Motion to Permit Mitigation Witnesses to Watch Trial

Electronically Filed
5/22/2025 4:57 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Jennifer Keyes, Deputy Clerk Anne Taylor Law, PLLC Anne C. Taylor, Attorney at Law PO Box 2347 Coeur d'Alene, Idaho 83816
Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661
Phone: (208) 642-3797; Fax: (208)642-3799 Bicka Barlow Pro Hac Vice 2358 Market Street San Francisco, CA 94114
Phone: (415) 553-4110 Assigned Attorney:
Anne C. Taylor, Attorney at Law, Bar Number: 5836 Elisa G. Massoth, Attorney at Law, Bar Number: 5647 Bicka Barlow, Attorney at Law, CA Bar Number: 178723 Jay W. Logsdon, First District Public Defender, Bar Number: 8759
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

STATE OF IDAHO CASE NUMBER CR01-24-31665

Plaintiff,
V. MOTION TO PERMIT MITIGATION

WITNESSES TO WATCH TRIAL

BRYAN C. KOHBERGER,

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby moves this honorable Court to amend its exclusion orders in this case to permit mitigation phase witnesses to watch the trial. This Motion is based on the fact that the evidentiary rules do not MOTION TO PERMIT MITIGATION WITNESSES TO WATCH TRIAL Page 1

apply to the mitigation phase as this Court has previously ruled. Additionally, the purpose of the exclusion of witnesses rule does not apply to the mitigation phase.

Rule 615 of the Idaho Rules of Evidence governs exclusion of witnesses. It reads “ At a party's request, the court may order witnesses excluded so that they cannot hear other witnesses ' testimony. Or the court may do so on its own. " The purpose of I.R.E. 615 is to allow courts to prevent witnesses from “ shaping their testimony to conform to or to rebut the prior testimony of other witnesses. ” State v. Huntsman, 146 Idaho 580, 589 (Ct.App.2008). The vital importance of sequestering witnesses is recognized as a foundational element of due process in American jurisprudence. The United States Supreme Court observed that this practice, which goes back to " our inheritance of the common Germanic law, " serves two purposes: it " exercises a restraint on witnesses ' tailoring ' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid. " Geders v. United States, 425 U.S. 80 (1976).

In the mitigation phase, the witnesses are not true fact witnesses as in the guilt phase.

They are not intended to provide accounts of events that are disputed, and thus the concern for tailoring their testimony does not exist.

While it is unclear that the mitigation witnesses will want to watch any part of the trial, there is no reason to penalize them if they do. This Court is therefore requested to amend its earlier exclusion related orders to permit them to watch the trial.

DATED this 22 day of May, 2025.

Jay Lossder
JAY WESTON LOGSDON

FIRST DISTRICT PUBLIC DEFENDER

MOTION TO PERMIT MITIGATION WITNESSES TO WATCH TRIAL Page 2

CERTIFICATE OF DELIVERY

I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 22 day of May, 2025 addressed to:
Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: legalassistant@kmrs.net
Jay Logsdon-via Email: Jay.Logsdon@spd.idaho.gov Bicka Barlow, Attorney at Law – via Email: bickabarlow@sbcglobal.net Jeffery Nye, Deputy Attorney General – via Email: Jeff.nye@ag.idaho.gov Dul MOTION TO PERMIT MITIGATION WITNESSES TO WATCH TRIAL Page 3