BRIAN M. COGAN, District Judge.
By Minute Entry and Order dated July 31, 2013, this Court made evidentiary rulings on certain of the parties' pending motions in limine and reserved judgment on others. The Court also ordered defendant to file a written proffer for any newly designated witnesses, and granted the parties' requests to submit letter briefs addressing certain motions in limine in further detail. Those proffers and motions are now before the Court.
These witnesses offer to testify as to their personal knowledge of a variety of issues, ranging from the connection between zakat committees and Hamas to the views of the Jordanian and Saudi government on terrorism. Though the precise content of their testimony varies, it all suffers from similar problems: hearsay, conflict with prior Orders in this case, and risk of prejudice and confusion to the jury.
First, the testimony of all of these witnesses raises questions, to varying degrees, of whether the witness is relying on his own personal knowledge or channeling hearsay. As government officials, these witnesses' personal knowledge is principally derived from what others told them in meetings with staff, other agencies, or foreign officials. Although this could perhaps form a permissible basis for an expert's opinion under Rule 703, a lay witness may not base his testimony on hearsay or specialized knowledge.
Defendant did not produce the most probative direct evidence of its intent, and is barred from "making any argument about its state of mind that would find proof or refutation in the withheld documents."
Finally, this testimony is excluded under Rule 403. Whatever marginal probative value it may have is far outweighed by the risk of prejudice, delay, and confusion to the jury. Again, the issue in this trial is what the
Both of these witnesses propose to testify as to the customs and practices of Palestinian and Israeli banks.
Defendant also offers Dr. Abed's testimony about the Welfare Association, which he helped to found and directed from 1985 to 1993. But plaintiffs disclaim any allegation that the Welfare Association was controlled by Hamas, and Dr. Abed had left the Welfare Association by 1993, long before the relevant time period. Dr. Abed's testimony concerning the "organization's creation, mission, purpose, operations and activities" therefore has minimal probative value, and, when weighed against the risk of delay and confusion of issues, must be excluded under Rule 403.
All expert testimony relating to the motivations of suicide bombers, including that of Mr. Shmilovitch, has already been excluded.
Gen. Shamni's late-proffered testimony suffers from the same defects as the testimony the other government officials described above in I.A. Moreover, this Court has already excluded evidence relating to the IDF's investigation of defendant. Further, as the Court has indicated, any evidence of the seizures by the IDF will be admissible, at most, for the limited purpose of demonstrating notice to the defendant of the existence and ownership of the accounts seized. Gen. Shamni cannot rebut the
Plaintiffs move to bar Dr. Milton-Edwards from opining on general Palestinian public perceptions as to whether zakat committees were affiliated with Hamas. Judge Gershon's February 6, 2013 Order stated that Dr. Milton-Evans could testify as to whether a specific zakat committee was perceived as affiliated with Hamas "if she demonstrates that she has specific information as to that organization," but explicitly precluded her from testifying that "zakat committees and local charitable organizations enjoy such widespread community approval precisely because they are not perceived to be affiliated with organizations like Hamas."
In their public statements, Messrs. Powell and Fleischer both explicitly state that they are relating what has been told to them by unnamed, unidentified Saudi sources. Even assuming that the public statements themselves qualify as public records under Federal Rule of Evidence 803(8), this double-hearsay problem requires excluding this evidence. The Court additionally finds that, under Rule 403, any probative value of these statements would be greatly outweighed by the risk of prejudice and confusion of the issues before the jury.
Defendant appears to be under the misimpression that it can successfully exclude all mention of the OCC and FinCen investigation. Although the Court is reluctant to admit such evidence for the reasons stated on the record, the Court also made clear that plaintiffs are entitled to argue that the information that defendant received through this investigation placed defendant on notice of certain facts. If defendant was dissatisfied with the stipulation offered by plaintiffs, defendant should have proposed a counter-stipulation that addressed its concerns