Court Filing
Exhibit B to Defendant's Reply to State's Objection to Defendant's Motion to Compel I.C.R. 16 (b) (7) Material and for Sanctions Under Seal 1) S-1 Exhibit to State's Objection Jennie Ayers – Forensic Scientist and Expert in the field. In addition to the arguments raised in the Reply brief, her disclosure includes reference to a lab report and a list of topics she may testify about. If her opinions are limited to those contained in the lab report related to items collected as a witness for chain of custody, the Defense has no objection, however, the disclosure states that the lab report is an example and does not encompass all of her findings, impressions or conclusions, the scope of her testimony is not limited and she may testify about other experts work in the case. Mr. Kohberger's experts relating to crime scene and forensic testing cannot respond to the lack of opinion or broad scope of this disclosure. 2) S-2 FBI Special Agent Nicholas Ballance-A power point presentation, primarily of pictures, without any report, notes, or explanation is not a report or an opinion. There is no explanation of how he will interpret drive testing data or explain the equipment or software used. The software used for interpretation, mapping, or driving is not identified. SA Ballance was also involved in significant parts of the investigation of the case and rather than disclose his specific findings or opinions the State asserts “ this notice serves to supplement the information in SA Ballance's report by summarizing areas of anticipated testimony but does not repeat the specific findings that are detailed in his reports. In additional to this summary, SA Ballance may testify to any of the subjects identified in his reports, and may identify and testify to the electronic data, files, and location records identified in the materials made available to the Defendant. " There are many terabytes of electronic data, thousands of files, and location records on many witnesses. The scope of this disclosure is written so loosely that SA Ballance could be called to testify about anything in this case. The only area that appears to be excluded from his expertise is that related to DNA results. The only specific " report ” included by the State is the CAST power point. There are no bates page references. SA Balance obtained many Exhibit B to Defendant's Reply to State's Objection to Defendant's Motion to Compel I.C.R. 16 (b) (7) Material and for Sanctions Under Seal Page 1 Exhibit B to Defendant's Reply to State's Objection to Defendant's Motion to Compel I.C.R. 16 (b) (7) Material and for Sanctions Under Seal cell phone company records including, call detail records, timing data, cell tower data, google data etc. Additionally digital data exists for many cellular device downloads, computer downloads, and social media accounts for the deceased, the surviving roommates, initial persons of interest, friends, and Mr. Kohberger. The type of report SA Ballance will rely upon is unclear. The lack of disclosure impacts Mr. Kohberger's experts working in the area of cell tower data, call detail record data, timing reports, google data, cellular device data, drive test information, and social media accounts. 3) S-3 and S-4 Mr. and Mrs. Barnhart-In its initial motion the defense indicated that the Barnhart's ' expert disclosures were adequate. However, both reports indicate that these experts will testify regarding “ habit ” evidence. What “ habits ” and what opinions remain undisclosed. Therefore, these disclosures are inadequate. Habit evidence is a critical issue in this case as it has been identified as an alibi by the defense. What the Barnharts will testify about habits related to electronic searches, electronic device usage, or any other topic is unknown and undisclosed. This lack of disclosure impacts Mr. Kohberger's experts in the field of cellular tower and cellular device and other electronic device experts. 4) S-5 Mr. Cox – Amazon – no opinion is provided. Mr. Kohberger's experts relating to this kind of digital data are impacted by the lack of disclosures. 5) S-15-S - 25 DNA and State forensic lab experts ' opinions-The thousands of pages bates referenced in the DNA disclosures do identify results based upon likelihood ratio statistics, however who will testify to those statistics and what their opinions will be is not clear by reading thousands of pages of discovery. These disclosures also are open ended similar to Ms. Ayers and state that opinions are not limited, and the disclosure does not encompass all findings, impressions, conclusions or materials related to the expert, and further that the scope of their testimony is not limited and that the may testify about findings, impressions and Exhibit B to Defendant's Reply to State's Objection to Defendant's Motion to Compel I.C.R. 16 (b) (7) Material and for Sanctions Under Seal Page 2 Exhibit B to Defendant's Reply to State's Objection to Defendant's Motion to Compel I.C.R. 16 (b) (7) Material and for Sanctions Under Seal conclusions based on others ' work. Mr. Kohberger's experts in the fields of forensics and DNA are impacted by this lack of disclosure. S-21 Nowlin-Not a single report, bates reference, or expert opinion of the Idaho State Forensic Lab Manager Rylene Nowlin (S-21) has been disclosed. Search of the discovery for the topics on which the disclosure rests yields no information about what she may say. The State's summary of her testimony is so broad that she could essentially be called to testify about anything related to the DNA in this case. It is not a disclosure of an opinion or information that conveys the scientific, technical or other specialized knowledge of the expert witness. Since the only DNA collected at the scene of the crime that the State claims connects Mr. Kohberger to the crime is that which was obtained from some part of the snap of the sheath, the opinions of Rylene Nowlin are critical. They have not been disclosed other than she will testify regarding " touch and transfer " and " direct or secondary transfer ” DNA. Mr. Kohberger's experts in DNA are impacted by this lack of disclosure. 7) S-22 Eric Seat – The expert opinion of this DNA technician provides an explanation of possible testimony regarding a methodology for DNA testing (Y-STR) for which the defense has received no discovery or indication that the method has been used in this case. There is no opinion disclosed other than “ because of the large volume of discovery, the State directs the defense to summary reports of the expert's ultimate conclusions, which can be found in lab report 3 ". Lab Report 3 bates 5721-5731 is DNA data of an alternate suspect, but no ultimate opinion or result is specified. Additionally, the disclosure reflects open language as stated with other witnesses. Mr. Kohberger's forensic and DNA experts are impacted by this lack of disclosure. 8) S-10, S-13, and S-14 Mowery, Tanzola, and Uhrig-Specific expert opinions related to 67 electronic devices and third-party data providers have not been disclosed. In consultation with Exhibit B to Defendant's Reply to State's Objection to Defendant's Motion to Compel I.C.R. 16 (b) (7) Material and for Sanctions Under Seal Page 3 Exhibit B to Defendant's Reply to State's Objection to Defendant's Motion to Compel I.C.R. 16 (b) (7) Material and for Sanctions Under Seal one of the defense experts related to cellular data, just the cell phones alone (excluding other electronic devices and third-party data) is over 3 terabytes of data and analyzing every bit of that will take years; thus it is imperative the state narrow the disclosure and provide a real summary of the expert opinions they intend to elicit. Mr. Kohberger's experts in the field of electronic device, digital records and third party data are impacted by this lack of disclosure. Exhibit B to Defendant's Reply to State's Objection to Defendant's Motion to Compel I.C.R. 16 (b) (7) Material and for Sanctions Under Seal Page 4