the FBI executed the warrant on

October 9, 2019. (R. 56.) The agents “pressed Defendant’s right index finger against the phone’s

home button, ‘unlocking’ the contents of the cell phone.” (R. 56.) Subsequently, a search of the

phone “revealed text messages and search histories which demonstrated that Defendant had been

researching explosive devices and encouraging violence in support of his environmental activist

goals.” (R. 56.)

On October 20, 2019, Kensington was identified by Holzer, taken into custody, and

indicted by the State in this action. (R. 17, 56.) Prior to trial, Kensington moved to have Dr. Jack

B. Closeau admitted as an expert witness in the field of eyewitness identifications. (R. 33.) Dr.

Closeau has his Ph.D in Psychology and is licensed to practice in the State of Boerum. (R. 29–30.)

Dr. Closeau has testified as a qualified psychology expert in over 120 cases. (R. 30.) Dr. Closeau

has received numerous honors and awards, published many articles on the unreliability of

eyewitness identifications, led a research laboratory on psychology and memory at Beorum

University, and lectured at many academic institutions and professional associations. (R. 30.) Dr.

Closeau intended to testify, among other research driven details, as to the “stress and other

aggravating circumstances [that] have a detrimental effect on memory” and may undermine

eyewitness accuracy without diminishing the eyewitness’s confidence in their identification. (R.

28.) The United States District Court for the District of Boerum, however, refused to admit Dr.

Closeau as an expert. (R. 57.)

Additionally, Kensington moved to have the evidence obtained from the cell phone

suppressed. (R. 57.) The District Court denied Kensington’s motion because the court found that

the use of Defendant’s biometric features to unlock the contents of his cellphone did not violate

Defendant’s right against self-incrimination under the Fifth Amendment. (R. 27.)

At trial, the District Court issued an order to sequester the witnesses, under Rule 615. (R.

57.) While government witness Andrew Gerber was kept out of the courtroom during Lily Holzer’s

testimony, Gerber was able to obtain a transcript of her testimony, which he read. (R. 57.) Gerber’s

testimony subsequently reflected details from Holzer—details such as, the “Fossil Fools” slogan,

and the suspect’s limp—that Gerber’s prior statements to law enforcement did not reference. (R.

66.)

Post-conviction, Kensington filed a motion for either a directed verdict or a new trial based

on Gerber’s violation of the Rule 615 sequestration order. (R. 57.) The District Court found that

Andrew Gerber read Lily Holzer’s testimony during the court’s lunch recess on the day that Gerber

testified, but under a textual reading of Rule 615, denied Kensington’s motion. (R. 54, 57.)

Subsequently, Kensington timely appealed the District Court’s decision to the United

States Court of Appeals for the Fourteenth Circuit. (R. 55, 57.) The Fourteenth Circuit affirmed

the District Court’s rulings because it found that (1) biometric data obtained through compulsion

is not a testimonial statement under the Fifth Amendment; (2) expert witness testimony on

eyewitness identifications is inadmissible because it fails to comply with Daubert and Rule 702;

and (3) only the explicit restrictions contained in a Rule 615 order control the behavior of a

sequestered witness. (R. 56.) Kensington timely filed a petition for writ of certiorari to this Court,

which was granted on November 15, 2021. (R. 67.)

SUMMARY OF THE ARGUMENT

Every American citizen has the right to secure their phone—and with it what this Court

has referred to as “the privacies of life”—in the manner of their choosing without risking waiver

of their fundamental Fifth Amendment right against self-incrimination. Parties to a case have the

right, under our country’s laws, to bring in an expert witness to testify on medical and scientific

facts that the common jury would not, without aid, understand. Yet this is a case that challenges

those very promises. The Fourteenth Circuit’s ruling favors an ease-of-policing approach while

sidestepping the complexities inherent with assuring fundamental, constitutional rights to the

accused.

We respectfully request that this Court reverse the Fourteenth Circuit and remand this case

for a new trial because the court below (A) allowed into evidence materials contaminated by

compelled testimony under the Fifth Amendment right against self-incrimination, (B) prevented a

qualified expert witness from testifying about scientific information essential to the jury’s

understanding of a key eyewitness, and (C) allowed a witness to testify who had violated a Rule

615 sequestration order.

A. The Fifth Amendment Privilege Against Self-Incrimination

The Fifth Amendment guarantees citizens the privilege not to self-incriminate. This Court

has found that self-incrimination can be speech or action that implies an assertion of fact. In this

case, the police forced the Defendant to unlock a phone using his fingerprint, which impliedly

asserted the fact of the Defendant’s ownership and control over the phone—and most pressingly,

over any discovered content on the phone. But this is not just about the rights of Mr. Kensington -

this is about the rights of all citizens of the United States. The Fourteenth Circuit’s decision would

allow police officers to use a phone that they know has unlawful content by checking to see which

suspect’s finger unlocks the magic phone. Or, alternatively, which phone is owned by a suspect

based on which phone responds to that suspect’s finger. Either version would empower the police

to gain implied statements from suspects through compulsion. And that is against the promise of

the Fifth Amendment.

This Court has held that a lie detector test may be testimonial in nature because it can assert

implied facts through physiological responses. Much like a polygraph test, an individual cannot

control the interaction between his body and the Touch ID system, and, if and when a reaction

occurs, that action conveys information: for a polygraph, a positive or a negative, and the same is

true for a Touch ID system. Either it opens or it does not. But through that positive or negative—

through that opening or not opening—the information is conveyed: the subject has (or has not)

exerted prior control over that device by setting up Touch ID.

This Court has held that the act of producing documents can be testimonial in nature

because having the documents can show ownership and control. The same is true here. By

unlocking the phone, the subject shows the same dominion and control over the phone’s contents.

In this case, by forcing the Defendant to unlock the phone, the Government was able to

gain evidence that the Defendant had control over the “search histories” regarding “explosive

devices.” Without compelling the Defendant to unlock the phone, even if the same “search

histories” had been uncovered by a search of the phone, the Government would not have had the

proof that the Defendant had personal control over the device and, inferably, over the “search

histories.”

B. Qualified Experts under Rule 702

The Federal Rules of Evidence, enacted by Congress, allow parties to bring qualified expert

witnesses before the court to testify on issues that, beyond the ken of a layperson, require expertise

that is helpful to the jury in rendering a verdict. The Rules do not limit these experts from testifying

about other witnesses. In fact, expert testimony commonly incorporates and analyzes information

from other witnesses.

In this case, an eyewitness saw a traumatic, explosive event, and then lost her memory for

an extended period of time. A month later, she allegedly identified the Defendant. Under the rules,

an expert witness is allowed to provide medical, scientific, and other expertise to the jury to help

the jury understand the psychological and physiological ramifications of being in close proximity

to an explosion and losing one’s memory. These are not common experiences of a layperson, and

it is reasonable to allow an expert to testify—not to the “credibility” of the witness, but to the

science of the witness’s brain’s ability to accurately recall information. If an expert witness is

qualified and can provide expertise that is helpful to the jury, and that expertise has probative value

that is not substantially outweighed by the potential for jury misuse, that expert should be permitted

to testify.

First, this Court, under Kumho Tire, expanded the Daubert standard beyond purely

scientific expertise. But the Fourteenth Circuit predicated its holding on the fact that Dr. Closeau’s

testimony was not scientific. This is in direct conflict with this Court’s reasoning in Kumho Tire.

Second, Dr. Closeau’s expertise is researched, repeatable, published, and well regarded—this

makes this research reliable under the flexible Daubert standard. The, Fourteenth Circuit applied

the wrong standard for assessing reliability, and ignored the flexible standard set by this Court.

Third, Dr. Closeau’s testimony would be helpful for the jury because it applies a scientific, studied

context to trauma and memory loss. And fourth, a Rule 403 analysis does not preclude allowing

Dr. Closeau to testify because Dr. Closeau is the only expert providing any information to the jury

as to the physical and psychological limitations to memory recall during trauma and after memory

loss—that makes the probative value of Dr. Closeau’s testimony incredibly high.

C. Sequestering Witnesses under Rule 615

The Federal Rules of Evidence declare, under Rule 615, that when a witness is sequestered

outside of the court, prior to testimony, that witness should not be allowed to “hear” the prior

testimony. Yet, the Fourteenth Circuit incorrectly held that the witness is permitted to “read” the

prior testimony.” This is a distinction without merit.

The purpose of the rule, as explained by this Court, is to prevent the witness from

bolstering, changing, or pivoting their testimony. And that is exactly what happened in this case:

the witness who read a prior witness’s testimony, delivered a particular phrase that witness had

never before said: “Fossil Fool.” Allowing a witness to read testimony that the witness cannot hear

contradicts the purpose of Rule 615.

Allowing Andrew Gerber’s testimony to stand, after violating his sequestration order, also

prejudices the Petitioner because it impermissibly reinforces Lily Holzer’s eyewitness testimony.

The District Court found that Gerber impermissibly read the trial testimony of Lily Holzer. Gerber

incorporated specific details in his testimony that were notably absent from his interview with the

FBI, and which mirrored the testimony of Lily Holzer’s testimony. By violating the sequestration

order, Gerber cast doubt on the veracity of his testimony, which strongly informed Defendant’s

conviction.

Because of these errors of law, we respectfully request that this Court reverse the

Fourteenth Circuit’s ruling and remand this case for a new trial that excludes the content found on

the Defendant’s cell phone and the corrupted witness testimony, while requiring the court below

to allow Dr. Closeau to testify to the implications of memory loss on a witness’s ability to identify

a person.

ARGUMENT

I. Compelling a subject of a warrant to use their fingerprint to unlock a

smartphone is violative of the Fifth Amendment privilege against self-

incrimination because the action itself is, like the use of a polygraph, a

testimonial statement due to the implied facts asserted through the

conduct.

The Fourteenth Circuit incorrectly held that biometric data obtained through compulsion

is not a testimonial statement under the Fifth Amendment. Compelling a subject to use his or her

finger to unlock a phone (“Touch ID”) is, like a polygraph, testimonial in nature and thus violative

of the Fifth Amendment privilege against self-incrimination because it asserts implied facts. Under

the Fifth Amendment, “no person . . . shall be compelled in any criminal case to be a witness

against himself.” U.S. Const. amend. V. The Fifth Amendment “protects an accused only from

being compelled to testify against himself, or otherwise provide the State with evidence of a

testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761 (1966).

“Compelled testimony that communicates information that may ‘lead to incriminating evidence’

is privileged even if the information itself is not inculpatory.” United States v. Hubbell, 530 U.S.

27, 38 (2000) (quoting Doe v. United States, 487 U.S. 201, 208, n.6 (1988)).

Here, Respondent concedes that Kensington was compelled to unlock the phone. (R. 56.)

And that the compelled testimony may have led to incriminating evidence. The only remaining

question, therefore, is whether the evidence was of a “testimonial or communicative nature.”

The act of engaging the Touch ID system conveys ownership over a device and, like the

physiological response to a polygraph, is testimonial in nature. The Government cannot claim the

foregone-conclusion exception to the Fifth Amendment privilege against self-incrimination when

it was unaware of the existence of the evidence prior to conducting the search. Using Touch ID as

a substitute for a four-digit passcode—which cannot be compelled—should not constitute an

effective waiver of a defendant’s Fifth Amendment privilege against self-incrimination because it

is a technological distinction not deserving of right forfeiture, and it is against public policy to

allow superior security and privacy technology to diminish individuals rights. Therefore, the

decision of the Fourteenth Circuit should be reversed because compelling Petitioner to use his

fingerprint to unlock a smartphone was violative of his Fifth Amendment privilege against self-

incrimination.

A. Compelling the use of Touch ID to unlock a phone is testimonial in nature

because it forces the Defendant to demonstrate control and accept ownership

over the phone.

Compelling a subject to use Touch ID to unlock a phone is testimonial in nature because it

forces a defendant to demonstrate control and ownership over the device and elicits a response that

is essentially testimonial. “[A]cts that imply assertions of fact” are testimonial. Hubbell, 530 U.S.

at 36 n.19 (2000) (citing United States v. Doe, 465 U.S. 605, 613, n.11 (1984)) (“[T]he Fifth

Amendment privilege against self-incrimination applies to acts that imply assertions of fact.”).

This Court should find that the use of Touch ID is testimonial for two reasons: (i) because the use

of Touch ID implies an assertion of fact, which in turn is testimonial, and thus privileged under

the Fifth Amendment, and (ii) because the needs of the public, industry, and government security

support extending Fifth Amendment rights to include Touch ID use.

i. Using Touch ID is testimonial under the Fifth Amendment because it asserts

implied facts of ownership and control.

Technological devices that elicit unintentional physiological responses—such as lie

detectors—can render actions testimonial in nature. See Schmerber v. California, 384 U.S. 757,

764 (1966). District courts have analogized Touch ID technology with lie detector tests and have

held that the compelled unlocking of a smartphone using biometric data is a testimonial statement.

See, e.g., United States v. Wright, 431 F. Supp. 3d 1175, 1187 (D. Nev. 2020); In re Residence in

Oakland, California, 354 F. Supp. 3d 1010, 1016 (N. D. Cal. 2019). Being compelled to produce

documents also “may have a compelled testimonial aspect.” Hubbell, 530 U.S. at 37 (2000). In

fact, “’the act of production’ itself may implicitly communicate ‘statements of fact.’” Id. at 37.

The “act of producing . . . documents” is testimonial because the act affirms “that the papers

existed, were in his possession or control, and were authentic.” Id. at 37, 40.

Here, the act of unlocking the phone confirms that the phone was Kensington’s, and, just

as this Court explained in Hubbell, that is testimonial in nature. Using a fingerprint to unlock the

cellphone was not just a physical act: it was an act that implied an assertion of fact. The successful

unlocking of the cellphone posited that the Defendant possessed or controlled the phone, that he

was therefore responsible for the contents within, and tit revealed the contents of his mind that he

had previously set up the Touch ID feature.

In contrast, taking a subject’s blood to determine its Blood Alcohol Concentration (BAC)

is not testimonial in nature. Schmerber, 384 U.S. at 764–65. This Court, discussing the distinction

between compelled testimony and “real or physical evidence,” differentiated acts that produce

static, “real or physical evidence”—such as “fingerprinting, photographing, or measurements,” as

well as compelling a person to “write or speak for identification, to appear in court, to stand, to

assume a stance, to walk, or to make a particular gesture.” Id. at 764. The Schmerber Court

predicated its holding on the fact that “the results of the test [depended] on chemical analysis and

on that alone.” Id. at 765. The Court therefore held that measurements—whether physical,

observable, or chemical—about the human body do not violate the Fifth Amendment, even when

compelled. See id. at 764–65. But the Court carefully distinguished those observable qualities from

compelling action that is “relating to some communicate act or writing by the petitioner.” Id. at

765.

Forcing a subject to unlock a phone through Touch ID is an entirely different premise than

administering a BAC test because the test is about quantifying an observation in the defendant’s

body—like any other physical, corporeal evidence—and compelling a fingerprint is about

unlocking a device and ascertaining the relationship between the defendant and the device. Taking

a sample of a defendant’s blood for a BAC analysis examines the scientific composition of the

body by observing a chemical detail that the naked eye cannot detect. It uses science—“chemical

analysis”—to enhance the human sense. A detective can observe and count the number of scratches

on a body—that is not testimonial; however, a detective cannot count the amount of alcohol in the

bloodstream. This requires a test.

But no amount of counting, measuring, photographing, or blood tests visited upon a

defendant’s body will render access to a phone through Touch ID permissable. Because what is

being done here is not about analyzing or quantifying the defendant’s body; it is about using the

defendant’s body to gain information about the defendant’s relationship with a particular object.

And here, a key piece of evidence that the Government relied upon were the “search histories

which demonstrated that Defendant had been researching explosives devices.” (R. 56.) The search

histories themselves may have existed without Kensington unlocking the phone, but the act of

unlocking the phone provided evidence to establish that Kensington controlled the phone, and thus

the sole evidence the Government relied upon to show that “Defendant had been researching

explosive devices.” Kensington’s—compelled—act implied the assertion of fact that the search

history belonged to him, and that information was used to convict. This Court should reverse the

Fourteenth Circuit and remand the case for a new trial where the evidence obtained by this Fifth

Amendment violation is excluded.

ii. Using Touch ID as a substitute for a four-digit passcode should not

constitute a waiver of a defendant’s Fifth Amendment privilege not to self-

incriminate.

Using a Touch ID, or a four-digit passcode, to unlock a smartphone is a distinction without

a purpose when it comes to the Fifth Amendment privilege not to self-incriminate. This Court

should, as a matter of public policy, encourage the advancements of security and privacy that come

with advancements in technology. The constitutional foundation underlying the Fifth Amendment

privilege against self-incrimination is “the respect a government—state or federal—must accord

to the dignity and integrity of its citizens.” Miranda v. Arizona, 384 U.S. 436, 460 (1966).

The Fourteenth Circuit’s decision cuts against the benefits of expanding privacy and

security technology by creating an ambiguity for law enforcement to exploit. Providing biometric

data to law enforcement is no different than providing a numeric passcode. United States v.

Warrant, No. 19-71283-1, 2019 WL 4047615 (N.D. Cal. Aug 26, 2019). As this Court stated in

Riley v. California, cellphones have become such "a pervasive and insistent part of daily life that

the proverbial visitor from Mars might conclude they were an important feature of human

anatomy." Riley, 573 U.S. at 385. Based on this rationale, protecting access to cellphones—as

well as individuals’ rights concerning their access—is of paramount purpose.

This Court stated in Carpenter v. United States that, “as technology has enhanced the

Government’s capacity to encroach” into the lives and privacy of citizens, this Court must seek to

“assure preservation of [the] degree of privacy against government that existed” when the

Constitution was adopted. Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018). Smartphones

are integral to modern life and contain a limitless scope of information concerning the privacy and

security of individuals, their employers, and the United States. Following Carpenter and Riley,

protections under the Fifth Amendment should not be eroded by advancements in security and

technology.

Fifth Amendment rights must persist and evolve to include technological advances in

privacy and security because national security and the economy are at stake. Both national security

and critical elements of this country’s infrastructure are vulnerable to cyber security breaches.

These breaches are often caused by security breaches of individuals.

To follow the Fourteenth

See Kendahl Shoemaker Luce, Note, White Collar Crime in the 21st Century: When Corporations and Individuals

Collide: Incentivizing Adequate Cybersecurity: The Need for a Uniform Federal Cybersecurity Regulatory

Framework and Corporate Liability, 2 BELMONT CRIM L.J. 176, 179 (2019).

Kellen Browning, Hundreds of Businesses, From Sweden to U.S., Affected by Cyberattack, N.Y. TIMES (July 2,

2021), https://www.nytimes.com/2021/07/02/technology/cyberattack-businesses-ransom.html.

Circuit would mean effectively requiring individuals to waive Fifth Amendment protections in

order to adopt new, superior technology, thus deterring individuals from updating to advanced

security technology that would insulate society from these harms.

B. The foregone-conclusion exception to the Fifth Amendment is inapplicable

here because the Government could not demonstrate that it knew of the contents

of the phone at the time of the warrant application or the time of the seizure.

The foregone-conclusion exception to the Fifth Amendment is inapplicable to these facts

because the Government cannot prove and has not asserted that it knew of the contents of

Defendant’s phone at the time of warrant application or seizure, the Government cannot prove that

it knew the defendant had control over the unidentified documents, and the demonstration of

control, by the defendant over the documents in question, added substantive evidence to the

Government’s case. The foregone-conclusion doctrine, as articulated by this Court in Fisher v.

United States, establishes an exception for testimonial evidence that would normally be protected

by the Fifth Amendment when the evidence “adds little or nothing” to a case against a defendant.

425 U.S. 391, 411 (1976). The foregone-conclusion doctrine (i) does not apply under this Court’s

precedent and (ii) should not be extended to apply as it undermines the public value of Fifth

Amendment protections.

i. The Government had no knowledge of the search at the time of warrant

application, which prohibits the application of the foregone-conclusion

exception.

The rule, as expounded upon by the Second Circuit—which the Fourteenth Circuit relied

on below—is that the exception applies if the Government establishes “’with reasonable

particularity’ its knowledge as to ‘(1) existence of the documents, (2) the taxpayer’s possession or

control of the documents[,] and (3) the authenticity of the documents.’” United States v. Fridman,

974 F.3d 163, 174 (2d Cir. 2020). But “[t]he Government cannot cure [a lack of prior knowledge

about a particular document] through the overbroad argument that a [person] such as [the subject]

will always possess general business . . . records that fall within the broad categories described in

this subpoena.” Hubbell, 530 U.S. at 45.

When the Government is already aware of the “location, authenticity, and existence of the

documents,” the foregone-conclusion exception may apply. Fisher, 425 U.S. at 411. In Fisher, the

defendants were being investigated for liability under federal income tax law and were subpoenaed

for documents that were used to prepare their tax returns. Id. at 394. Defendants appealed and

argued that turning over the documents was a testimonial act, and therefore would violate their

Fifth Amendment rights. Id. at 395. The Fisher Court held that because the Government already

knew the location, authenticity, and existence of the documents, the information gained was

therefore a foregone conclusion, and the actual production of the documents would add little or

nothing to the Government’s case. Id. But see Hubbell, 974 U.S. at 44–45 (stating that a key factor

to the Fisher outcome was that “the Government already knew that the documents were in the

[subject’s] possession and could independently confirm their existence and authenticity through

[other parties] who created them”).

The Fridman Court stated that the Government’s proof of knowledge of the document’s

existence could be accomplished by requesting “customary account documents related to financial

accounts that [the Government] knew existed.” Id. at 175. The Fridman Court explained that while

the “Government is not required to have actual knowledge of the existence and location of each

and every responsive document,” the Government is required to explain, “with reasonable

particularity,” the type of documents and information it is looking for in order for the foregone-

conclusion exception to apply. Id. at 174–75. And in order to satisfy the control requirement of the

foregone-conclusion exception, the Government must show that it had “knowledge of the physical

possession of the requested documents.” Id. at 175. In Fridman, the Government could “prove it

kn[ew] that an individual control[ed] the disposition of assets in an account, [and therefore it]

follows that that individual control[ed] the requested documents associated with that account.” Id.

Likewise, the Eleventh Circuit has held that when the Government does not know the

location or existence of files on a hard drive, it cannot rely on the foregone-conclusion exception

to cure a Fifth Amendment violation. See United States v. Doe, 670 F.3d 1335, 1348–49 (11th Cir.

2012). In Doe, the defendant was served with a subpoena to produce the unencrypted contents

located on hard drives. Id. at 1337. The Doe Court held that compelling the defendant to unlock

the encryption would be compelling testimony and violative of the Fifth Amendment. Id. at 1346.

And when the Government asserted the foregone-conclusion exception as a defense to this Fifth

Amendment violation, the Doe Court rejected the Government’s argument because the

Government did not know whether any files actually existed or their location on the hard drives.

Id.

Here, unlike in Fisher, the Government was not aware of the specific search records, what

they were searching, where they were located, or who controlled the search. (See R. 13.) By

compelling the Defendant’s testimonial conduct, the Government was able to find documents it

was unaware of while establishing evidence that the Defendant was in control. (See R. 56.)

Knowing the location of a cell phone is not the same thing as knowing the location,

authenticity, and existence of the documents on the cell phone. The Fourteenth Circuit erred by

reading the word “phone” in substitution for the word “documents” in the analysis. A phone is

analogous to a filing cabinet, containing many documents, rather than a document itself. See Riley

v. California, 573 U.S. 373, 395–96, 403 (2014) (“Modern cell phones are not just another

technological convenience. With all they contain and all they may reveal, they hold for many

Americans ‘the privacies of life.’"). A phone, alone, lacks the specificity required by the Second

Circuit in Fridman. Here, the Government knew of Kensington’s phone, but the Government did

not know that it would uncover “search histories” covering “explosive devices.” (R. 56.) The

Government used the evidence of Kensington’s control over the phone to establish that this was

the Defendant’s search history, in particular. The Government cannot demonstrate that it knew of

the existence of these search histories either at the time the warrant was issued or at the time the

search was conducted.

And here, just as this Court asserted in Hubbell, the Government cannot cure its lack of

knowledge at the time of the search warrant by asserting that, generally, search histories exist on

phones and may provide fruitful evidence. Thus, the discovery of search histories on Kensington’s

phone, that the Government asserted was the product of Kensington’s ownership and control, was

not a “foregone conclusion” under this Court’s holding in Hubbell. Additionally, this analysis

holds true under both the Second and Eleventh Circuits’ versions of the foregone-conclusion

exception: the Government did not know of the existence of these records and cannot now use

Defendant’s testimonial conduct to demonstrate control over those documents by the Defendant.

Ultimately, evidence obtained through the search of the phone must be excluded because

the act of compelling the Defendant to unlock the phone constituted a testimonial act. Unlocking

the phone was an implied assertion of control over the documents and search histories—documents

and search histories that the Government did not know existed when the search warrant was

created. Thus, the Government cannot rely upon the foregone-conclusion exception. And, under

this Court’s holding in Hubbell, the evidence obtained in connection with this Fifth Amendment

violation must be excluded. Hubbell, 530 U.S. at 42–43 (holding that documents are inadmissible

after a Fifth Amendment violation and cannot be admitted as though they “appear[ed] in the

prosecutor’s office like ‘manna from heaven’”). Thus, this Court should reverse the decision of

the Fourteenth Circuit because the police action in question violated the Fifth Amendment.

ii. Privacy and dignitary interests do not support extending the foregone

conclusion exception to the compelled production of an unlocked

smartphone.

Extending the foregone conclusion doctrine to the compelled production of an unlocked

smartphone would be contrary to public policy, as it would give law enforcement access to a

seemingly infinite amount of information without the proper consideration for an individual’s

dignitary and constitutional privacy interests.

The Supreme Court of Indiana analyzed the foregone conclusion doctrine in relation to a

defendant being required to unlock a cellphone for the police. Seo v. State, 148 N.E.3d 952, 954

(Ind. 2020). The court noted that surrendering the unlocked phone would communicate that the

defendant knew the password; the files on the device exist; and the defendant possessed those files.

Id. at 957. Compelling the defendant to unlock her phone for the police would therefore

communicate certain facts, the production of which would be nontestimonial, only under the

foregone conclusion doctrine. Id. at 958. The foregone conclusion doctrine did not apply because

the defendant’s act of producing the unlocked phone would provide the Government with more

information that it did not already know. Id. (emphasis added). To hold that the foregone

conclusion doctrine applies to unlocking a cellphone would sound “the death knell for a

constitutional protection against compelled self-incrimination in the digital age.” Id. (quoting

Commonwealth v. James, 117 N.E.3d 702, 724 (Mass. 2019)).

As a matter of public policy, the Fourteenth Circuit erred in applying the foregone

conclusion doctrine to the search of Kensington’s cellphone. As the Supreme Court of Indiana

cautioned, applying the foregone conclusion doctrine to the unlocking of a cellphone

impermissibly expands the doctrine because the act of producing the unlocked phone provides the

Government with more information that it did not already know. Allowing the police to compel a

suspect to unlock a phone in this situation has grave implications for other cases. First and

foremost, the foregone conclusion doctrine may prove to be unworkable in the context of

smartphones, because they can contain “the combined footprint of what has been occurring

socially, economically, personally, psychologically, spiritually and sometimes even sexually, in

the owner’s life.” United States v. Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015). Unlike the

subpoenas in cases like Fisher and Doe, unlocking a smartphone for law enforcement provides the

Government access to everything on the device. See In re Application for a Search Warrant, 236

F. Supp. 3d 1066, 1068 (N.D. Ill. 2017) (determining that the Government, prior to compelling a

suspect to unlock their smartphone, must specifically identify the files it seeks with reasonable

particularity). Such unbridled access to potential evidence raises complex questions if a suspect

has other password protected applications on their phone, or certain files that are stored in cloud-

storage services. The foregone conclusion exception is not the proper tool to answer these complex

questions given the privacy implications that would surely follow.

Given that the foregone conclusion doctrine does not apply to the facts of this case, and the

greater public policy concerns that would follow from its adoption in this context, this Court should

reverse the decision of the Fourteenth Circuit.

II. Expert testimony on eyewitness identifications is admissible, under

Federal Rules of Evidence 702 and 403, when it is helpful to the jury,

presented by a qualified expert, and relevant to proceedings.

The Fourteenth Circuit’s decision should be reversed because it ignored this Court’s

decision in Kumho Tire and prevented valuable expert testimony from being admitted on a subject

of essential concern to the courts: the reliability of eyewitness testimony. A district court’s role in

admitting expert testimony is that of a “gatekeeper.” Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 597 (1993). The trial judge should make a preliminary determination of admissibility of

an expert, but “conventional devices”—such as “[v]igorous cross-examination, [the] presentation

of contrary evidence, and [the] careful instruction on the burden of proof”—“rather than wholesale

exclusion[—]. . . are the appropriate safeguards where the basis of scientific testimony meets the

standards of Rule 702.” Daubert, 508 U.S. at 596. The Fourteenth Circuit misapplied Rule 702 by

failing to consider this Court’s precedent in Kumho Tire, erred by applying a rigid reliability

analysis instead of the flexible analysis required by this Court in Daubert, and misapplied the

helpfulness prong of the Daubert analysis. Additionally, the Fourteenth Circuit erred when

conducting a Rule 403 analysis by failing to properly consider the probative value of the evidence

and by failing to apply the substantially outweigh standard.

A. The Fourteenth Circuit misapplied Daubert by ignoring Kumho Tire’s holding,

applied dispositive weight to inapplicable reliability factors, and misinterpreted

the requirements of “helpful to the jury.”

The Fourteenth Circuit ignored Kumho Tire’s holding when it asserted that non-scientific

evidence did not qualify under Daubert, applied dispositive weight to inapplicable reliability

factors (which contravenes this Court’s flexible analysis requirement in Daubert), and looked to

the wrong standard in determining whether the expert witness would be “helpful to the jury.”

Therefore, the decision of the Fourteenth Circuit should be reversed, and the case remanded for a

new trial.

Expert testimony must be offered by a qualified expert. See Daubert, 508 U.S. at 588

(citing Fed. R. Evid. 702); see also Kumho Tire, 526 U.S. at 141) (extending Daubert to qualified

experts that provide “testimony based on ‘technical’ and ‘other specialized’ knowledge”). The

testimony must be helpful to the jury, and must be based on sufficient facts or data. Fed. R. Evid.

702(a), 702(b), 703. The expert’s testimony must also be a product of reliable methods and

principles—and those principles and methods must be applied in a reliable way. Fed. R. Evid.

702(c).

Here, the Fourteenth Circuit erred as a matter of law when it predicated its holding on the

fact that Dr. Closeau’s testimony was not scientific—this Court, under Kumho Tire, expanded

Daubert beyond purely scientific expertise. Additionally, the Fourteenth Circuit applied the wrong

standard for assessing reliability, under Daubert, by confining its inquiry and applying dispositive

weight to whether Dr. Closeau’s theory “was generally accepted by his colleagues,” had a “known

or potential error rate,” or whether the “technique could be tested.” (R. 60.) Further, the Fourteenth

Circuit misapplied the helpfulness standard because it conflated an expert opinion on a witness’s

psychological ability to observe, recall, and identify with assessing “credibility.”

i. An expert may be qualified in a non-scientific field.

The Fourteenth Circuit erred when it excluded Dr. Closeau’s testimony on the basis of it

not being “scientific” by bypassing this Court’s holding in Kumho Tire v. Carmichael, 526 U.S.

137 (1999). Pursuant to that decision, experts may be qualified based on “’technical’ and ‘other

specialized’ knowledge.” Kumho Tire, 526 U.S. at 141.

Here, Dr. Closeau is a forensic psychologist—a scientist with a Ph.D. in Psychology from

Northwestern, (R. 29)—and can be qualified as a scientist.

But even if this Court finds that Dr.

Closeau’s expertise was not scientific, as the Fourteenth Circuit did, that does not exclude Dr.

Closeau from testifying as an expert in the field of forensic psychology due to his specialized

knowledge regarding witness memory, trauma, and identification.

Richard E. Redding, Psychology and the Law: How Common-Sense Psychology Can Inform Law and Psycholegal

Research, 5 U. CHI. L. SCH. ROUNDTABLE 107, 123 (1998) (“Historically psychology has been a discipline of

theoretically based laboratory research asking ‘questions suited to scientific method rather than those suggested by

social problems.’”).

The holding and analysis presented by this Court in Daubert has been extended to

encompass experts in non-scientific areas of expertise. See Kumho Tire, 526 U.S. at 141. In Kumho

Tire, the Eleventh Circuit reversed a district court’s decision, finding that “Daubert explicitly

limited its holding to cover only the scientific context, adding that a Daubert analysis applies only

where an expert relies on the application of scientific principles.” Kumho Tire, 526 U.S. at 146

(quoting Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1435–36 (11th Cir. 1997)) (internal

quotations omitted). The Kumho Court reversed the Eleventh Circuit, holding that “[t]he Rules

grant that latitude to all experts, not just to ‘scientific’ ones.” Kumho Tire, 526 U.S. at 148, 158.

The Fourteenth Circuit below based its decision on the erroneous conclusion that “[t]he

first prong of the Daubert inquiry requires the Court to find that the expert is testifying on the basis

of scientific knowledge.” (R. 59.) But just like in Kumho Tire, where this Court found that the

Eleventh Circuit improperly limited Daubert’s holding to “the scientific context,” here, the

Fourteenth Circuit has committed the same error, wrongly limiting Daubert’s holding. Thus, under

Kumho Tire, a full Daubert analysis should apply in order to determine whether Dr. Closeau can

provide expert testimony.

Dr. Closeau is a qualified expert in the field of forensic psychology. Dr. Closeau was a

research fellow for the National Psychology Foundation, performing “extensive research in the

area of psychology and memory.” (R. 29.) Dr. Closeau has qualified as an “expert in eyewitness

identifications in over 120 cases.” (R. 30.) Dr. Closeau has won numerous prestigious awards for

his work in this field and published more than four articles on the subject. (R. 30.) Dr. Closeau is,

under Rule 702, qualified to be an expert witness.

ii. Daubert eschews the requirement of a formulaic analysis that compels a

“generally accepted practice” in favor of “a flexible” approach to assess

reliability.

The Fourteenth Circuit was incorrect to limit its inquiry to “(a) whether a technique is or

can be tested, (b) its known or potential rate of error, and (c) the degree of acceptance for the

technique within the scientific community,” (R. 62), because Daubert dispenses with a formulaic

analysis in favor of “a flexible” approach to assess reliability. “The inquiry envisioned by Rule

702 is, we emphasize, a flexible one.” Daubert, 509 U.S. at 594. In determining whether an

expert’s testimony is reliable, a court “must determine whether the testimony has a reliable basis

in the knowledge and experience of the relevant discipline.” Kumho Tire, 526 U.S. at 149.

This Court has found that “there are many different kinds of experts, and many different

kinds of expertise,” which is why “Daubert makes clear that the factors it mentions do not

constitute a ‘definitive checklist or test.’” Kumho Tire, 526 U.S. at 150 (citing Daubert, 509 U.S.

at 593). “It might not be surprising in a particular case, for example, that a claim made by a

scientific witness has never been subject of peer review.” Id. The inquiry at hand “must be tied to

the facts of a particular case.” Id. (internal quotations omitted). And a “pertinent consideration is

whether the theory or technique has been subjected to . . . publication.” Daubert, 509 U.S. at 593.

But here, the Fourteenth Circuit failed to analyze the type of expertise before it in order to

determine which flexible factors must be used to analyze reliability. The Fourteenth Circuit failed

to consider whether Dr. Closeau and his techniques had been subjected to peer review or

publication. Dr. Closeau has been published in a multitude of articles and “invited to lecture at

numerous academic institutions, professional associations, and academic and professional

conferences, on the use of eyewitness identifications in criminal and civil cases.” (R. 30.) But both

the District Court and the Fourteenth Circuit failed to consider this “pertinent consideration;”

instead, the Fourteenth Circuit looked, first, to “whether a technique is or can be tested.” (R. 62.)

In doing so, the Fourteenth Circuit failed to note that Dr. Closeau runs a research laboratory that

studies psychology and memory. (R. 30.)

The second factor the Fourteenth Circuit looked to was “its known or potential rate of

error.” (R. 62.) The assessment that Dr. Closeau made was subjective, and not rooted in binary

data points. In finding that Dr. Closeau was not qualified because there was no ascertainable error

rate, the Fourteenth Circuit failed to take notice of the fact that, because the error rate was

indeterminable, that may be indicative that this is not the sort of factor that is applicable in this

instance. The Fourteenth Circuit, instead, held that by not being ascertainable, it was

determinative. This Court has required courts to look to the error rate, but not that the lack of one

is dispositive. This is counter to this Court’s holdings in Daubert and Kumho, requiring flexible,

fact and circumstance-based inquiries.

In determining that Dr. Closeau’s testimony was not admissible, the third factor the

Fourteenth Circuit looked to was “the degree of acceptance for the technique within the scientific

community.” (R.62.) This Court, in Daubert, held that “a known technique which has been able to

attract only minimal support . . . may properly be viewed with skepticism.” But here, neither the

Fourteenth Circuit nor the District Court found that Dr. Closeau’s expertise applied a “known

technique” with “only minimal support”—those courts, once more, could not reach a

determination on this factor. And counter to this Court’s holding in Daubert, the Fourteenth Circuit

assumed that finding nothing discredited the expert, rather than discrediting the court’s chosen

test. This was a fatal mistake in the Fourteenth Circuit’s analysis.

Here, Dr. Closeau’s status in the community as a professor, his research at the University

of Boerum, countless published works, awards, and numerous lectures establish the reliability of

his methods and principles. Thus, this meets the requirements of Daubert and Rule 702 for

reliability.

iii. Expert testimony is helpful to the jury when it presents “a valid scientific

connection to the pertinent inquiry.”

The Fourteenth Circuit failed to apply the correct “helpfulness” standard by conflating an

expert opinion on a witness’s psychological state with the determination of credibility. The

foregoing standard is that the expert testimony must have “a valid . . . connection to the pertinent

inquiry.” Daubert, 509 U.S. at 591–92. The term helpfulness “goes primarily to relevance”;

whether or not the expertise “fits” the fact in dispute. Daubert, 509 U.S. at 591.

It is true that the jury must determine if the witness is credible. But credibility is “the quality

or power of inspiring belief,” not an estimation of the brain’s ability to contort visual-based

memory. Credibility, Merriam-Webster Dictionary. A witness may wholeheartedly believe her

testimony, and the jury may believe her—but still, due to the science of the human brain, the

witness may be mistaken in her (convincing) belief. Dr. Closeau is not challenging the witness’s

truthfulness, conviction, or ability to inspire belief—these are clearly the providence of the jury.

Dr. Closeau would provide background research, data, and ultimately an opinion, on the efficacy

of a witness’s eyewitness testimony under a very specific, and stressful, combination of events.

Unless jurors have, themselves, studied the science of memory, been exposed to explosions, or

experienced memory loss, they are not properly armed with the knowledge and experience

required to assess the physiologic limits of the witness’s memory. Thus, Dr. Closeau’s testimony

is helpful to the jury to understand the clinical results that frame the witness’s ability to recall

visual information under specific conditions. Then, once armed with the scientific underpinnings

of memory-recall, jurors can use that information as a lens in which to process the eyewitness’s

testimony, ultimately, enabling them to reach a determination of credibility.

Ultimately, Dr. Closeau meets all prongs of Daubert and Kumho: (1) Dr. Closeau is a

highly qualified expert in the field of forensic psychology, having conducted research in the field,

been published in the field, awarded in the field, and routinely invited to lecture in the field; (2)

Dr. Closeau’s opinion will provide a scientific basis for the jury to interpret the physiological

limitations of an eyewitness’s testimony under the extreme, unique, and specific events in this

case; (3) Dr. Closeau’s testimony is based on the specific facts from this case relevant to this

determination; (4) Dr. Closeau’s testimony is a product of reliable methods and principles, which

have been subject to awards by his peers, publication, and laboratory research; and (5) Dr. Closeau

has reliably applied these principles to the facts of this case. All of the requirements of Daubert

are met, and under the flexible analysis that this Court has lauded in Daubert and Kumho, Dr.

Closeau should be admitted as an expert witness under Rule 702.

B. Rule 403 does not preclude Dr. Closeau’s testimony because his testimony has

a high probative value and does not unduly prejudice the prosecution.

The Fourteenth Circuit and the District Court below committed legal error by

misinterpreting the requirements of a Rule 403 analysis. Specifically, the court below failed to

properly assess the probative value of the testimony, and by not requiring the probative value to

be substantially outweighed by the undue prejudice—the court below only looked to determine if

it was outweighed rather than substantially outweighed. “Rule 403 permits the exclusion of

relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.’” Daubert, 509 U.S. at 595 (citing Fed.

R. Evid. 403). Probative value is “calculated by comparing evidentiary alternatives.” Old Chief v.

United States, 519 U.S. 172, 184 (1997). Here, there is no other evidence discussing the

psychological implications of severe stress and memory loss on the ability to make an

identification. Therefore, the probative value of Dr. Closeau’s testimony is high, as there is no

substitute in the record.

The Fourteenth Circuit and the District Court found that there was a possibility of jury

misuse, but neither court found that such misuse would substantially outweigh the probative value.

This is an error as a matter of law. And, to sharpen the point, that is because the mild potential for

misuse would not substantially outweigh, or outweigh at all, the probative value. Dr. Closeau’s

purpose is to provide a scientific backing to the manner in which the human brain is capable of

processing and storing information. It is still the jury’s task to apply that information against the

testimony of the witness and reach a determination. A Rule 105 jury instruction is more than

sufficient to focus the jury on their task, separate and apart from the eyewitness testimony. See

Fed. R. Evid. 105 (stating that a judge may “instruct the jury to only use the evidence in its proper

scope”). This situation is no different from a medical expert testifying that a surgeon violated the

standard of care—a jury must still interpret that expert opinion and apply their own final

determination on the facts.

Allowing Rule 403 to casually cast aside vital expert witness testimony is counter to public

policy because eyewitness identifications are inherently unreliable—which this Court has taken

notice of for years—and foregoing the opportunity to allow experts to frame potentially

questionable witness identifications runs the risk of placing more innocent people in prison. Since

the sixties, this Court has recognized that eyewitness identifications can be inherently unreliable.

United States v. Wade, 388 U.S. 218, 228 (1967).

In some instances, expert testimony may not be required. But in instances—like here—

where the witness was under significant stress and had an extended period of memory loss

immediately after the alleged identification, (R. 5), there are significant factors at work—

physiological factors regarding the human brain—that require more than just the commonsense

intuition of the typical jury member. This is comparable to a hypothetical case where a jury

member can know that it was wrong for a surgeon to leave a pair of scissors inside a patient without

an expert, but when a brain surgeon takes too long to reconnect particular tissue, an expert is

required to explain the standard of care. Similarly an eyewitness that saw someone enter a bank—

and that is it—is a witness that can be easily cross-examined and her experience compared,

realistically, to that of an everyday juror. But here, where there is an eyewitness who witnessed a

Molotov cocktail explosion and then lost her memory for hours, that witness presents particular

medical issues that can be appropriately addressed and explained by a qualified expert. Therefore,

we request that this Court reverse the Fourteenth Circuit and remand this case for a new trial in

which the Defendant is permitted to bring expert testimony on the issue of the eyewitness’s

physiological and psychological limitations in identifying the Defendant due to extreme

circumstances.

III. Federal Rule of Evidence 615 forbids sequestered witnesses from

learning of each other’s testimony while outside of courtroom

proceedings.

This Court should reverse the decision of the Fourteenth Circuit and adopt an expansive

reading of Federal Rule of Evidence 615 that forbids sequestered witnesses from learning of each

other’s testimony while outside of courtroom proceedings. This Court should adopt the expansive

approach to Rule 615 to broadly preclude witnesses’ access to each other’s testimony, because the

expansive approach supports the Rule’s fundamental purpose to discourage fabrication,

inaccuracy, and collusion. Furthermore, this Court should reverse the Fourteenth Circuit’s decision

because Gerber’s testimony, which incorporated specific details of Holzer’s testimony, prejudiced

Kensington.

Rule 615 states that “at a party’s request, the court must order witnesses excluded so that

they cannot hear other witnesses’ testimony.” Fed. R. Evid. 615. Some courts limit Rule 615 to its

plain meaning and interpret sequestration orders only to prohibit witnesses from remaining

physically present in the courtroom during the testimony of other witnesses. See, e.g., United States

v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993). The majority of circuits interpret Rule 615 more

expansively to limit witness interaction and access to testimony outside of the courtroom. See, e.g.,

United States v. Robertson, 895 F.3d 1206, 1215–16 (9th Cir. 2018). The expansive interpretation

of Rule 615 gives effect to the legislative intent and fundamental purpose of the Rule.

The practice of sequestering witnesses has long been recognized “as a means of

discouraging and exposing fabrication, inaccuracy, and collusion.” Fed. R. Evid. 615 (Notes of

Advisory Committee on 1972 Proposed Rules). In Geders v. United States, this Court observed

that witness sequestration serves two purposes: (1) to exercise a restraint on witnesses tailoring

their testimony to that of earlier witnesses; and (2) to aid in detecting testimony that is less than

candid. 425 U.S. 80, 87 (1976). The purpose of Rule 615 is to prevent the shaping of testimony by

one witness to match that of another, and to discourage fabrication and collusion. Miller v.

Universal City Studios, Inc., 650 F.2d 1365, 1373 (5th Cir. 1981).

A. This Court should adopt a purposive reading of the rule instead of a textual

approach.

A purposive reading of Rule 615, as a majority of circuit courts have adopted, limits

witness interaction and access to testimony beyond physically being present in the courtroom. See

generally United States v. Friedman, 854 F.2d 535, 568 (2d Cir. 1988) (emphasizing that the

reading of trial transcripts outside of the courtroom could amount to a violation of Rule 615); see

also United States v. Jimenez, 780 F.2d 975, 980 (11th Cir. 1986) (holding that a witness violated

a sequestration order by reading the prior testimony of another witness). The expansive reading of

Rule 615 emphasizes the rule’s fundamental purpose, namely, to prevent witnesses from

coordinating their testimony in violation of the truth-seeking process. United States v. Robertson,

895 F.3d 1206 (9th Cir. 2018).

Several circuits have adopted a textualist approach to Rule 615 that only enforces the

physical exclusion of prospective witnesses from the courtroom. See United States v. Brown, 547

F.2d 36, 37 (3d Cir. 1976). Witness exclusion from trial proceedings utterly fails, however, to

provide a safeguard against testimonial tailoring if prospective witnesses are still permitted to

access trial testimony outside of the courtroom.

In United States v. Robertson, the district court entered an order sequestering witnesses,

pursuant to Rule 615, prior to trial. Robertson, 895 F.3d at 1215. On appeal, Robinson argued that

the district court erred by allowing two witnesses to review a transcript of an agent’s testimony

prior to testifying. Id. The Ninth Circuit adopted the expansive view of Rule 615, determining that

there is no difference between reading and hearing testimony for the purpose of the rule. Id. The

Ninth Circuit commented that interpreting Rule 615 to distinguish between hearing another

witness give testimony in the courtroom, and reading a transcript of a witness’s testimony, runs

counter to the core purpose of the Rule. Id. The danger that earlier testimony could improperly

shape later testimony is equivalent whether the witness physically hears the testimony in court or

reads the testimony from a transcript. Id. The court held that a “trial witness who reads testimony

from the transcript of an earlier, related proceeding violated a Rule 615 exclusion order just as

though he sat in the courtroom and listened to the testimony himself.” Id. at 1216.

In Miller v. Universal City Studios, Inc., before trial the district court entered a general

sequestration order applicable to all witnesses under Rule 615. 650 F.2d 1365, 1373 (11th Cir.

2012) ). An expert witness for the defendant, although sequestered, received transcripts of portions

of the plaintiff’s testimony. Id. The Fifth Circuit held that it was a violation of the sequestration

order for the expert to read transcripts of another’s testimony. Id. The court articulated that the

danger of shaping testimony is as great when a witness reads a trial transcript as when a witness

hears the testimony in open court. Id. The court thereafter stated “the harm may be even more

pronounced with a witness who reads trial transcript than with one who hears the testimony in

open court, because the former need not rely on his memory of the testimony but can thoroughly

review and study the transcript in formulating his own testimony.” Id.

An expansive reading of Rule 615 is required as protection from witnesses coordinating

their testimony, as evidenced by the conduct of Andrew Gerber and his adaptation of testimony

from Lily Holzer. The District Court for the District of Boerum found that Andrew Gerber read

Lily Holzer’s testimony during the court’s lunch recess on the day that Gerber testified. (R. 54.)

Gerber’s conduct is a perfect example as to why this Court should adopt the expansive approach

of Rule 615 to protect against testimonial tailoring.

The District Court for the District of Boerum, just as the district court in Robinson, entered

an order sequestering witnesses prior to trial. (R. 45.) Analogous to the witness in Robertson,

Andrew Gerber reviewed the transcript of another witness prior to testifying. (R. 54.) The Ninth

Circuit in Robertson cautioned that reading a transcript of earlier testimony could improperly shape

a witness’ later testimony in violation of Rule 615. Robertson, 895 F.3d at 1215. Gerber’s

testimony at trial unequivocally mirrored statements made by Lily Holzer in her testimony before

the District Court. (R. 52.) Gerber added details into his own testimony that he did not actually

witness, including that Kensington allegedly used the slogan “Fossil Fools” and had a limp. (R.

50.) In his interview with the FBI, Gerber did not mention these details and conversely stated that

he had not seen Kensington since before the protest. (R. 6–7, 50.) Gerber’s access to the

sequestered testimony of Lily Holzer violates a Rule 615 exclusion order, because reading

Holzer’s transcript is just as though he sat in the courtroom and listened to her testimony himself.

The Fifth Circuit articulated in Miller that the harm of reading a transcript of another

witness may be even more pronounced than hearing testimony in open court, because the witness

can review and study the transcript in formulating testimony. Miller, 650 F.2d at 1373. As

evidenced by Gerber’s inclusion of specific phrases and details from Holzer’s testimony, the harm

of reviewing a trial transcript is as great as if Gerber had listened to Holzer’s testimony in open

court. (R. 53.) Gerber cast doubt on the veracity of his testimony, and allowing his testimony to

stand violates the purpose of Rule 615 to prevent fabrication and collusion. (R. 53.) This Court

should hold that reviewing the transcripts of another’s testimony is a violation of a Rule 615

sequestration order because of the blatant disregard of the purpose of the Rule that results and the

evident harms that follow.

B. Allowing Andrew Gerber’s testimony, in violation of the sequestration order,

prejudices the Petitioner because it impermissibly reinforced Holzer’s

eyewitness testimony.

This Court should reverse the Fourteenth Circuit’s decision because the trial court erred in

denying Petitioner’s motion for a directed verdict or a new trial based on Gerber’s violation of the

sequestration order. A district court has discretion to allow the testimony of a witness who violated

a sequestration order, and its decision to do so is reviewed for an abuse of discretion. United States

v. Womack, 654 F.2d 1034 (5th Cir. 1981). In evaluating whether an abuse of discretion has

occurred, the focus is whether the witness’s out-of-court conversations concerned substantive

aspects of the trial and whether the court allowed the defense fully to explore the conversation

during cross-examination. United States v. Wylie, 919 F.2d 969, 976 (5th Cir. 1990).

In State v. Breaux, the trial court found that a witness for the defendant was present in court

for the testimony of another witness, in violation of the court’s sequestration order. 110 So. 3d

281, 284 (4th Cir. 2013). The trial court held, and the Fourth Circuit upheld, that defendant’s

witness was properly excluded from testifying because he committed a violation of the

sequestration order and listened to the testimony of another witness. Id. at 285; see also United

States v. Calhoun, 510 F.2d 861, 868 (7th Cir. 1975) (holding that the trial court did not abuse its

discretion in ruling that two witnesses who violated the sequestration order were not permitted to

later testify at trial).

Gerber’s violation of the sequestration order prejudiced Kensington, and therefore

Kensington’s motion for a directed verdict or a new trial should have been granted by the District

Court. Gerber added specific details into his own testimony that he did not actually witness, which

prejudicially reinforced Holzer’s eyewitness account. (R. 50.) Gerber notably did not mention

these specific facts in his interview with the FBI, and he would not have known about the fleeing

suspect’s use of “Fossil Fools” or limp without reviewing Holzer’s transcript. (R. 6–7.) Gerber did

admit in his interview with law enforcement that he had personally been at odds with Petitioner

and his goals for the Planeteers. (R. 7.) By violating the sequestration order, Gerber cast doubt on

the veracity of his testimony, which strongly informed Defendant’s conviction. (R. 53.)

Furthermore, the defense did not learn of Gerber’s violation until after Kensington’s conviction,

and therefore could not correct for any prejudicial statements on cross-examination. (R. 47.) Given

the sufficient prejudice to Kensington of Gerber’s tainted testimony, this Court should reverse the

decision of the Fourteenth Circuit.

CONCLUSION

Ultimately, the evidence gained from the phone is inadmissible because Kensington’s act

of unlocking the phone was testimonial in nature, due to the implied assertions of fact underlying

the unlocking, and the police’s compulsion of that action is violative of Kensington’s Fifth

Amendment privilege against self-incrimination. Additionally, Dr. Closeau was wrongly

prevented from testifying due to errors the District Court made in interpreting the Daubert

standard, Rule 702, and Rule 403. Finally, the District Court wrongly permitted Gerber’s testimony

to stand after Gerber violated the sequestration order under Rule 615. Therefore, we respectfully

request that this Court reverse the Fourteenth Circuit’s decision and remand this case to the trial

court for a retrial with instructions to (1) strike all evidence discovered on Kensington’s phone, (2)

admit the expert testimony of Dr. Closeau, and (3) bar Gerber’s testimony.

Respectfully Submitted,

/s/ Team 8P

Attorneys for Petitioner