Court Filing
Electronically Filed 3/24/2025 2:32 PM Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court By: Jennifer Keyes, Deputy Clerk LATAH COUNTY PROSECUTOR'S OFFICE WILLIAM W. THOMPSON, JR., ISB No. 2613 PROSECUTING ATTORNEY ASHLEY S. JENNINGS, ISB No. 8491 SENIOR DEPUTY PROSECUTOR Latah County Courthouse 522 S. Adams Street, Ste. 211 Moscow, ID 83843 Phone: (208) 883-2246 paservice@latahcountyid.gov 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 No. CR01-24-31665 Plaintiff, STATE'S REPLY TO V. DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE BRYAN C. KOHBERGER, Defendant. RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and submits the following reply to the March 17, 2025 “ Defendant's Response to State's Motion in Limine RE: Neuropsychological and Psychiatric Evidence. " The Defendant, in his response to the State's motion in limine, has clarified that he apparently has at least two separate purposes for the proposed evidence: to explain how the Defendant appears before a jury, and to rebut what the Defendant anticipates may be evidence STATE'S REPLY TO DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE 1 from the State regarding suspicious, unusual or other “ odd ” (the State's characterization) physical and social behavior. The Defendant has now also included a declaration by Dr. Jeffrey Lewine regarding physical conditions of the Defendant. This is the first the State has heard of Dr. Lewine; he was not included in the Defendant's guilt phase expert disclosures nor does he appear to offer anything in rebuttal to proffered expert disclosures from the State. First, addressing the issue of the Defendant's behaviors and appearance as they may be perceived by the jury – the Defense offers no authority, statutory or otherwise, to allow him to present evidence purportedly explaining how he may appear or behave in front of a jury. The State is unaware of any such authority. While Idaho Code § 18-207 does allow for the admission of certain mental condition evidence, not even that statute contemplates the Defendant offering evidence of the Defendant's behaviors and appearance, much less offering evidence before even the State's case in chief begins (or presumptively [trying to follow the Defendant's argument] prior to jury selection beginning). Not only would this type of evidence be completely irrelevant and immaterial to the legal and factual issues in this case (whether the Defendant committed four murders and burglary), it would more likely confuse the issues, mislead the jury, and play to the jury's sympathies. These purposes are prohibited by I.R.E. 401, 402 and 403. The State notes that ICJI 202 lists the evidence a jury is allowed to consider: sworn testimony of witnesses, exhibits which have been admitted into evidence, and facts to which the parties have stipulated. The Defendant's demeanor and appearance are not included. As stated above, the State is unaware of any authority that would allow the Defendant to present evidence purportedly explaining how he may appear or behave in front of the jury. There is, however, a body of law regarding prosecutorial misconduct holding that a defendant's “ courtroom behavior off the witness stand was legally irrelevant to the question of his guilt of the STATE'S REPLY TO DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE 2 crime charged. ” US v. Schuler, 813 F.2d 978, 980 (1987). This analysis further supports the conclusion that a defendant's appearance or behavior in front of a jury, at least when he is not testifying, is irrelevant and not evidence. Defendant cites to State v. Samuel, 165 Idaho 746 (2019) apparently in support of his request to offer explanations for what he believes the jury will perceive from his physical appearance and behaviors in court. However, State v. Samuel dealt with evidence of mental condition as it related to whether the Defendant knowingly, voluntarily and intelligently waived his Miranda rights in speaking with law enforcement. When the Defendant opposed the State's request for an independent mental evaluation, the Defendant tried to argue that Idaho Code 18- 207 (4) was limited to mental conditions as they relate to elements of the charged offense. The Idaho Supreme Court held otherwise. What is most important is Samuel does not stand for the proposition that expert (or any other) testimony regarding how a defendant may appear in front of a jury is admissible. The Defendant's appearance and behaviors in front of a jury are not material or relevant. It appears that the Defendant, despite his initial declarations that he does not intend to offer this evidence under Idaho Code 18-207, is now trying to claim that it is admissible under Idaho Code 18-207. See last sentence beginning on p. 2 and continuing on p. 3 of Defendant's Response. The Defendant cannot have it both ways. Either Idaho Code 18-207 applies, and the evidence is limited to mental condition as it relates to a legal or factual issue, or it does not apply in which event the evidence is irrelevant and not admissible. The Defendant asserts that the second purpose of the Defendant's proffer of the mental condition evidence is to rebut anticipated State's evidence about how the Defendant interacts with others, his personal hygiene habits, and so forth. STATE'S REPLY TO DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE 3 At the outset, the State currently does not have any intention of offering evidence during the guilt phase of Defendant's pattern of “ odd ” behaviors such as social miscues with coworkers, professors, students and others, compulsive hand washing, etc. The State understands that were it to offer such evidence, in rebuttal the Defendant would likely be entitled to offer evidence that those behaviors stemmed from his OCD and ASD conditions as opposed to some nefarious purpose. Defendant argues he “ has a developmental coordination disorder ” that means it was “ not possible for him ” to commit these crimes because he lacked the necessary “ speed and coordination. " (Mot. at 7-8.) But that is not what his neuropsychological evaluation found. The expert who conducted the evaluation, Dr. Orr, listed “ Developmental Coordination Disorder ” under the title “ Diagnoses for which Bryan Met Criteria in the Past. ” (Ex. D7-B, p.16 (emphasis added).) Dr. Orr clearly explains that “ motor problems have not impacted his functioning significantly in many years. ” Id. at 19 (emphasis added).¹ To the extent Defendant currently has any motor impairment, even according to his own expert, it affects only his “ fine motor dexterity and vulnerabilities in visual-motor functions. ” Id. The examples she uses for “ fine motor dexterity " include when he had “ poor handwriting ” and “ trouble tying his shoes ” in the past. Id. at 4. She asserts he continues to have difficulty with “ manipulation of tools even as an adult ” but only " per parent report. ” Id. She also points to her observations during the examination that Defendant “ moved his whole arm and repositioned his upper body slightly to manipulate the 1 Curiously, Defendant's other mental health expert, Dr. Ryan, includes Developmental Coordination Disorder as a current condition even though she defers to Dr. Orr's “ comprehensive neuropsychological evaluation, ” which found Defendant only met the criteria in the past. (Ex. D13-B, p.29.) Dr. Ryan provides no explanation for her differing opinion. In fact, the phrase “ Developmental Coordination Disorder ” appears only a single time in Dr. Ryan's report on the list of conditions. Dr. Ryan's discussion of Defendant's problems with “ fine motor skills " is limited to his educational history, and all her references were to observations made more than two decades ago. Id. at 7-8. STATE'S REPLY TO DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE 4 items effectively. ” Id. at 7. No reasonable juror could infer from those observations and a diagnosis that applied to Defendant “ in the [p] ast ” that it was “ not possible ” for Defendant to commit the crimes with which he is charged. Most tellingly, neither of Defendant's experts drew that or any similar inference. Neither expert offers any opinion on whether any of his conditions made it more or less likely that he was physically capable of committing the crimes charged. Thus, the expert opinions themselves are inadmissible during the guilt phase because they are not relevant to guilt See I.R.E. 401; I.R.E. 402. And Defendant's attempt to stretch his experts ' opinions beyond what they say is barred by Rule 403 as unfairly prejudicial, misleading to the jury, and a waste of time. Finally, it now appears that the Defendant wants to offer evidence that his OCD and ASD are actually physical conditions as opposed to mental conditions. As stated above, this is new and the State is attempting to understand how this would be relevant or admissible. The State will note that not having this knowledge before, the State's motion in limine was not drafted to address it. Based on the above, the State asks the Court to enter orders in limine as follows: 1. Prohibiting the Defendant from offering evidence of purported explanations of how he may appear in front of a jury. This is irrelevant and immaterial, is most likely to appeal to the sympathies of the jury, to mislead and to cause confusion on the real issues in this case which are whether or not the Defendant is guilty of murder and burglary. 2. Reserving ruling on whether the Defendant is entitled to offer rebuttal evidence of his mental condition to the extent that it might offer an alternative explanation to any State's evidence about the Defendant's suspicious, unusual or otherwise " odd " STATE'S REPLY TO DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE 5 physical and social behaviors. 3. Deny the Defendant's introduction of the newly disclosed evidence regarding physical condition which was not previously disclosed nor proffered as rebuttal or response to State's guilt phase expert disclosure, and which on its face does not appear to be relevant or material. RESPECTFULLY SUBMITTED this 24th day of March 2025. 2224 William W. Thompson, Jr. Prosecuting Attorney STATE'S REPLY TO DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE 6 CERTIFICATE OF DELIVERY I hereby certify that true and correct copies of the STATE'S REPLY TO DEFENDANT’S RESPONSE TO STATE'S MOTION IN LIMINE RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE were served on the following in the manner indicated below: Anne Taylor Mailed Attorney at Law E-filed & Served / E-mailed PO Box 2347 Faxed Coeur D Alene, ID 83816 Hand Delivered Dated this 24th day of March 2025. STATE'S REPLY TO DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE 7