Defendant Reply Regarding Expert Testimony

Electronically Filed
3/24/2025 5:56 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court Anne Taylor Law, PLLC By: Jennifer Keyes, Deputy Clerk 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,
REPLY TO STATE'S RESPONSE TO

V. DEFENDANT'S MOTION IN LIMINE # 2

BRYAN C. KOHBERGER, RE: VAGUE AND UNDISCLOSED

EXPERT TESTIMONY

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby replies to the State's Response to Motion in Limine 2 RE: Vague and Undisclosed Expert Testimony filed with the Court on March 17, 2025.

REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION

IN LIMINE # 2 RE: VAGUE AND UNDISCLOSED EXPERT TESTIMONY Page 1

Latah County began prosecuting Mr. Kohberger in December of 2022. Discovery was filtered to Mr. Kohberger in a slow, disorganized and tedious fashion. The State had the benefit of 6 weeks, access to the scene, law enforcement and experts analyzing the scene, experts ready and available to assist with search warrants and expert advice. Hundreds of law enforcement officers assisted in the case. Access to the investigating with assisting law enforcement and experts meant that prosecutors did not have to filter through 68 terabytes of information to be sure the right information was at the fingertips of the expert.

The reality and gravity of 68 terabytes of information cannot be overstated. Mr.

Kohberger's Capital Defense team has spent over two years devouring as much of the data as possible. The team has not completed review. His team does not have hundreds of people to locate and talk about various pieces of information contained in the discovery. The State does.

Mr. Kohberger is protected by the U. S. Constitution and the Constitution of Idaho. He has the right to a fair trial, to have effective assistance of counsel, to confront evidence against him.

He has the right to NOT be convicted unless the State proves its case beyond a reasonable doubt.

The State bears the burden of proof. The State has ethical duties, under the Constitution, criminal and evidentiary rules and Orders of this court, to disclose expert opinion and what it would rely on in its case against Mr. Kohberger. Instead, the State provided vague, loose topic area responses for the experts they had worked closely with. These same experts have been working with the State since the beginning of the case. The State's disclosures were, for the most part abysmal.

Still, at it relates to 67 electronic devices and third party warrant returns, the State has not disclosed any expert opinions or disclosures of what it intends to rely on. The State's disclosures can only be described as sandbagging. In many cases, it appears that the State's initial disclosures resembled a laundry list of topics and then once Mr. Kohberger complied with the Court's order, the State took advantage of learning a great deal about Mr. Kohberger's experts and evidence, and tailored new disclosures to address Mr. Kohberger's experts. These are not “ rebuttal ” disclosures,
REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION

IN LIMINE # 2 RE: VAGUE AND UNDISCLOSED EXPERT TESTIMONY Page 2

they are the State's case in chief. Numerous examples are laid out in detail in Exhibit 1. One example is the State's Amazon expert Cox, a second and more extreme example is FBI SA Ballance. Many of these expert disclosures are based on evidence and data that has still not been disclosed to Mr. Kohberger. This is particularly true of SA Ballance, whose ever changing reports and opinions are based on material that has not been provided to Mr. Kohberger.

To assist the Court, Mr. Kohberger appends Exhibit 1 to this motion as a guide to the chronology of the disclosures and the lack of detail. It identifies each expert and the limits of the disclosure. The State cannot be allowed to benefit from what they have done. Mr. Kohberger, recognizing what the State was doing, filed a motion to compel disclosures and a motion to extend his deadline. His motion to extend disclosure deadline was denied. During his motion to compel this court expressed intent to apply the rules if disclosures were not properly made. The State, then, with the advantage of Mr. Kohberger's expert disclosures, has continued to trickle new opinions to the defense.

The State cannot be allowed to benefit at the expense of Mr. Kohberger's right to a fair trial, confrontation, due process and assistance of counsel. The State cannot be allowed to ignore Mr. Kohberger's rights, shirk its duty and get a free pass on the rules. The State must be held to the limits of its timely disclosures.

DATED this 24 day of March, 2025.

an
BY:

ANNE C. TAYLOR

ANNE TAYLOR LAW, PLLC

REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION

IN LIMINE # 2 RE: VAGUE AND UNDISCLOSED EXPERT TESTIMONY Page 3

CERTIFICATE OF DELIVERY

I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 24 day of March, 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
REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION

IN LIMINE # 2 RE: VAGUE AND UNDISCLOSED EXPERT TESTIMONY Page 4

Anderson Initial Disclosure 12/18/24 This witness is an expert from NMS labs that performs testing for substances a deceased has consumed. His work encompassed EC, XK and KG. Reports are included. No other opinion has been provided.

Testimony should be limited to involvement and opinion within the report which is no more than quantity of drugs found in blood.

Ayers This witness works at Idaho State Police Forensics Lab. She was on scene at 1122 King on November 17, 2022. She has continued to work at ISP forensics since. She has been accessible to the State beginning 4 days after the incident and forward.

Initial disclosure 12/18/24 -
Topic areas: Ayers can be expected to testify as to the search and collection of evidence, such as presumptive blood testing, the collection of buccal swabs, swabbing for potential DNA evidence, collection of hair samples, and / or latent prints. Ayers may also discuss the process of photographing crime scenes. Additionally, Ayers may discuss lab protocols and procedures including the disposition of evidence.

Lab Report 25 was disclosed as her expert opinion.

Rebuttal disclosure 2/17/25 She actively participated in using the LizQ imaging system, " marking blood stains, reviewing evidence, discussing which evidence may or may not be relevant to the crime, liaising with detectives on the case, and working with other entities to support the needs of the investigation. " Much of this disclosure describes what can be done and what a " crime scene team " does.

These descriptions of what was done are included, but the disclosure does not clearly state what she did or what her opinion is.

Additional disclosure 3/3/25 This disclosure starts with general scene processing before another topic area is disclosed.

" Ayers will testify about DNA. Deoxyribonucleic acid (DNA) is genetic material contained in human cells that may be utilized for human identification. DNA may be present on an item in the form of biological materials such as blood, semen, and saliva or may be left on an item when it is handled (touch DNA). Biological evidence and possible / potential DNA evidence is collected for preservation and may be sent
DEFENDANT'S

EXHIBIT NO. 1

IDENTIFICATION / EVIDENCE

CR01-24-31665

DATE: 3/24/25

for further testing by qualified DNA analysts. Crime Scene personnel do not test or screen for DNA specifically. " The disclosure continues describing processing and testing. The State does not disclose any opinions she may have about what was done or why. The State does not provide any opinions related to her knowledge of DNA in this case or " touch ” DNA.

The State has not made any expert disclosure other than lab report 25. The court must limit Ayers testimony to her qualifying background and her work and opinion as stated in report 25. Attached as (Experts 1) Ballance SA Ballance is an FBI agent, specializing in cell site location information and a member of the Cellular Analysis and Survey Team (CAST). He worked alongside Moscow Police Detectives. He was co-located in Moscow. He assisted in search warrant applications and was communicating with the State and detectives at least as early as November 15, 2022. He assisted the State in securing digit information, analyzing information as well as conducting interviews as part of the investigation.

Expert Disclosure 12/18/24 The initial disclosure stated he would testify about how cell towers work and interact with cell phones. His testimony would include what records, related to personal cell phones are available and how they are used.

" SA Ballance will testify consistent with the historical cellular phone data provided to Defendant in discovery. SA Ballance will explain the methodology used to create his report, which is attached hereto as Exhibit S-2 (b). SA Ballance will discuss how call detail records provided by AT & T were used to create cell site maps contained in his report, including his corroboration of the mapping with the records provided. SA Ballance will also explain in detail what the mapping in his report reflects ".

It is noteworthy that the State has NEVER disclosed SA Balance's methodology used to create his report. He has never disclosed how his maps were created. SA Ballance has omitted over 90% of the AT & T data during the relevant times he chose to map. There is no disclosure as to why this data was omitted.

" SA Ballance will provide his opinion as to the general locations in which the target cellular telephones were located at various times before and after the homicides at 1122 King Road and the cellular phones ' direction of travel. That testimony will rely on information furnished by cellular phone providers concerning which cell towers the cellular telephones connected with during those times. SA Ballance may also testify regarding which cellular tower sectors were utilized for the relevant data and explain that the direction of the cellular tower sector utilized can indicate the general location of the cell phone relative to the tower utilized. " The State has NEVER produced an actual opinion by SA Balance about " the general location (Mr. Kohberger's)... cellular telephone was at various times before and after the homicides at 1122 King Road and the cellular phone [' s] direction of travel.

2/17/25 Rebuttal Disclosure The State responds to Defense disclosures but in doing so it continues to refuse to provide expert analysis and opinion.

" The FBI Cellular Analysis Survey Team (CAST) conducts drive testing using a Gladiator Autonomous Receiver (GAR) developed by Gladiator Forensics. The GAR collects the data, which is then analyzed by Gladiator Forensics software. The software creates the coverage maps seen on several pages of the report. The coverage maps are created using the actual measurements taken by the GAR and interpolation using the natural neighbor algorithm. ” The disclosure does not state who produced the maps or how they were analyzed. The disclosure lacks an opinion about the mapping program or its production. The State has not disclosed records that verify the mapping program, nor has it stated Balance is an expert in mapping. SA Ballance went to great lengths to obtain raw drive test data in this case. Despite those efforts he has only produced the mapping of that data for less than 5% of the relevant cell sites in his work product. There have been no disclosures as to why he has omitted 95% of the relevant coverage maps.

The disclosure goes on, “ FBI CAST examines each transaction in the raw records to determine reliability, based on several factors. As an example, when an AT & T data session is initiated on AT & T's network that is not following a timeout of a previous data session, AT & T records the first cell site and then the subsequent cell sites associated with the session if applicable. " The State does not disclose SA Balance's review of reliability. The State is creating wiggle room for Balance to testify to something undisclosed at this time. This particular area impacts seven minutes of time and exculpatory information. This is the seven minutes between 2:47 and 2:54 am.

The State applied for search warrants and its arrest warrant claiming Mr. Kohberger's phone stopped reporting to the network at 2:47 am. The State later had to concede, based on its own discovery disclosures, that the phone went off the network at 2:54 am. Between the time of 2:47 and 2:54 am, while the phone was on and receiving service it was utilizing cell towers. The phone was not stationary and utilizing only one tower. The phone was moving during the seven minutes.

During the seven minutes the towers hand-off service as the phone is moving. These handoffs, once analyzed, locate the direction of movement and the location of the phone when it stops reporting at 2:54 am. The State asserts SA Ballance mapped this data but has not produced it.

The State must be required to disclose what it is not saying here. The State must not be allowed to ambush Mr. Kohberger at trial by stating something that is not grounded in record.

The State goes on to say handoff data is analyzed on page 13 of the CAST PowerPoint. There is no analysis. SA Ballance has not mapped a single handoff in the work product produced. These ignored handoffs are the handoffs occurring during the described 7 minutes – analyzing those depict exculpatory evidence. It is important to understand handoff data makes up more than 85% of the defendant's AT & T network connections. SA Ballance's opinion as to why he can omit those connections in one part of his report while relying on them in others must be clearly stated.

The State does not provide basis or analysis for SA Balance's claim that Mr. Kohberger was using a tower that services the King Road address. Instead, they say this:
" Generating a report of all of the defendant's movements from June 2022 to December 2022 would be overly broad, unnecessary, and prolong the jury's service with details not relevant to prosecution. ” With the help of this very expert the State sought and received AT & T phone records for Mr.

Kohberger from June 2022 through December 2022. In affidavits supporting search and arrest the State averred that Mr. Kohberger's phone data depicted numerous occasions where it utilized a tower servicing the King Road address. The State supplied SA Ballance as an expert and disclosed his PowerPoint with slides 29 & 30, claiming this same thing. It is noteworthy that the dates of this alleged behavior have been changed over the course of this expert's work. What the State has failed to do is provide the analysis of the claim. Mr. Kohberger will face his Capital Jury without the State backing up this claim. The State does not have connection between Mr. Kohberger and anyone that was at 1122 King Road. The State puts this information out to attempt to establish a connection. While the State has chosen not to disclose the analysis Mr. Kohberger has disclosed the analysis. The analysis shows the falsity of the State's experts slide. The real analysis is exculpatory to Mr. Kohberger. This must be excluded from the States presentation.

The State provides its reason the CAST draft and CAST final PowerPoints are different in size.

66... CAST utilizes a peer review process of any work product prior to it being presented at trial. This peer review process is meant to ensure the final report is accurate, provides clarity to raw cellular records, and relevance to the State's case presentation. ” The State has failed to provide ANY documentation of its peer review process and opinions as to why changes were made.

This disclosure addresses AT & T Timing advance records. Mr. Kohberger respectfully requests the Court look to the pleading and affidavit he filed in response to the States Motion on that topic.

Supplemental Disclosure 3/3/25 This disclosure advises the court and counsel that SA Ballance plans to testify by summary from various AT & T documents and utilize his own created summary as exhibits in place of the actual record. The State has not supplied such documents, unless it is the PowerPoint. If that is the case these documents are data that are the result of an undisclosed analysis and interpretation of the data.

This disclosure advises SA Balance will testify as follows:
" Page 13 depicts cellular phone usage by the 8458 phone on November 13, 2022, and Ballance is expected to testify that when the 8458 phone interacted with the AT & T network at 2:47:29 a.m., the phone was not at the Bryan Kohberger residence, marked " BK " on the map, rather it was southeast of the Bryan Kohberger residence as depicted by the drive test data. Ballance is also expected to testify that he analyzed additional handoff data that occurred during this data session and that the 8458 phone stopped communicating with the network at 2:54:45. "

The State has NOT disclosed an analysis or WHERE SA Ballance will claim the phone was located. These are the 7 critical minutes that contain exculpatory evidence.

" Page 28 shows a map that includes 1122 King Road, Moscow, Idaho, represented by the " CS " icon and a yellow circle that represents a 100 meter radius around the Crime Scene. Ballance will explain that he conducted analysis of all the cell sites in the area that provided coverage to the Crime Scene and identified any cell sites that drive test data showed coverage that included this 100 meter radius around the Crime Scene. " The State has NOT disclosed this analysis.

" Pages 29 and 30 represent any time that the 8458 Phone utilized a cell site identified as part of Page 28, between the hours of 10:00 p.m. and 4:00 a.m. (23 separate instances between July 9, 2022, to November 7, 2022). Ballance will testify that the 8458 Phone used cell sites consistent with being at the crime scene during these dates and times. Ballance will further testify that the hours between 10:00 p.m. and 4:00 a.m. were identified by the investigative team as times of interest. " The State has NOT disclosed its analysis. In its 2/17/25 disclosure it was these times the State claimed was cumbersome and a waste of time to analyze.

Mr. Kohberger provides Exhibit 2, affidavit of Sy Ray, to support his motion to exclude SA Ballance's testimony. This witness must be excluded.

Barnhart, Heather AND Jared Initial Disclosure 12/18/24 The disclosures leave out any analysis and any real opinion about " user behavior and actions on a PC and opinions of gaps ".

Rebuttal Disclosure 2/17/25 This disclosure advised Mr. Kohberger his experts needed to do a better disclosure so the State could rebut his expert.

Testimony at trial must be limited to what these experts examined the processes used and identify things found as contained in the disclosure. The experts have not provided an option about user behavior, only that gaps are abn