Court Filing
Electronically Filed
4/29/2025 2:48 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,
Plaintiff, CASE NUMBER CR01-24-31665
OBJECTION TO STATE'S MOTION
V. FOR EXAMINATION OF DEFENDANT
PURSUANT TO IDAHO CODE § 18-207
BRYAN C. KOHBERGER, AND FOR AN EXTENSION OF TIME
TO COMPLETE REBUTTAL PENALTY
Defendant. PHASE EXPERT DISCLOSURES COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby opposes the State's motion for an extension of time to disclose rebuttal expert witnesses and to
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-1
expand the scope of the prosecution's evaluation beyond the testing conducted by Mr. Kohberger's experts.
I. The State's Requested Extension Must Be Denied Because It Is Highly Prejudicial to Mr. Kohberger and It Is Not Supported by Good Cause.
The State has had comprehensive psychological reports from Dr. Ryan and Dr. Orr since January 23, 2025. They were both disclosed at the guilt phase expert deadline. Only now, days before the State's rebuttal deadline, does the State identify a new expert and request an additional 21 days from some future, as-yet-determined date to produce a report.
Jury selection in this case begins in fewer than 100 days. If the Court grants the State's motion, the Defense likely will not receive the expert report until, at most, 70 days before trial. As detailed in previous defense motions and at oral argument, every new disclosure by the State initiates a new cycle of fact investigation and expert analysis by the defense. The Defense already has grave concerns about its ability to review and respond to existing discovery; it will simply be impossible for counsel to incorporate a new expert opinion just weeks before the trial for Mr.
Kohberger's life begins.
At this late stage, any leniency afforded to the State with regard to discovery deadlines will cause a cascading effect of prejudice to Mr. Kohberger. Discussing late disclosure in the Brady context, the Second Circuit aptly articulated how last-minute discovery prejudices the defense:
When such a disclosure is first made on the eve of trial, or when trial is under way, the opportunity to use it may be impaired. The defense may be unable to divert resources from other initiatives and obligations that are or may seem more pressing. And the defense may be unable to assimilate the information into its case... Moreover, new witnesses or developments tend to throw existing strategies and preparation into disarray.
Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (internal citation omitted).
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-2
The prejudice to Mr. Kohberger is heightened because the prosecution's anticipated expert report is not merely rebuttal. The State seeks to perform new testing of Mr. Kohberger outside the scope of what the defense's experts conducted. Defense counsel cannot allow any potentially harmful or aggravating evidence to go unrebutted. Andrus v. Texas, 590 U.S. 806, 818-20 (2020) (defense counsel ineffective for failing to investigate and rebut prosecution's aggravating evidence); Rompilla v. Beard, 545 U.S. 374, 385-90 (2005) (same). In fact, if this Court allows the State to proffer new diagnoses or mental condition theories during rebuttal, Mr. Kohberger will be entitled to surrebuttal on those issues. United States v. Barnette, 211 F.3d 803, 821–22 (4th Cir.
2000) (trial court committed reversible error by prohibiting defendant from presenting surrebuttal at penalty phase of capital trial where evidence of alleged “ psychopathy ” was introduced for the first time during prosecution's rebuttal). The defense will thus need to review, analyze, and potentially retain its own additional expert (s) to decipher and assess the results of any new testing.
This cannot be done in the short window before trial, particularly given the unprecedented volume of discovery that counsel is still attempting to wade through. Even the time it takes for Mr.
Kohberger's defense team to file this objection and litigate this issue is time they cannot spend reviewing the 68 terabytes of discovery, following up on their own investigative leads, and developing his mitigation presentation.
As the Supreme Court has repeatedly held — and as Mr. Kohberger has reiterated in his pleadings and at oral argument— “ death is different. ” Ford v. Wainwright, 477 U.S. 399, 411 (1986). See also Woodson v. North Carolina, 428 U.S. 280, 305 (1976); Gardner v. Florida, 430 U.S. 349, 357-58 (1977); Lockett v. Ohio, 438 U.S. 586, 605 (1978); Caspari v. Bolden, 510 U.S.
383, 393 (1994); Ring v. Arizona, 536 U.S. 584, 605-06 (2002). Mr. Kohberger, like all capital defendants, is entitled to heightened due process protections to ensure that this ultimate and
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-3
irreversible sanction is not imposed arbitrarily or unjustly. Caspari v. Bolden, 510 U.S. 383, 393 (1994) (quoting Strickland v. Washington, 466 U.S. 668, 704-05 (1984) (Brennan, J., concurring in part and dissenting in part)) (“ [T] ime and again the [Supreme] Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case. ”); Eddings v. Oklahoma, 455 U.S. 104, 118 (1981) (O'Connor, J., concurring) (“ [T] his Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake. ”). The State's psychological evaluation of Mr. Kohberger is not a tangential issue unlikely to have any bearing on the outcome of this case. Under these circumstances, permitting the State to disclose new expert evidence on this issue so close to the start of trial violates Mr. Kohberger's right to due process and creates the unacceptable risk of an unreliable and unjust death sentence.
Moreover, the State's motion does not provide good cause for an extension. The Idaho Supreme Court recently addressed the requirement that a party show good cause for any request to amend a scheduling order:
Fashioning scheduling orders early in litigation, especially when those orders are based on a stipulation of counsel as was done here, makes it necessary for counsel to establish good cause to change those orders with more than counsel's assurances that good cause exists. Given burgeoning caseloads and crowded dockets, proof, in the form of [] facts... is not only appropriate, but to be expected.
Dodd v. Jones, No. 50748, 2025 WL 665547, at * 21 (Idaho Mar. 3, 2025), reh'g denied (Apr. 15, 2025). The State has not provided the necessary proof of good cause to warrant an extension of such a significant deadline so close to the trial date. The State does not provide any explanation as to why it did not confer with an expert well in advance of its known deadline or confer with
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-4
defense counsel about the nature and scheduling of an examination until only 22 days ahead of the Court's deadline for its own expert's report. The State does not provide any detail about why the prosecution's original expert could no longer perform the evaluation and why they only learned of this development 14 days before the Court's deadline. Nor does the prosecution explain why, despite receiving defense reports on January 23, 2025 — and thus being on notice of the precise mental condition issues that would be raised by the Defense — the State did not file its motion for an evaluation until the end of April, only one business day before the deadline to disclose its expert report.
The State is deliberately vague about how early they retained their original mental health expert, but at the latest, the State was considering an evaluation as early as mid-March. In a filing dated March 17, 2025, the prosecution wrote, “ the State may move to have Defendant examined by its own expert. See I.C. § 18-207 (4) (c). ” State's Response to Defendant's Motion in Limine # 4 at 2. Having received the reports in January, retaining a mental health expert, and formally disclosing to counsel and this Court in mid-March that it may move to examine the defendant, it is disingenuous for the State to now frame their request for extension as necessary because defense counsel does not stipulate to irrelevant personality testing. The prosecution did not broach the topic of an evaluation with defense counsel until April 2, 2025. See State's Exhibit S-2. Approximately three hours later, defense counsel requested information as to who the experts would be and what testing was proposed in order to determine whether the defense would consent or object. Id. The State then provided information that it would pursue personality testing and did not yet know its position as to whether defense counsel could be present. Id. Less than four hours later, defense counsel responded that it would object to the irrelevant testing because it is outside the scope of rebuttal, and reiterated that counsel wished to be present. Id. Thus, counsel responded to the State
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-5
with extreme haste as to not delay their evaluation. That the State then waited for weeks to file a motion and litigate the contested issues does not constitute “ good cause ” for delay.
Whether to extend deadlines is a matter within this Court's discretion. I.C.R. 45 (b) (1). It is time for this Court to exercise its discretion and shut off the firehose of new discovery from the State, particularly where, as here, the prosecution has failed to provide good cause for its requested extension. The State's motion for an extension of time must be denied.
II. The Personality Testing Proposed by the State's Expert Falls Outside the Scope of Proper Rebuttal Evidence and Violates Mr. Kohberger's Fifth Amendment Rights.¹ a. The State's Proposed Personality Testing Is Not Proper Rebuttal Because It Is Not Reasonably Tailored to the Mental Condition Evidence Proffered by the Defense.
" Rebuttal evidence is evidence which explains, repels, counteracts, or disproves evidence which has been introduced by or on behalf of the adverse party. ” State v. Butcher, 137 Idaho 125, 133 (Ct. App. 2002). “ [T] here must be a nexus between the purported rebuttal evidence and the evidence that the purported rebuttal evidence seeks to rebut. ” United States v. Stitt, 250 F.3d 878, 897-98 (4th Cir. 2001). See also Tanberg v. Sholtis, 401 F.3d 1151, 1166-67 (10th Cir. 2005) (“ Rebuttal evidence is not any evidence an aggrieved litigant may wish to admit in response to a topic introduced by his opponent; whether or not rebuttal evidence is admissible depends on ' whether the initial proof might affect the case and whether the rebuttal evidence fairly meets the initial proof. ") (internal citations omitted). In short, rebuttal testimony must be “ reasonably tailored to the evidence it seeks to refute. " Stitt, 250 F.3d at 897-98.
The State has not specified what testing its expert proposes to conduct. In addition to the arguments raised herein, Mr. Kohberger reserves the right to challenge the relevance, validity, and reliability of any testing by the State's expert or of the conclusions drawn from such testing.
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-6
This principle applies with equal force to proposed rebuttal testimony by experts. See Withrow v. Spears, 967 F. Supp. 2d 982, 1002 (D. Del. 2013) (“ [E] xpert reports that simply address the same general subject matter as a previously-submitted report, but do not directly contradict or rebut the actual contents of that prior report, do not qualify as proper rebuttal or reply reports. ");
Int'l Bus. Machines Corp. v. Fasco Indus., Inc., No. C-93-20326 RPA, 1995 WL 115421, at * 3 (N.D. Cal. Mar. 15, 1995) (“ [S] upplemental or ‘ rebuttal ' experts cannot put forth their own theories; they must restrict their testimony to attacking the theories offered by the adversary's experts. ").
The proposed personality testing by Dr. Gage is not proper rebuttal evidence because it is not reasonably tailored to refute the evaluations conducted by the defense's experts. The defense's proffered evidence concerns Mr. Kohberger's diagnoses of autism spectrum disorder (“ ASD ”), obsessive compulsive disorder (“ OCD ”), and attention-deficit hyperactivity disorder (“ ADHD ”), his history of disordered eating, and his history of substance abuse. The defense experts did not perform personality testing, diagnose Mr. Kohberger with a personality disorder, or provide any indication that such testing would be relevant to their opinions. In its April 18, 2025, Order Memorializing Oral Rulings on Motions in Limine, this Court noted “ the lack of evidence Defendant has been diagnosed with personality disorder or similar mental illness. ” Id. at 2-4.
Simply put, there is nothing in the defense's proffered expert testimony on the subject of personality disorders for the State to rebut.
b. Permitting the State to Conduct Personality Testing that Falls Outside the Scope of the Testing Conducted by the Defense's Mental Health Experts Would Violate Mr. Kohberger's Fifth Amendment Rights.
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-7
The State's proposed testing also violates Mr. Kohberger's Fifth Amendment right against self-incrimination. Any waiver effectuated by a defendant's decision to raise his mental condition is limited to the specific issues raised by the defense. See Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir. 2004) (Fifth Amendment waiver when defendant asserts mental health defense " is not limitless; it only allows the prosecution to use the interview to provide rebuttal to the psychiatric defense "); Hess v. Macaskill, 67 F.3d 307 (9th Cir. 1995) (examination of defendant by prosecution's expert did not violate Fifth Amendment where examination “ was limited ” and “ any opinions and evidence gained from the evaluations could be used only to rebut Hess ' battered woman's syndrome defense ”); United States v. Johnson, 383 F. Supp. 2d 1145, 1162 (N.D. Iowa
2005) (questions exceeding scope of examination necessary for prosecution's experts to rebut defendant's mental condition mitigation evidence would exceed scope of defendant's limited waiver of her Fifth Amendment right against self-incrimination); Centeno v. Superior Court, 117 Cal. App. 4th 30, 45 (2004) (requiring “ threshold determination ” that prosecution's proposed testing is reasonably related to mental condition raised by the defense; “ [o] therwise, there is a danger that defendants will be improperly subjected to mental examinations beyond the scope of the precise issue they have tendered and their resulting waiver of constitutional rights ”).
Even the cases cited by the State in its motion stand for this proposition. See Polvon v.
State, 682 S. W. 3d 651, 660 (Tex. App. 2024) (“ [A] trial court should limit a compelled psychiatric examination to rebuttal issues. ”); Hernandez v. Davis, 750 F. App'x 378, 383 (5th Cir. 2018) (" [T] he scope of [the Fifth Amendment] waiver is ‘ limited to the issue raised by the defense, ' and any testimony about the court-ordered psychiatric evaluation cannot go beyond this limited
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-8
rebuttal purpose. "). 2 Furthermore, the very statute under which the State has moved for an examination explicitly limits any waiver to “ evidence on the subject " raised by the defense. I.C. § 18-207 (4) (c) (“ Raising an issue of mental condition in a criminal proceeding shall constitute a waiver of any privilege that might otherwise be interposed to bar the production of evidence on the subject... ") (emphasis added).
The nature of personality testing guarantees that Mr. Kohberger's Fifth Amendment rights will be violated by the States ' proposed examination. Personality testing, such as the Minnesota Multiphasic Personality Inventory 2 (“ MMPI-2 ") and the Personality Assessment Inventory (" PAI "), are not neuropsychological tests, but rather self-administered personality testing instruments, or “ multi-scale inventories. ” They do not test for intelligence, academic achievement, cognitive functioning, learning and memory, motor functioning, or other brain dysfunction and impairments. Instead, such tests are used to assess an individual's personality traits, and contain a battery of invasive true / false questions, many of which seek very private information, and some of which could elicit potentially incriminating responses.
By way of example, the MMPI consists of hundreds of true-false questions.3 The subject is not asked to perform a timed task to assess the subject's cognitive skills and deficits; rather, the test is uniquely testimonial. The test subject provides ‘ true or false ' responses to written questions 2 The State cites Hernandez for the proposition that the prosecution's evaluation may go beyond the scope of the defense's evaluation. This is a mischaracterization of Hernandez, which was decided on its facts. The court did not hold that the State's evaluation was permitted to exceed the defense's; rather, the court found, as a factual matter, that the prosecution's evaluation did not go beyond the scope of that which was conducted by the defense's expert.
Hernandez, 750 F. App'x at 384.
3 The MMPI-2 consists of 567 questions, the MMPI-2 - RF consists of 338 questions, and the most recent MMPI-3 consists of 335 questions.
OBJECTION TO STATE'S MOTION FOR EXAMINATION
OF DEFENDANT PURSUANT TO IDAHO CODE § 18-207
AND FOR AN EXTENSION OF TIME TO COMPLETE
REBUTTAL PENALTY PHASE EXPERT DISCLOSURES Page-9
similar to the following: “ Sometimes I get so angry and upset I don't know what comes over me ”;
“ Sometimes when I was young I stole things ”; “ At times I have a strong urge to do something harmful or shocking ”; “ I have had peculiar and disturbing experiences that most other people have not had "; " I would like to do the work of a choir director ”; “ If I could get into the movies without paying and be sure I was not seen, I would probably do it "; " I