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., PROSECUTING ATTORNEY, ISB No. 2613 MADISON ALLEN, ISB. No. 11501 SPECIAL ASSISTANT ATTORNEY GENERAL Latah County Courthouse P.O. Box 8068 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, Plaintiff, Case No. CR01-24-31665 V. STATE'S RESPONSE TO BRYAN CHRISTOPHER KOHBERGER, DEFENDANT'S MOTION TO Defendant. ADOPT VOIR DIRE PROCEDURE AND OBJECTION TO " MAGIC QUESTION " COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and responds to Defendant's Motion to Adopt Voir Dire Procedure and Objection to " Magic Question. " To the extent that Defendant is simply requesting that this Court follow the law and appropriately exercise its discretion, the State does not object. But as set forth more fully below, the State objects to some of the requests to the extent that they exceed what is required by law. INTRODUCTION Defendant makes five requests of this Court. First, the Defendant asks the Court for a STATE'S RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 1 " significant opportunity to voir dire proposed jurors. ” Second, the Defendant asks that he be permitted to determine through voir dire whether each prospective juror understands mitigation. Third, Defendant asks the Court to exercise diligence in denying improper Witherspoon challenges. Fourth, Defendant asks this Court to find that rehabilitation of disqualified jurors via the " magic question ” violates the Defendant's rights. And finally, the Defendant asks that voir dire be conducted individually and sequestered, after the juror questionnaire process. ARGUMENT 1. The State does not object to the general proposition that Defendant ought to be afforded adequate opportunity to voir dire proposed jurors; however, the State reserves the right to object to specific lines of inquiry that may arise Defendant argues that he should be afforded a “ significant " opportunity to voir dire prospective jurors and goes on to argue that adequate voir dire is essential, and that the Court should not restrict voir dire questioning on the topic of the death penalty to " yes or no ” questions. The State takes no issue with the Defendant's general argument that adequate voir dire is essential, and that thorough questioning of prospective jurors ought to be afforded. Under well-settled precedent, defendants are entitled to question potential jurors about their ability to consider the death penalty as part of ensuring that an impartial jury be seated. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968). As to Defendant's argument that the Court should not restrict prospective jurors ' answers to a yes or no, the State also does not object. However, to the extent that Defendant's request for “ significant ” voir dire goes beyond the requirements set forth in the case law, the State objects. In State v. Dunlap, a defendant appealed a trial judge's decision to only allow five minutes for individual voir dire for sentencing phase of a death penalty case.155 Idaho 345, 363, 313 P.3d 1, 19 (2013). The defendant argued that the five-minute time limit violated his right to a fair and STATE'S RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 2 impartial jury. Id. In that case, the trial court had initially ruled that there would be no individual voir dire at all after considering “ the comprehensive nature of the jury questionnaire and the court's belief that the parties ' opportunity to ask follow-up questions of individual jurors based upon their responses to questions directed to the panel during general voir dire was sufficient to select an unbiased jury. ” Id. at 364, 313 P.3d at 20. However, the court eventually decided to allow a fiveminute individual voir dire of each of the jurors. The Idaho Supreme Court held that the trial court acted within its discretion and that Dunlap had failed to demonstrate error. The State recognizes that Dunlap addressed only the sentencing phase and is not asking this Court to restrict voir dire to a literal five minutes. Rather, Dunlap highlights the Court's ability to utilize its discretion. Thus, recognizing the Court's authority to supervise voir dire “ subject such limitations as the court may order, " the State would respectfully submit that specific objections to the finer points of questioning of specific jurors are better addressed during the voir dire process itself. Idaho Criminal Rule 24 (b). 2. The State does not object to mitigation being addressed in voir dire Defendant argues that the defense must be permitted to determine through voir dire whether the prospective jurors understand mitigation and asks the Court to permit the Defendant to examine the issue of mitigation in a meaningful way with prospective jurors. To the extent that the Defendant is merely asking this Court to follow established precedent, the State does not object. As the Idaho Supreme Court explained in Dunlap v. State: The United States Supreme Court has explained that when the state's capital punishment scheme requires the jury to weigh and consider mitigating evidence, any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider mitigating evidence. Thus, jurors who deem mitigating evidence to be irrelevant to their decision to impose the death penalty [and] those jurors who refuse to give such evidence any weight should be disqualified for cause. This is because consideration of the character and record of the individual offender STATE'S RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 3 and the circumstances of the particular offense is a constitutionally indispensable part of the process of inflicting the penalty of death. 159 Idaho 280, 309, 360 P.3d 289, 318 (2015) (cleaned up). Though the State does not object to the Court following the holdings of Dunlap and other binding precedent, the State also recognizes the Court's authority under Idaho Criminal Rule 24 (b) and reserves the right to object should the Defendant seek to go beyond what is set forth by law. 3. There is no reason to believe that the Court will not follow the holdings of Witherspoon and Morgan, and thus, Defendant's request is not ripe Next, Defendant admonishes this Court to “ be cautious that it not remove a juror for having qualms about death ” because “ improper removal of a single juror for opposing the death penalty is reversable error. ” The State does not dispute that Witherspoon and Morgan are binding on this Court, and therefore does not object. However, to the extent that the Defendant may intend to ask this Court to go beyond the holdings of Witherspoon and Morgan, the State objects. The State further objects because the Defendant's request is premature and not ripe for review. In Witherspoon v. Illinois, the United States Supreme Court evaluated a state statute that allowed jurors in death penalty cases to be excluded when they possessed only “ conscientious scruples against capital punishment. ” 391 U.S. 510, 88 S.Ct. 1770 (1968). After the Court explained that “ a man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror, " the Court held that a death sentence “ cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. " Id. at 522-23, 88 S, Ct, at 1777. In Morgan v. Illinois, the Supreme Court examined the inverse of Witherspoon— “ whether STATE'S RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 4 [a] defendant is entitled to challenge for cause and have removed on the ground of bias a prospective juror who will automatically vote for the death penalty irrespective of the facts or the trial court's instructions of law. ” 504 U.S. 719, 726, 112 S.Ct. 2222, 2228 (1992). Relying on the Court's holding in Ross v. Oklahoma, the Court concluded that " [a] juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do, ” and that therefore, " based upon the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. " Id. at 729, 112 S.Ct. at 2230. In order to determine whether a prospective juror may be excluded based on his or her views on capital punishment, the “ standard is whether the juror's views would ‘ prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. ” State v. Abdullah, 158 Idaho 386, 422, 348 P.3d 1, 37 (2015) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852 (1985)); see also Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526 (1980) (“ [A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror. "). " [T] his standard likewise does not require that a juror's bias be proved with ‘ unmistakable clarity... because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. ” Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. The Court recognized that “ there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law... [t] his is why deference must be paid to the trial judge who sees and hears the juror. ” Id. STATE'S RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 5 at 425-26, 105 S.Ct. at 852-53; see also Uttecht v. Brown, 551 U.S. 1, 9, 18-19, 127 S.Ct. 2218, 2224 (2007) (“ Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors. "). The Defendant's request that the Court “ be cautious ” in applying Witherspoon and Morgan cases is not just premature-it is presumptuous. The Court has discretion to make real time determinations about whether or not prospective jurors can fairly and impartially follow the law, and there is no reason to believe that the Court will not properly follow binding precedent in doing so. Thus, this matter is not ripe for adjudication. 4. Courts have long upheld the use of the “ magic question ” in voir dire Defendant's “ magic question " argument — that it is improper to rehabilitate jurors by asking them if they can set aside their biases and decide the case solely on the evidence and instructions of law-flies in the face of long-established precedent. As the Idaho Supreme Court explained in Dunlap v. State, “ a juror may be rehabilitated in voir dire, and the trial judge has discretion to determine whether the juror's views would prevent or substantially impair his ability to perform his duties as an impartial juror. " 159 Idaho 280, 309, 360 P.3d 289, 318 (2015). As explained in detail in the previous section, the Court has the ability to evaluate “ the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors. ” Uttecht at 9, 127 S.Ct at 2224. To the extent the Defendant has concerns about individual jurors, he should address them during voir dire and allow the Court to determine whether exclusion or additional follow-up is appropriate. 5. The State does not object to the use of individual voir dire during the jury selection process. The State agrees with the premise of the Defendant's argument that we must ask STATE'S RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 6 prospective jurors to be vulnerably honest, particularly where it comes to bias and to views on the death penalty. In light of this fact, the State does not object to the Defendant's suggestion that, if any aspect of voir dire is completed in a panel setting, that there be a process to address issues of bias outside the presence of other jurors.¹ As to the extent of questioning allowed, the State will respectfully defer to the wisdom of the Court, recognizing that Idaho's appellate courts have upheld a Court's ability to put reasonable time limits on voir dire. See State v. Dunlap, 155 Idaho at 363, 313 P.3d at 19. CONCLUSION As outlined above, the State has no objection to the Court following binding precedent. However, to the extent that the Defendant seeks to go beyond that, the State will likely object during voir dire proceedings. DATED this 24th day of March 2025. Malill Madison Allen Special Assistant Attorney General 1 Defendant specifically suggests that prospective jurors could be subjected to voir dire on issues of bias in chambers. Recognizing the Court's authority to conduct jury selection as the Court sees fit pursuant to Idaho Criminal Rule 24, the State takes no position on where such individual voir dire might occur so long as a record is made. STATE'S RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 7 CERTIFICATE OF DELIVERY I hereby certify that true and correct copies of the STATE'S RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 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 RESPONSE TO DEFENDANT'S VOIR DIRE MOTION 8