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`Case: 1:19-cr-00322 Document #: 342 Filed: 11/20/23 Page 1 of 12 PageID #:5802
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`UNITED STATES OF AMERICA,
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` Plaintiff,
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` v.
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`EDWARD M. BURKE, PETER J.
`ANDREWS, and CHARLES CUI,
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` Defendants.
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`
`
`
` No. 19 CR 322
`
` Judge Virginia M. Kendall
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`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
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`MEMORANDUM OPINION AND ORDER
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`The Government moves to exclude testimony by Dr. Jeffrey Neuschatz, Defendant Peter
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`Andrews’s proposed expert witness on memory and detecting deception (Dkt. 241). For the
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`following reasons, the motion is granted.
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`BACKGROUND
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`The Court assumes familiarity with the facts and posture of this case. (See Dkts. 196, 287,
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`301). For brief context, Count 10 of the May 30, 2019 Superseding Indictment (the “Indictment”)
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`charges Defendant Peter Andrews with making false statements to law enforcement about an
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`alleged extortion scheme targeting Individuals B-1 and B-2, executives of a company that owned
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`a fast-food restaurant in former alderman Defendant Edward Burke’s ward. (Dkt. 30, Count 10).
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`During a November 29, 2018 interview with FBI agents, Andrews allegedly made the following
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`false statements:
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`i.
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`ii.
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`Andrews denied ever hearing the name of Individual B-1;
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`Andrews denied ever hearing the name of individual B-2;
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`iii. When asked whether he thought Burke had ever met Individual B-1 and
`Individual B-2, Andrews said, “I don’t know. I don’t know.”; and
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`1
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`(Id. at 48).
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`iv. When asked whether he remembered dealing with Individual B-1 and
`Individual B-2, Andrews replied, “They may have come in to our office or
`something. . . . Maybe, I don’t know. I don’t recall.”
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`Andrews offers Dr. Neuschatz’s testimony to explain the workings of memory and
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`detecting deception. (Dkt. 274). The Government has moved to exclude Dr. Neuschatz’s
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`testimony, arguing it is common sense, confusing, and invades the province of the jury. (Dkt. 24).
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`On November 2, 2023, the Court held a hearing on the Daubert motion. (Dkts. 321, 330).
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`LEGAL STANDARD
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`Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell
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`Pharmaceuticals, Inc., 509 U.S. 579 (1993), “govern the admissibility of expert testimony.” Kirk
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`v. Clark Equip. Co., 991 F.3d 865, 871 (7th Cir. 2021) (citation omitted). Trial judges act as
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`gatekeepers to screen expert testimony for relevance and reliability. Daubert, 509 U.S. at 589; see
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`also C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). Under Rule 702, a
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`“witness who is qualified as an expert by knowledge, skill, experience, training, or education may
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`testify in the form of an opinion if:
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`(a) the expert’s scientific, technical, or other specialized knowledge will help the
`trier of fact to understand the evidence or to determine a fact in issue;
`(b) the testimony is based on sufficient facts or data;
`(c) the testimony is the product of reliable principles and methods; and
`(d) the expert has reliably applied the principles and methods to the facts of the
`case.
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`Fed. R. Evid. 702. Thus, “the key to the gate is not the ultimate correctness of the expert’s
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`conclusions but rather the soundness and care with which the expert arrived at her opinion.” Burton
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`v. E.I. du Pont de Nemours & Co., Inc., 994 F.3d 791, 826 (7th Cir. 2021) (quoting Schultz v. Akzo
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`Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)) (cleaned up).
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`2
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`The Court applies Daubert flexibly, consistent with its gatekeeping function. Kumho Tire
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`Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Employing a three-part analysis, the Court
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`evaluates: “(1) the proffered expert’s qualifications; (2) the reliability of the expert’s methodology;
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`and (3) the relevance of the expert’s testimony.” Anderson v. Raymond Corp., 61 F.4th 505, 508
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`(7th Cir. 2023) (quoting Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017)).
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`The relevance inquiry asks “whether the testimony will assist the trier of fact to understand the
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`evidence or determine a fact in issue.” Gopalratnam, 877 F.3d at 779 (quoting Myers v. Ill. Cent.
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`R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010)) (cleaned up). The expert’s proponent bears the burden
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`of demonstrating that the testimony would satisfy the Daubert standard by a preponderance of the
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`evidence. See id. at 782; see also Fed. R. Evid. 702 advisory committee’s note to 2000 amendment.
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`If the Court determines that an expert’s testimony is admissible, “any questions or problems
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`concerning the expert’s opinion and testimony may be thoroughly explored during the cross-
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`examination of the expert witness.” United States v. Perez, 612 F.3d 879, 886 (7th Cir. 2010).
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`A.
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`Dr. Neuschatz’s Qualifications
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`DISCUSSION
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`Dr. Neuschatz is a psychology professor at the University of Alabama in Huntsville. (Dkt.
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`241-1 at 2). He holds a Bachelor of Arts in psychology from Roger Williams University, a Master
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`of Arts in experimental psychology from the State University of New York at Cortland, and a
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`Ph.D. in cognitive psychology from Binghamton University. (Id.) In his research, Dr. Neuschatz
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`focuses on memory and eyewitness identification. (Id. at 19; Dkt. 330 at 16:16–17:3). He has
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`published around 50 peer-reviewed articles (including around 35 on human memory), three books,
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`and several more book chapters and articles, and presented at over 100 conferences. (Dkt. 241-1
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`at 3–18; Dkt. 241-2 at 2; Dkt. 330 at 17:4–19:5). Dr. Neuschatz has given expert testimony in over
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`3
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`100 cases—almost always as a memory expert. (Dkt. 241-2 at 2; Dkt. 330 at 23:14–22). The
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`Government does not contest Dr. Neuschatz’s qualifications. (See generally Dkt. 241).
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`Considering his extensive experience, Dr. Neuschatz is qualified to testify as an expert on memory.
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`B.
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`Reliability of Dr. Neuschatz’s Methodology
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`Reliability “is primarily a question of the validity of the methodology employed by an
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`expert, not the quality of the data used in applying the methodology or the conclusions produced.”
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`Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013). Factors that may bear on
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`an expert’s reliability include “whether the methods have been tested or subject to peer review and
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`whether they are generally accepted in the field.” United States v. Truitt, 938 F.3d 885, 890 (7th
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`Cir. 2019) (citing Daubert, 509 U.S. at 593–94). The test for reliability is “flexible,” and the factors
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`enunciated in Daubert “neither necessarily nor exclusively appl[y] to all experts or in every case.”
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`Kumho Tire, 526 U.S. at 141. Moreover, expert testimony is not unreliable, “simply because it is
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`founded on [a witness’s] experience rather than on data.” Metavante Corp. v. Emigrant Sav. Bank,
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`619 F.3d 748, 761 (7th Cir. 2010).
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`In preparing his report, Dr. Neuschatz reviewed photographs and surveillance pictures,
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`transcripts of witness statements, audio recordings of Andrews’s FBI interview, and reports of law
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`enforcement. (Dkt. 241-2 at 2). Dr. Neuschatz’s proposed expert testimony would explain (1) how
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`human memory functions, relying on the accepted theory of reconstructive memory; and (2) how
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`accurately people can detect deception. (Dkt. 241-2; Dkt. 330 at 24:1–3, 26:21–28:8). Starting with
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`the workings of memory, Dr. Neuschatz’s report observes that “[m]emory does not work like a
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`camera or video-recorder,” (Dkt. 241- at 2), which is “one of the biggest myths of memory.” (Dkt.
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`330 at 26:7–20). Rather, the human memory is more like a computer, operating in three phases:
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`(1) “encoding”; (2) “storage”; and (3) “retrieval.” (Dkt. 330 at 24:5–23).
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`4
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`Instead of recording “a verbatim and complete copy” of an event, “we store the gist of the
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`event, and when we want to retrieve the experience, we fill in gaps in accord with what we know
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`about how the world works.” (Dkt. 241-2 at 2). The reconstructive process may or may not be
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`accurate: people can hold memories of non-existent events or retrieve memories differently each
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`time. (Id. at 2–3). According to Dr. Neuschatz, personally or emotionally significant events are
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`more likely to be stored accurately. (Dkt. 241-2 at 3; Dkt. 330 at 25:4–26:1). Yet, some of these
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`generally accepted conclusions about memory are not so intuitive, Dr. Neuschatz’s report points
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`out, citing survey studies suggesting that laypersons’ beliefs about memory are out of step with
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`scientific opinion. (Dkt. 241-2 at 3). Specifically, laypeople are more likely than experts to believe
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`that memory works like a video recorder, that events “do[] not change in memory,” and that
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`“people are more likely to notice unexpected events.” (Id.)
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`In addition to flaws in encoding or storage, “retrieval, or accessing the information in
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`memory, is the cause of many memory errors.” (Id.) That is, people are sometimes unable to access
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`stored memories. (Id.) As examples of this occurrence, Dr. Neuschatz points to the common
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`experience of being unable to remember a known person’s name or the “tip of the tongue
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`phenomenon.” (Id. at 3–4). Studies have shown that retrieval cues, context, and rehearsal can help
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`people remember things. (Id. at 4–5; Dkt. 330 at 32:9–34:2). Thus, “[c]ompared to the traditional
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`question and answer style of police interviewing,” the “Mental Context Reinstatement” stage of
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`the “Cognitive Interview” technique—in which “witnesses are asked to reinstate the environmental
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`context at the time of encoding, including sights, sounds and smells, as well as their psychological
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`state at the time of the incident”—“has repeatedly shown to produce a larger amount of accurate
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`recall with a negligible increase in inaccurate information being recalled.” (Dkt. 241-2 at 4–5).
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`5
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`Conversely, the passage of time “leads to forgetting, which in turn leads to inaccurate or
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`distorted memories.” (Id. at 5). When people “learn new information during the retention
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`interval”—meaning, “the amount of time that elapses between the person’s initial experience of
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`an event and the person’s attempt to remember information about the event”—the new information
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`can distort the original memory. (Id.; Dkt. 330 at 34:3–35:4). Studies have indicated that “longer
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`retention intervals lead to poorer face memory and worse identification performance.” (Dkt. 241-
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`2 at 5–6). In addition, the impact of new, or “post-event,” information—especially of the
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`misleading variety—is “one of the most widely studied topics in memory.” (Id. at 7; Dkt. 330 at
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`29:5–21). The phrasing of questions, studies have revealed, can prompt people “to believe they
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`remember an event even though they do not have an actual or accurate recollection.” (Dkt. 241-2
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`at 7–8; Dkt 330 at 29:22–31:7). “Memories are more susceptible to impairment when the post-
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`event information is given by a credible source,” like “an authority figure, parent, or trusted
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`friend.” (Dkt. 241-2 at 8; Dkt. 330 at 31:8–11).
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`Applying some of these principles, Dr. Neuschatz’s report opines that Andrews may not
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`have remembered Individuals B-1 and B-2 during his FBI interview until receiving retrieval cues
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`from the agents. (Dkt. 241-2 at 5). People “forget or misremember things all the time especially if
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`the events have no personal significance,” so Dr. Neuschatz would be unsurprised if Andrews did
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`“not remember people he encountered briefly a long time ago.” (Id.) Since Andrews’s FBI
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`interview occurred 17 months after his interaction with Individuals B-1 and B-2, he had “ample
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`time” to forget or suffer from memory distortion. (Id. at 6–7). Plus, Andrews may have been “more
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`susceptible to suggestion.” (Id. at 6–7). The FBI agents, by mentioning the names of Individuals
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`B-1 and B-2 and their relationship to Burke, could have altered Andrews’s memory—making it
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`“unclear” whether Andrews then remembered “events actually witnessed or the implanted external
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`6
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`factors suggested to him.” (Id. at 7–8). Still, Dr. Neuschatz would “take no specific position on the
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`accuracy of [Andrews’s] memories.” (Id. at 1).
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`Then, in Dr. Neuschatz’s report on detecting deception,1 he explains that “[i]t is very
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`difficult to detect when people are lying, including whether they are lying about their recollection
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`of events.” (Id. at 8). Dr. Neuschatz relies on studies suggesting that college students detect lies
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`“at chance levels,” and police officers may fare no better. (Id. at 8–9). Another study found that
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`police officers detected deception slightly better than chance. (Id. at 9). But police officers’
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`commonly held beliefs that lies correlate with eye contact or fidgeting have “little to no empirical
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`support.” (Id.) Dr. Neuschatz’s report does not explain how detecting deception applies to this
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`case. Yet, he concludes: “In my review of witness’ statements and witness testimony, there are
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`replete examples which can be expanded upon in expected trial court testimony, which bear on the
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`reliability of those statements and testimony years later.” (Id. at 9).2
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`Dr. Neuschatz’s proposed testimony does not suffer from a reliability problem. He grounds
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`his theories in scientific studies, showing that they have general acceptance in the field. Although
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`Dr. Neuschatz does not engage deeply with the facts of the case, the Court does not fault him for
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`keeping some distance from the ultimate issue of whether Andrews lied during his FBI interview.
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`To the extent Dr. Neuschatz puts his theories into action, the application is mostly
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`straightforward—reflecting the “soundness and care” expected of experts. See United States v.
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`Protho, 41 F.4th 812, 822 (7th Cir. 2022) (quoting Schultz, 721 F.3d at 431); see also, e.g.,
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`Blackmon v. City of Chicago, 2022 WL 3908593, at *4–5 (N.D. Ill. Aug. 30, 2022). By steering
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`1 At the hearing, Andrews’s counsel decided not to examine Dr. Neuschatz on detecting deception. (Dkt. 330 at 9:11–
`10:8).
`2 To the extent Dr. Neuschatz intends to apply any concepts to this case in ways he has not yet explained, the Court
`cannot assess the reliability of that testimony. See Fed. R. Crim. P. 16(b)(1)(C)(iii) (requiring expert disclosures to
`include “a complete statement of all opinions that the defendant will elicit from the witness in the defendant’s case in
`chief” and “the bases and reasons for them”).
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`7
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`clear of strong, unsupported conclusions about Andrews, Dr. Neuschatz has remained “within
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`reliable scientific bounds.” See Protho, 41 F.4th at 822; cf. Textron, 807 F.3d at 837 (explaining
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`that exclusion of expert testimony is proper when “there is simply too great an analytical gap
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`between the data and opinion proffered” (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
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`(1997))).
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`What gives the Court pause is Dr. Neuschatz’s unclear application of retrieval cues and
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`post-event information to the facts of this case. On one hand, Dr. Neuschatz suggests that “[m]ore
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`retrieval cues” from the interviewing FBI agents “might have helped” jog Andrews’s memory.
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`(Dkt. 241-2 at 5). On the other hand, Dr. Neuschatz opines that the FBI agents could have distorted
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`Andrews’s memory by mentioning Individuals B-1 and B-2. (Id. at 8). Since Dr. Neuschatz takes
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`no clear position on whether the agents gave Andrews helpful or misleading cues, (see Dkt. 330 at
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`49:14–50:13), his report invites potentially inconsistent inferences about Andrews’s memory
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`during the interview. Nonetheless, Dr. Neuschatz would avoid definitive opinions about
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`Andrews’s memory. (See Dkt. 330 at 55:5–57:16, 59:16–60:20, 71:8–72:8, 74:15–75:5, 78:1–11).
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`More than reliability, therefore, the unclear application of concepts in Dr. Neuschatz’s report
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`speaks to the proposed testimony’s helpfulness.
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`C.
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`Relevance of Dr. Neuschatz’s Opinions
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`Relevance is the primary weakness in Dr. Neuschatz’s proposed testimony. No doubt,
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`expert testimony on memory can be helpful to jurors—particularly in cases involving eyewitness
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`identifications. See United States v. Carter, 410 F.3d 942, 950 (7th Cir. 2005) (“[E]xpert testimony
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`regarding eyewitness identification, memory, and perception is not per se unhelpful.” (quoting
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`United States v. Welch, 368 F.3d 970, 974 (7th Cir. 2004), vacated on other grounds, 543 U.S.
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`1112 (2005))); cf. United States v. Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (“Expert evidence
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`8
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`can help jurors evaluate whether their beliefs about the reliability of eyewitness testimony are
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`correct.”); see also Blackmon, 2022 WL 3908593, at *5 (collecting cases). But his testimony
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`would not be helpful here.
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`Andrews hopes for Dr. Neuschatz to bolster his faulty-memory theory, which goes like
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`this: Andrews had met Individuals B-1 and B-2 only briefly, and so, during his FBI interview 17
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`months later, he could not remember Individuals B-1 and B-2 until the agents prompted a vague
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`memory to resurface. (See Dkt. 274 at 5, 7). Yet, the applicable principles from Dr. Neuschatz’s
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`proposed testimony—memory is fallible, it can fade over time, and it can be refreshed—are within
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`the realm of common experience and knowledge. See Carter, 410 F.3d at 950 (“In general, . . .
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`jurors understand that memory can be less than perfect.”); Welch, 368 F.3d at 974 (“[I]t does not
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`require an expert witness to point out that memory decreases over time.”); United States v.
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`Labansat, 94 F.3d 527, 530 (9th Cir. 1996) (“It is common knowledge that memory fades with
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`time.”); United States v. Redwood, 216 F. Supp. 3d 890, 897 (N.D. Ill. 2016) (“[E]very juror will
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`already know that a witness’s ability to perceive something could be affected by whether and for
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`how long the witness could see or hear it, and whether the witness was focused or distracted.”);
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`United States v. Shiraishi, 2019 WL 1386365, at *5 n.7 (D. Haw. Mar. 27, 2019) (finding expert
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`testimony on “how memories can fade over two years and how details can become somewhat
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`inaccurate” unhelpful because it “falls within the common knowledge of the average layman”);
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`United States v. Heine, 2017 WL 5260784, at *3 (D. Or. Nov. 13, 2017) (excluding expert
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`testimony that “memories are fallible and may deteriorate over time” as “within the ken of the
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`ordinary juror”). On these topics, Dr. Neuschatz’s testimony would merely attach scientific labels
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`to ideas that are familiar to the average juror. See, e.g., United States v. Libby, 461 F. Supp. 2d 3,
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`12 (D.D.C. 2006) (“Although the average juror may not understand the scientific basis and labels
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`attached to causes for memory errors, jurors inevitably encounter the frailties of memory as a
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`commonplace matter of course.”). Understanding Andrews’s side of the story does not require
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`expert help.
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`Of course, Dr. Neuschatz’s theories are not all common sense; his report suggests the
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`opposite, observing studied tension between lay and expert opinion on certain aspects of human
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`memory. See Webster v. Daniels, 784 F.3d 1123, 1143 (7th Cir. 2015) (“We have often pointed
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`out the dangers of relying on ‘common sense’ when social science reveals that common
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`assumptions are wrong.”); United States v. Williams, 522 F.3d 809, 811–12 (7th Cir. 2008) (“If
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`there is one thing known about eyewitness identification, it is that ‘common sense’ misleads more
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`often than it helps.”). But the less intuitive concepts in Dr. Neuschatz’s proposed testimony have
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`little to do with Andrews’s faulty-memory defense. In deciding whether Andrews truthfully could
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`or could not recall Individuals B-1 and B-2 during the FBI interview, the jury may picture
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`Andrews’s memory as a video recorder attempting to rewind the tape or a computer searching for
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`a file. The theoretical distinction does not seem to matter.
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`Nor would it help the jury to hear expert testimony suggesting that post-event information
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`or misleading retrieval cues could have changed the details of Andrews’s memories relating to
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`Individuals B-1 and B-2. Without clarifying whether or how post-event information or retrieval
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`cues might have affected Andrews’s memory, this line of testimony would only invite confusion.
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`In short, this case does not present the sort of “unique circumstances” that may justify expert
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`testimony on memory. See Redwood, 216 F. Supp. 3d at 899 (citing Carter, 410 F.3d at 950,
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`Newsome v. McCabe, 319 F.3d 301, 306 (7th Cir. 2003), and Libby, 461 F. Supp. 2d at 18).
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`Weighing the helpfulness of Dr. Neuschatz’s testimony “against the costs of collateral
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`inquiries,” the costs are far heavier. See Bartlett, 567 F.3d at 906 (cautioning that expert testimony
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`on memory can “sidetrack a trial”); Carter, 410 F.3d at 950 (collecting cases); Fed. R. Evid. 403.
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`Dr. Neuschatz’s testimony would needlessly prolong the trial while emphasizing and
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`overcomplicating intuitive concepts. See Redwood, 216 F. Supp. 3d at 898. Although Dr.
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`Neuschatz would not offer strong conclusions about Andrews’s memory, the dangers remain that
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`jurors would struggle to apply Dr. Neuschatz’s concepts or misconstrue his expert testimony as a
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`signal to leave their common sense and collective wisdom at the door. See Libby, 461 F. Supp. 2d
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`at 18 (finding that expert testimony on “the general principles of memory and cognition ‘may cause
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`jurors to surrender their own common sense in weighing the testimony,’ and instead cause them
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`to rely too heavily upon [the expert’s] testimony” (quoting Bastow v. Gen. Motors Corp., 844 F.2d
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`506, 510–11 (8th Cir. 1988))) (cleaned up); Redwood, 216 F. Supp. 3d at 898 (same); see also
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`United States v. Christian, 573 F.3d 702, 710 (7th Cir. 2012) (“[A] witness should not be allowed
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`to put an ‘expert gloss’ on a conclusion that the jurors should draw themselves.” (quoting United
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`States v. York, 572 F.3d 415, 423 (7th Cir. 2009))). In that sense, Dr. Neuschatz’s testimony would
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`encroach on the jury’s province. Thus, Dr. Neuschatz’s proposed testimony on memory is
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`inadmissible under Rules 702 and 403.
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`Dr. Neuschatz’s testimony on detecting deception also appears irrelevant. After suggesting
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`that detecting lies is “very difficult”—even for law enforcement officers—Dr. Neuschatz’s report
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`does not explain whose ability to detect deception may be at issue in this case. (See Dkt. 241-2 at
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`8–9). According to Andrews, the relevance of this topic hinges on the Government’s introduction
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`of testimony by the interviewing FBI agents about Andrews’s apparent emotional state or body
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`language during the interview. (Dkt. 274 at 10–11; Dkt. 330 at 9:11–10:8). The Court previously
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`granted Andrews’s motion in limine to exclude one agent’s recorded statement during the
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`interview that Andrews “seem[ed] emotional.” (Dkt. 316 at 1–2). Yet, the Court declined to impose
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`an outright bar on testimony by the interviewing agents about Andrews’s emotional state or body
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`language. (Id. at 2). Because the jury is capable of judging the credibility of the witnesses using
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`their common sense and applying all facts and circumstances to the event, Dr. Neuschatz’s
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`testimony on detecting deception is excluded.
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`CONCLUSION
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`For the reasons above, the Government’s motion to exclude Dr. Neuschatz’s testimony
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`[241] is granted.
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`Date: November 20, 2023
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`____________________________________
`Virginia M. Kendall
`United States District Judge
`
`
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`12
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`