Court Filing
Filed: 05/01/2025 08:43:25 Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Deputy Clerk-Waters, Renee
LATAH COUNTY PROSECUTOR'S OFFICE
WILLIAM W. THOMPSON, JR., ISB No. 2613
PROSECUTING ATTORNEY
ASHLEY S. JENNINGS, ISB No. 8491
SENIOR DEPUTY PROSECUTING ATTORNEY
JOSHUA D. HURWIT, ISB. No. 9527
SPECIAL DEPUTY PROSECUTING ATTORNEY
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 DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA
STATE OF IDAHO, Case No. CR01-24-31665 Plaintiff,
REPLY IN SUPPORT OF
V. STATE'S MOTION FOR AN
EXAMINATION OF
BRYAN C. KOHBERGER, DEFENDANT PURSUANT TO
Defendant. IDAHO CODE § 18-207 AND FOR
AN EXTENSION OF TIME TO
COMPLETE REBUTTAL
PENALTY PHASE EXPERT
DISCLOSURES
TO: THE DEFENDANT, BRYAN CHRISTOPHER KOHBERGER,
AND COUNSEL
PLEASE TAKE NOTICE that the undersigned submits this Reply in Support of the State's Motion for an Examination of Defendant Pursuant to Idaho Code § 18-207 and for an Extension of Time to Complete Rebuttal Penalty Phase Expert Disclosures (the " Motion ").
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 1
INTRODUCTION
Through its Motion, the State seeks the opportunity afforded to it by Idaho Code § 18-207 to rebut defendant's mental condition expert witness testimony. Defendant seeks to prevent this.
He misconstrues the nature of the State's expert's proposed neuropsychology examination. He seeks to insert his counsel in the middle of the examination process. And he claims the Motion is untimely because the State should have raised this penalty phase rebuttal issue even before defendant's own penalty phase disclosures were due. In essence, defendant seeks to nullify Idaho Code § 18-207 in this case. The Court should reject his arguments and grant the State's Motion.
ARGUMENT
I. The State's Expert's Proposed Personality Testing is Proper.
The State's psychology expert proposes to include limited personality testing in his neuropsychology examination of defendant. In his declaration, the State's psychologist explains why, in his professional opinion, this is important. (Gage Decl. ¶¶ 4.) Personality testing is a way to validate (or rebut) both the reliability of how defendant presents himself and his underlying diagnoses, especially autism. (Gage Decl. ¶¶ 4.) Defendant does not directly address the State's psychologist's opinions and has not offered a declaration from his psychology experts to contradict the State's expert.
Instead, defendant sidesteps the issue with two misplaced arguments. First, he claims that personality testing is not proper rebuttal because it is outside the scope of what his own experts explored. This is wrong. Like defendant's expert, the State's expert will perform a neuropsychological examination focused on autism and OCD. The scope of the examination will remain neuropsychological; the State's expert will just use additional methods to complement and
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 2
supplement those used by defendant's experts. (Gage Decl. ¶ 4 (“ The battery [of tests] would serve to supplement the battery that Dr. Orr completed and provide some additional valuable information. ").) In this way, the present dispute is about the manner of the examination, not its scope. The defendant glosses over this distinction by citing cases in which the prosecution sought to explore a new diagnosis or mental health conditions. In United States v. Jackson, No. 2: 13-CR-00674- CAS, 2015 WL 4885997 (C.D. Cal. Aug. 13, 2015), the defendant had a traumatic brain injury and PTSD, but the government wanted to engage in “ broad personality test [ing]. ” Id. at * 1, 5. In United States v. Taylor, 320 F. Supp. 2d 790 (N.D. Ind. 2004), the defendant suffered from substance abuse disorder, and it appeared that the government wanted to conduct testing that went well beyond this condition. Id. at 794. And, in United States v. Williams, 731 F. Supp. 2d 1012 (D. Haw. 2010), the defendant raised his limited brain function as a mental capacity defense at the guilt phase and the government sought to find other diagnoses that it could use to establish guilt.¹ Id. at 1020. The courts in those cases limited the prosecution because the proposed examinations sought to establish new mental conditions. But see Taylor, 320 F. Supp. 2d at 794 (allowing personality testing to the extent in contained “ testing scales ” for substance abuse disorder).
But unlike in defendant's cited cases, the State's expert's proposed personality testing will remain focused on the same mental conditions diagnosed by defendant's experts. (See Gage Decl.
4.) Thus, the Court should not limit the State's expert's testing choices because they have the necessary “ nexus ” to the defense experts ' findings and are “ reasonably tailored to the evidence it 1 Notably, the government in Taylor and Williams sought to administer the PCL-R test, which the State's expert will not use in this case. (Gage Decl. 4.)
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 3
seeks to refute. ” (See Def. Obj. at 6 (citing United States v. Stitt, 250 F.3d 878, 897-98 (4th Cir.
2001).); Polvon v. State, 682 S.W.3d 651, 661 (Tex. 2024) (refusing to limit “ the type of examination that the State's expert may employ ").
Second, defendant claims that personality testing would violate his Fifth Amendment rights against self-incrimination. This concern overlooks the plain language of § 18-207. By putting his mental health at issue, defendant knowingly waived any privilege he previously held to preclude the State's expert from conducting an independent evaluation. See 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 [.] "). The entire purpose of § 18-207 is to prevent a party from taking the position defendant now takes: that he can put before the jury mental health evidence that has not been " fully subject to the adversarial process. " I.C. § 18-207 (4).
Defendant's concern is also overstated. He isolates certain questions from the MMPI that he argues call for incriminating responses. (Def. Obj. at 9-10.) But the current procedural posture is important. The purpose of the requested § 18-207 examination is to rebut mitigation evidence during the penalty phase, not to address guilt, and certainly not to seek admissions relevant to guilt.2 It is also important to note that questions in the assessments are not specific to this case.
And the answers to them will be analyzed by the State's expert psychologist to inform the opinions in his written report. It is those opinions — not the underlying answers to the personality tests— 2 As stated in the State's moving brief, the only anticipated caveat would be if defendant is able to present evidence about his mental conditions (e.g., autism or OCD) during the guilt phase. That would allow the State to present expert testimony to rebut or contextualize those conditions.
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 4
that the State may seek to put before the jury during the penalty phase. In other words, because the function of the personality assessments is to evaluate defendant's mental conditions — not to create testimonial evidence to be used against the defendant-personality testing is appropriate.
Moreover, the defendant will have the opportunity to object to any evidence arising from the § 18-207 examination, including the personality testing. So, completing the personality assessments does not violate his Fifth Amendment rights. Cf. State v. Reid, 981 S.W.2d 166, 173 (Tenn. 1998) (stating that disclosing a court-ordered mental health examination to prosecution “ does not violate the defendant's right against self-incrimination, provided the admissibility of any statements made by the defendant during the examination, and any ‘ fruits ' derived therefrom, is admitted only for impeachment or rebuttal of evidence of mental condition introduced by the defense at the sentencing phase of the trial ”).
For these reasons, the Court should not prevent the State's expert from conducting personality testing as part of his neuropsychological examination under § 18-207.
II. Defendant's Counsel Should Not Be Present in the Examination Room.
Based on its expert's declaration, the State requests that only its retained expert psychologist and defendant be present in the room during the neuropsychological examination.
(Gage Decl. 5.) This comports with standard psychology practice, as demonstrated by the fact that counsel was not present during the defense expert's examination of defendant. (Gage Decl. ¶¶ 8); see ABA Standards on Mental Health 7-3.5 (c) (ii) (available at https://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/mental_h ealth_standards_2016.authcheckdam.pdf, last visited April 22, 2025).
Defendant does not point to an Idaho case establishing a right for defendant to have counsel
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 5
present during a mental condition examination. Actually, defendant begins his analysis with ca case that supports the State's position. In Hughes v. State, 224 P.3d 515 (Idaho Ct. App. 2009), the court held that the Sixth Amendment right to counsel does not include the right have counsel present during a psychosexual examination. Id. at 524. That type of examination is analogous to the neuropsychological examination at issue here: it is conducted by a mental health professional using scientific methods of evaluation. Additionally, the examination in Hughes was ordered for the penalty phase, which is also true of the requested examination here.
Faced with this Idaho case, defendant turns to cases from other states, but they are distinguishable. (See Def. Obj. at 14.) Several involved examinations performed for the guilt phase, not the penalty phase. Another cited case involved a Washington statute that expressly provides that a defendant is entitled to have counsel present during a court-ordered examination.
State v. Hutchinson, 766 P.2d 447, 454 (Wash. 1989) (citing Wash St. 10.77.020 (4).). There is no such provision in § 18-207 or other Idaho law, which is telling.
Finally, defendant relies on case law involving presentence investigation interviews for the proposition that the § 18-207 examination is a “ critical stage ” that requires support by counsel.
(Def. Obj. at 14-15.) But the “ critical stage ” inquiry does not always mean counsel should be in the examination room. See White v. United States, 451 A.2d 848, 854 (D.C. Ct. App. 1982) (" [T] he fact that the examination proved to be a ‘ critical stage ' in this case does not require us to hold that appellant's Sixth Amendment right to assistance of counsel was abridged when his counsel was not present at the examination. ”). And defendant fails to recognize the differences between the questions asked during a presentence interview and those asked by a psychologist conducting a neuropsychological examination. In the former, an agent of the court asks about the crime and
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 6
addresses a defendant's culpability, remorse, and other sentencing factors. In the latter, a behavioral health professional uses scientific methods to evaluate a defendant's mental condition in order to make (or challenge) diagnoses. The differences in the purpose and nature of the respective examinations implicate a defendant's Sixth Amendment right to counsel to different extents. This explains why the Idaho Supreme Court recognized that a “ defendant has the right to the assistance of counsel, as opposed to the presence of counsel, during a compelled mental examination. " See State v. Payne, 199 P.3d 123, 152 (Idaho 2008) (emphasis added).
In the end, the State is not arguing that defendant's counsel cannot advise him in connection with the State's expert's neuropsychological examination. The State simply wants to preserve the reliability and validity of the examination. The Court should not permit defendant's attorney to be in the room.
III. The Court Should Grant the State its Requested Extension.
The State seeks an extension of time to make its rebuttal penalty phase experts so that its expert can conduct the § 18-207 examination and prepare his report. Specifically, the State requests a deadline of 21 days after the examination is completed. Defendant objects on two grounds, both of which the Court should overrule.
First, defendant argues that the State has not shown good cause for the extension because defendant disclosed mental condition expert reports in January, which he believes should have prompted the State to make its Motion. But § 18-207 (4) (c) does not contain a deadline to seek an examination, and defendant ignores how the Scheduling Order in this case was set up. Defendant's penalty phase expert disclosures were due March 31, 2025, and the State's rebuttal disclosures were due April 28, 2025. The State was entitled to wait until defendant made his disclosures to
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 7
determine which experts it needed for rebuttal and whether a § 18-207 examination would be necessary. Indeed, defendant's psychologist and forensic psychiatrist disclosed amended reports on March 31, 2025, and defendant disclosed three other mental condition expert reports that day.
The State has acted diligently. Prior to defendant's disclosure deadline, the State had retained a psychologist, and it requested a § 18-207 examination two days after defendant's disclosures and with weeks to go before its rebuttal deadline.3 Perhaps the State should have anticipated that the instant disputes would arise and delay the examination, but it in no way waived its rights under § 18-207. Good cause exists for the requested extension given the volume and nature of defendant's disclosures and the need to ask the Court to resolve the parties ' disputes.
Second, defendant argues that if the Court grants the State an extension, he will not have enough time to review and address the State's disclosures. Yet, he acknowledges that, if the State's motion is granted, he will receive the disclosures approximately 70 days before jury selection.
(Def. Obj. at 2.) This is ample time to review and address expert disclosures that most likely will not be raised until the rebuttal portion of the penalty phase in this case. This situation is a far cry from the situation in defendant's cited case of Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001), in which the state made a potential Brady disclosure relevant to guilt (as opposed to rebuttal penalty phase evidence) three business days before trial. Id. at 93. Defendant is not faced with an “ eve of trial " disclosure here, id. at 101, especially because he already has multiple mental health experts lined up to help him address the State's expert disclosures. Defendant will not be prejudiced by 3 Defendant criticizes the State for not elaborating on why its initial expert withdrew. (Def. Obj. at 5.) The State does not believe it is necessary or proper to relay that individual's reasons given that they are no longer involved in the case.
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 8
the requested extension.
CONCLUSION
For the foregoing reasons, the Court should grant the State's Motion in its entirety.
DATED this 1st day of May 2025.
WILLIAM W. THOMPSON, JR. JOSHUA D. HURWIT
Prosecuting Attorney Special Deputy Prosecuting Attorney
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 9
CERTIFICATE OF DELIVERY
I hereby certify that true and correct copies of the REPLY IN SUPPORT OF STATE'S
MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO IDAHO CODE § 18-
207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY PHASE
EXPERT DISCLOSURES 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 info@annetaylorlaw.com Hand Delivered Dated this 1st day of May 2025.
Smey acel
REPLY IN SUPPORT OF STATE'S MOTION FOR AN EXAMINATION OF DEFENDANT PURSUANT TO
IDAHO CODE § 18-207 AND FOR AN EXTENSION OF TIME TO COMPLETE REBUTTAL PENALTY
PHASE EXPERT DISCLOSURES 10