MS. COMEY: Just one thing to flag, and I don't think we need to take it up today, but just to flag since my redirect will likely come up tomorrow. I do think the door has been opened to the prior consistent statements in Jane's notes from after Ms. Ventura's lawsuit. And the reason is the line of cross-examination that Ms. Geragos pursued regarding the immunity that Jane received in the grand jury. As your Honor may recall, Ms. Geragos asked Jane about a topic that I did not address on direct, which was the fact that Jane received immunity when she went into the grand jury, and then Ms. Geragos asked Jane who decides whether she's telling the truth under that immunity order. And Jane I believe answered "the prosecutors" or may have even been a leading question, saying the prosecutors decide whether you're telling truth. That raises the implied argument that she is lying or shaping her testimony to fit with the prosecutors' theory, and that she is changing her testimony from the moment that she gets that immunity through to her trial testimony today in order to fit with what she thinks the prosecutors want to hear. So that's a new motive to lie that Ms. Geragos introduced through her cross-examination of Jane. And Jane's notes before November of 2024 would therefore be prior consistent statements that she made before Ms. Geragos -- before Jane went in to the grand jury and received immunity in November of 2024. So I think that door has been opened, your Honor, and on redirect I'm going to ask to admit those notes.
THE COURT: Response?
MR. DRISCOLL: Yes, your Honor. With respect to the line of cross-examination about immunity, the attack is about whose view of the witness's truthful testimony governs, and I think what Ms. Geragos was implying is that it's the government that gets to determine whether the witness is being truthful. And just going back to the rule on prior consistent statements, the issue under Tome is the temporal relationship between the statement and when a motive to fabricate first appears. And clearly this witness has testified that she saw Ms. Ventura's lawsuit. She was aware that there was a settlement. And she testified also that she was aware that the settlement was quite large in nature. And she actually saw the demand in the complaint. So it's clear that at that point there was a clear motive to fabricate and exaggerate her story. Also, the government's investigation promptly began at that point. So under Tome, these just can't be considered prior consistent statements.
MS. COMEY: If I may, your Honor --
THE COURT: Well, just walking through the rule, the government's position is that Ms. -- so Jane's statements, the voice notes or the written notes postdating Ms. Ventura's lawsuit are consistent with her testimony, and then how are they offered to rebut an implied, I suppose, charge that she recently fabricated the statements?
MS. COMEY: Because the only relevance of the line of questioning about who decides whether or not she's telling the truth is to suggest that she is shading her testimony in order to please the prosecutors who decide whether or not she's telling the truth. That's the only relevance of that line of cross-examination is to suggest that she has a motive to lie to please the prosecutors.
THE COURT: Well, isn't that true of the entire line of cross? I mean, isn't the cross directed to exposing that to the extent the witness testified that she was not willingly participating in these events, Ms. Geragos is going through text messages that might suggest otherwise. And so the suggestion is that while you are saying that now in real-time when these things were happening, you had a different view that you expressed in these messages.
MS. COMEY: Yes, your Honor.
THE COURT: No, I apologize. I think Ms. Geragos had one line of questioning that we just heard about whether the witness regretted it now or resented it now, which the witness equated. And so what's the difference between that kind of inquiry and inquiry into the grand jury process?
MS. COMEY: So the difference is that the inquiry into the impact of the immunity order that she received in the grand jury goes directly to whether or not this witness has a particular motive to change her testimony and change her account of what happened as a result of the immunity order that was issued in November of 2024.
THE COURT: Understood. So it's really the timing.
MS. COMEY: Exactly, your Honor.
THE COURT: Got it, okay.
MS. COMEY: So I think what Mr. Driscoll said before Jane took the stand was that the only motive that the defense was proffering at that point was Ms. Ventura's lawsuit. So that was the timing -- that was the cutoff for me to offer prior consistent statements because they were arguing that the motive to fabricate, the motive to lie occurred when Ms. Ventura's lawsuit came out, so anything predating that would rebut any allegation of changing her -- of fabricating her story exaggerating her account. They have now introduced a second motive point, which is the immunity order in November of 2024. They have now introduced a specter of and the suggestion that she is shaping her testimony in response to that immunity order, and as a result of it in November of 2024. So I think that moves the cutoff date to November of 2024 to rebut any implied allegation that she is shaping her testimony, changing her testimony, or fabricating her testimony in order to please prosecutors.
THE COURT: Well, maybe help me with this. So if she -- if the cut off was previously when Ms. Ventura's lawsuit was made public and the witness was aware of it, and so only the prior statements would be admissible under the rule, then how does anything that happened later really matter? Meaning, let's say that there was some other additional cumulative motive to lie that came up later, how would that move the goalpost forward in time?
MS. COMEY: So I think it allows -- we are allowed, I think, your Honor, to rebut any allegation that there was any additional motive at all that caused her to change her story. I think we've already rebutted it through the notes that we introduced before Ms. Ventura's lawsuit. I think we're also entitled to rebut the suggestion that she fabricated at the point of the grand jury in 2024 and onwards. If Ms. Geragos had not asked those questions, I would not be raising this. But she raised the suggestion that this witness would change her story in order to please prosecutors because prosecutors decide whether or not she's telling the truth, and I think we are entitled to rebut that implication.
THE COURT: What is the date of the immunity order?
MS. COMEY: November 2024. I don't remember the specific date, your Honor, but it is in November of 2024, and the notes all predate that.
THE COURT: So the idea is that these are really separate things and should be viewed separately.
MS. COMEY: Yes, your Honor.
THE COURT: So the statements about Ventura's lawsuit, fine, the earlier statements can come in. The later statements wouldn't otherwise come in. But there's a separate charge that's been levied against -- that related to the immunity order that's November of 2024, so now at that point you should be permitted to introduce the statements that predate that order.
MS. COMEY: Exactly, your Honor.
THE COURT: Any further response, Mr. Driscoll?
MR. DRISCOLL: Yes, Judge. I just don't think that view is consistent with the rule announced in Tome.
THE COURT: You mentioned Tome, and I know it's in the papers, but what's the citation?
MR. DRISCOLL: Judge, I would have to pull it up. It's also mentioned in the Advisory Committee Notes to the rule, which gives a good overview of its rationale. But the point is that once the witness has a motive to fabricate on the subject matter of the testimony that the witness is giving, whether the statement is a prior consistent statement or not, it doesn't meet -- it doesn't satisfy the temporal requirement of the rule, which isn't exactly listed in the rule itself, but it's a feature of the common law as announced in Tome and in the Advisory Committee Notes.
THE COURT: All right.
MR. DRISCOLL: And the point about the immunity order, I think if that's the relevance that they're offering these prior consistent statements for, then it doesn't pass 403 either. The probative value there would be much lower than offering them as prior consistent statements at an earlier time. Here our position is basically that these notes are her papering the file once the government's investigation begins.
THE COURT: Ms. Comey, what are the exhibit numbers if you have them?
MS. COMEY: Sure, your Honor. I have E-331-N, E-331-O, E-331-K and E-3331-L, so those four. And E-331-P, so those five are the five I have pulled. They are between November of 2023 and March of 2024. And I think they have exceptional probative value given that the relationship does not end with Ms. Ventura's lawsuit. So Jane does not leave the defendant. She does not leave his orbit. She does not leave the relationship. She remains in it. And so her notes in her notes app are her contemporaneous thoughts and feelings while she is still in the relationship, still communicating with Mr. Combs, still communicating with his chief of staff and is in the middle of the charged conduct. Perhaps Mr. Driscoll's argument about probative value might have some force if these postdated the relationship, but they are still in the heartland of the relationship, and especially the March 2024 note comes when she is back together with him after the break that they take in November, December and January. So I think that these have extraordinary probative value, and that is especially true because I don't think anything in the cross-examination has suggested that she had any motive to "paper the file." There is no evidence in this record, and nothing has come through from the examination of this witness to suggest that she is trying to make a law enforcement report; that she was trying to prepare for a civil suit. Ms. Geragos has not even suggested that on cross-examination. So the suggestion that she's trying to "paper the file" I think finds absolutely no basis in the record.
THE COURT: Understood. So I will take a look at the testimony, Ms. Comey, that you've pointed to as well as these five exhibits, and I'll give you my ruling in the morning before we begin and continue with the cross-examination.
MR. AGNIFILO: Your Honor, can I add one thing? I tried to wait so it didn't seem like there was a double team relay.
(Counsel and Court crosstalk)
MR. AGNIFILO: It's like a relay race. I've certainly seen cross-examinations where the cross is you want to make the prosecutors happy because you're afraid of being prosecuted. This simply is just not close to that cross. I think everyone in courtroom realizes at a very early stage the government did not view this witness as a co-conspirator. And so I think that what Ms. Comey is suggesting is much more relevant in the scenario where you have someone who really could be a co-conspirator but is trying to walk that line and make the prosecutors, for lack of a better word, happy. And I see the relevance there. This just simply is the polar opposite from that situation. There is no realistic possibility that I've ever heard of that this witness thought she was going to be prosecuted. That certainly wasn't brought out in the direct. We haven't suggested that in the cross. I mean, there's a very strong cross-examination when a defense lawyer thinks that's the truth. "you were afraid of being prosecuted. You said things so you wouldn't be prosecuted. And now you're just trying to like toe that line so that you don't get prosecuted." That is just a different universe than what we have with this witness. So I wanted to share that perspective and so I think --
THE COURT: What about the, you know, potential Mann Act charges or potential drug-related charges? We've heard testimony about drugs being carried by Jane on the request of --
MR. AGNIFILO: I'm just not hearing in the direct, I mean, I -- I'm just not hearing in the actual examination that any of these things are a factor. In other words, I mean, the government hasn't suggested, you know, that there were -- she had broken the law voluntarily; that she was committing violations of the Mann Act or violating prostitution laws. It just -- I mean, we have -- you know, we have now, I don't know how many days it is, five days of an examination, we have a record of that, and that's just not the nature of this witness' testimony.
THE COURT: If that's so, then what was the reason for the inquiry concerning the grand jury process?
MR. AGNIFILO: There is a reason for that. Because I think what the government did is they told half the story, right, as though the truth is this objective thing that comes down from someplace other than the government's opinion. And that just completes the narrative. You said if you tell the truth. We don't want the jury thinking your Honor is involved in that process. Your Honor doesn't sit there and say you're telling the truth or you're not. It's a single question that just provides a very simple clarification of the government's point. The truth doesn't exist in some vacuum. It's an agreement with the government, and the government determines what the truth is. It's one question, and it's clarifying in nature. That's all it is.
THE COURT: The grand jury -- well, I've got to take a look at -- I'll take at a look at the testimony. I appreciate the views that you've expressed.
MS. COMEY: If I may, your Honor. What Mr. Agnifilo said I think just gave away the game. The whole point of that line of cross-examination was to suggest that Jane is parroting back the government's version of the truth. She wrote these notes saying essentially the exact same thing she said on the stand long before she ever met a single prosecutor in this office or a single federal agent, and we should be able to put those in to show that there is absolutely nothing to the suggestion that this witness is just regurgitating what she thinks prosecutors have said or want her to say. So I think that these notes need to come in as prior consistent statements to rebut exactly the argument that Mr. Agnifilo just said he wants to make about this immunity order.
THE COURT: Understood. I'll take a look at the materials, and we can address it first thing in the morning. Anything else from the government?
MS. COMEY: No, your Honor.
THE COURT: Anything from the defense?
MR. AGNIFILO: Nothing, your Honor. Thank you.
THE COURT: We'll see everyone here at 8:30.
(Adjourned to June 12, 2025, at 8:30 a.m.)