Court Filing
Electronically Filed
3/17/2025 2:48 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,
DEFENDANT'S RESPONSE TO
V. STATE'S MOTION IN LIMINE
BRYAN C. KOHBERGER, RE: NEUROPSYCHOLOGICAL AND
PSYCHIATRIC EVIDENCE
Defendant.
COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby responds to the State's Motion in Limine Re: Neuropsychological and Psychiatric Evidence¹, filed 1 Mr. Kohberger has filed several related motions that will be argued concurrently with this motion. See Motion to
Strike Death Penalty Re: Autism Spectrum Disorder, filed 2/24/25, and Motion in Limine # 4 Re: Using the Terms Psychopath or Sociopath, filed 2/24/25. # 13 RE: Conditions as an Aggravator
DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE
RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE Page 1
on February 21, 2025. The State objects to the proposed testimony of Rachel L. Orr, PsyD., ABPN- CN (Defendant's Exhibit D7) and Eileen P. Ryan, DO, DFAPA (Defendant's Exhibit D13) arguing that the proposed testimony is outside of the mental condition evidence allowable under Idaho Code §18-207 (3). This response is made pursuant to due process, I.R.E. 106 for a complete defense, and a fair trial guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 13 of the Idaho Constitution.
The minute that jury selection begins, jurors will begin to study and analyze Mr.
Kohberger's physical presence. They will watch his every move and pass judgment on him every minute of the jury trial simply based on how he looks and reacts to the presentation of certain evidence and comments about him. Mr. Kohberger must be able to present testimony to the jury that he has certain physical disorders. It will assist the trier of fact to know his physical presentation, including nonverbal reactions in the courtroom, is explained by his physical condition. To exclude this evidence will result in unfair bias that could cause a wrongful conviction. This objection is supported by the Declaration of Dr. Jeffrey Lewine, an expert in neuroscience and neuroimaging. See Attached Defense Exhibit D-1.
Mr. Kohberger in no way suggests that expert testimony related to his Autism Spectrum Disorder (“ ASD ”), Obsessive Compulsive Disorder (“ OCD ”), and Developmental Coordination Disorder are for the purpose of showing that he does not know right from wrong. He has at all times and continues to assert his actual innocence in this case. The State correctly noted in its ' motion, Mr. Kohberger's disclosure states that Dr. Orr's testimony and Dr. Ryan's testimony “ is not intended to be a mental element defense pursuant to Idaho Code §18-207; but rather this testimony about state of mind as well as factual defense testimony to anticipated testimony elicited by the State. " (Defendant's Exhibit D7-A, p. 3424; Defendant's Exhibit D13-A, p. 3908). Idaho Code §18-207 is “ not limited to the admission of either direct or rebuttal expert testimony to elements of the crime. ” State v. Samuel, 165 Idaho 746, 758, 452 P.3d 768, 780 (2019). Because
DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE
RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE Page 2
of the statute's broad application, the Idaho Supreme Court has determined that Idaho Code §18- 207 “ applies to legal proceedings before trial, including pretrial motions. ” Id.
The threshold test for the admission of expert testimony is whether the scientific, or other specialized knowledge of the expert will assist the trier of fact to understand the evidence or determine a fact in issue. I.R.E. 702. The function of the expert “ is to provide testimony that is beyond the common sense, experience, and education of the average juror. ” State v. Hester, 114 Idaho 688, 694, 760 P.2d 27, 33 (1988). Where the normal experience and qualifications of lay jurors permit them to draw proper conclusions from given facts and circumstances, then expert conclusions or opinions are inadmissible. Id. at 696, 760 P.2d at 35.
In this case it is not the normal experience and qualifications of lay jurors to understand ASD, OCD or Developmental Coordination Disorder. Expert testimony is necessary.
Autism Spectrum Disorder (“ ASD ”) The anticipated testimony of Dr. Orr and Dr. Ryan is relevant to explain that Mr.
Kohberger's ASD diagnosis is a physical condition and how it presents in his demeanor. Mr.
Kohberger " has met the criteria for this diagnosis since childhood and that it is not a ‘ convenient ' diagnosis given his current legal situation and jeopardy. ” (Defendant Exhibit D13-B, p. 3938). The anticipated testimony of Dr. Orr and Dr. Ryan is relevant to explaining how the behaviors and mannerisms presented by Mr. Kohberger are consistent with an individual having ASD. In addition to the opinions of Dr. Orr and Dr. Ryan, the Declaration of Dr. Lewine explains that neuroimaging of Mr. Kohberger's brain supports the ASD diagnosis.
DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE
RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE Page 3
ASD is neurological disorder that is physical. While most people ordinarily think of ASD as a mental health condition², it is “ a neurological and developmental disorder³ that affects how people interact with others, communicate, learn, and behave. ” (Defendant's Motion to Strike Death
Penalty Re: Autism Spectrum Disorder, p. 4). According to the United States Government National Institute of Mental Health, “ Autism spectrum disorder (ASD) is a neurological and developmental disorder that affects how people interact with others, communicate, learn, and behave ” (Autism Spectrum Disorder-National Institute of Mental Health (NIMH), last retrieved March 16, 2025).
As a neurological disorder ASD is associated with structural and functional (i.e., physical) defects in the tissues of the brain that can't be seen when you look at a person, but it can be observed with proper microscopic examination and in some individuals through the use of quantitative analyses of magnetic resonance imaging of the brain, such as the case with Mr. Kohberger (see attached declaration of Dr. Jeffrey Lewine). Research on large groups of persons with ASD has indicated the presence of structural differences in the brains of these groups versus those of individuals with typical neurobiological development, which also supports the conclusion of the NIMH and others that ASD is a neurological disorder, imaging of Mr. Kohberger's brain as reported in Dr. Lewine's attached declaration shows findings of structural differences in the physical make up of his brain in areas commonly associated with the control and expression of behaviors commonly seen in ASD and listed below as taken from the NIMH web site. Symptoms of and actual behaviors commonly associated with obsessive compulsive disorder (“ OCD ”) are common in people with
ASD.
2 Several Idaho statutes list conditions that fall within the meaning of serious mental health illness. See. I.C. §67- 5761A (2) (a) (Mental Health Parity in State Group Insurance); I.C. §66-1403 (9) (Definitions, Secure Treatment Facility Act). Neither of these statutes specifically list ASD.
3 In Idaho, developmental disability has been defined as a chronic disability of an individual which appears before the age of twenty-two which is attributable to an impairment such as autism. I.C. §39-4604 (4) (a); §39-5102 (2) (a);
I.C. §66-402 (5) (a).
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As a physical condition, ASD may not be as noticeable as some physical conditions like a missing arm. If Mr. Kohberger had the physical disability of missing an arm, the jury would not require explanation about how such a physical condition may impact the case. ASD is visible in some ways that will be apparent to a jury but requires explanation. Without explanation, the way that the public perceives the behaviors and mannerisms of someone with ASD is not always favorable and may be prejudicial. While Mr. Kohberger's presentation is highly consistent with ASD (Exhibit D7-B, p. 3440), without explanation others may misinterpret and misidentify Mr.
Kohberger's behaviors and cast them in a more sinister light. (Exhibit D13-B, p. 3937). For example, he does not show emotion on his face, he has a flat affect, he sits very still and holds his hands in the same position, he has a piercing stare, he does not show expected reactions, facial expressions do not reflect what he is feeling, he is stiff in body posture, he has prosody in speech, uses repetitive phrases and large words, and has developmental dexterity problems. Many of his behavioral characteristics are known to be commonly associated with the presence of ASD and are clearly relevant to the interpretation of his behavior in the courtroom by the jury and may also be relevant evidence regarding the rebuttal of evidence as to the commission of the crime itself.
Further explanation about ASD by the United States Government National Institute of Mental Health (" NIMH ") is helpful. The NIMH provides the following on its web site:
The list below gives some examples of different types of behaviors that are common among people diagnosed with ASD. Not all people with ASD will have all behaviors, but most will have several of the behaviors listed below.
Social communication and social interaction behaviors may include:
• Making little or inconsistent eye contact
• Appearing not to look at or listen to people who are talking
• Infrequently sharing interest, emotion, or enjoyment of objects or activities (including infrequently pointing at or showing things to others)
• Not responding or being slow to respond to one's name or other verbal bids for attention
• Having difficulties with the back and forth of conversation 4 https://www.nimh.nih.gov/health/publications/autism-spectrum-disorder
DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE
RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE Page 5
• Often talking at length about a subject of interest without considering social cues or conversational give-and-take
• Displaying facial expressions, movements, and gestures that do not match what is being said
• Having an unusual tone of voice that may sound flat, lacking emotion or tonal variation
• Having trouble understanding another person's point of view or being unable to predict or understand other people's actions
• Difficulties adjusting behavior to different social situations
• Difficulties sharing in imaginative play or in making friends Restrictive / repetitive behaviors may include:
• Repeating certain behaviors or having unusual behaviors, such as repeating words or phrases (a behavior called echolalia)
• Having a lasting intense interest in specific topics, such as numbers, details, or facts
• Showing overly focused interests, such as with moving objects or with parts of objects
• Becoming upset by slight changes in a routine and having difficulty with transitions Autistic people often have sensory differences such as:
• Being more sensitive or less sensitive than other people to sensory input, such as light, sound, clothing, or temperature People with ASD also may experience sleep problems and irritability.
Based upon a reasoned analysis of discovery provided by the State to date, Mr. Kohberger's behaviors that are attributable to his ASD and on this list of common behaviors of persons with ASD as provided by the NIMH, along with other behaviors attributable to his neurological condition must be presented to the jury to confront and rebut certain evidence to be proffered by the State.
Obsessive Compulsive Disorder (“ OCD ”) OCD can be an independent diagnosis but is also a set of symptomatic behaviors that are often comorbid in ASD as with Mr. Kohberger's ASD. Notable for example on the above NIMH list of behavioral issues commonly associated with ASD, Mr. Kohberger has sleep difficulties and subsequently developed a habit of night driving or running to decompress, such behaviors being present most of his life. He also engages in frequent compulsive hand washing, wears gloves to
DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE
RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE Page 6
avoid germs, has a fear of things getting into his eyes, changes his shower curtain frequently to avoid exposure to mold, and avoids anything he views as contaminating. If the State elicits testimony at trial related to these types of facts that are used to build circumstantially the elements of the crime or show Mr. Kohberger's actions as reflecting his state of mind or other elements of the crime, he will refute that evidence through expert testimony as behaviors related to his OCD and his ASD. By way of specific example, the State has continued to claim that Mr. Kohberger was wearing gloves on the night of his arrest and placing trash in baggies. The State asserts that this demonstrates that he had consciousness of guilt and was trying either to hide his DNA or engage in the cleaning of his car. This is highly prejudicial and misleading. Mr. Kohberger frequently wears gloves to avoid germs on surfaces. He was not cleaning his car on the night of his arrest, he was awake at night, as is typical for him, and he was cleaning his bathroom.
While testimony related to these topics may not be relevant until the State opens the door by eliciting testimony on these issues, once it does, Mr. Kohberger must be allowed to provide expert testimony refuting the State's witnesses. Such relevant evidence can assist the trier of fact in evaluating circumstantial evidence the State may put forward and since all such testimony would be subject to vigorous cross-examination, it would clarify and not confuse jurors.
Developmental Coordination Disorder Mr. Kohberger suffers from deficits in fine motor dexterity and visual motor function.
Clearly these are physical issues. He has experienced these physical impairments all of his life.
The State has disclosed evidence that law enforcement will testify that they did test runs at 1122 King Road and that it is possible to commit four homicides in a time frame of only minutes including walking to and from a car and removing clothing that would be covered in blood Additionally, the State has disclosed a forensic pathologist who will testify regarding manner of death, injuries, and specific wounds on the deceased. Mr. Kohberger has disclosed a forensic pathologist who has some differing opinions including injury and specific wounds on the deceased.
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It will be relevant for the jury to know that Mr. Kohberger has a developmental coordination disorder that impacts his fine motor dexterity and visual motor function. Such speed and coordination are not possible for him.
CONCLUSION
Mr. Kohberger has a right to confront the witnesses and evidence presented by the State and due process under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and the Article I, Section 13 of the Idaho Constitution. This includes presenting evidence to rebut the case against him.
The Court should deny the State's motion to limine to exclude Neuropsychological and Psychiatric Evidence. More specifically, the Court should allow Dr. Orr and Dr. Ryan to testify.
The physical disorder of ASD should be allowed at the outset of trial. Issues related to his OCD symptoms that are an outgrowth of his neurological disorder, aka ASD (see NIMH quotes above) and Developmental Coordination Disorder may depend on the evidence the State elicits as the trial proceeds.
DATED this 17th day of March, 2025.
Ma
ELÍSA G. MASSOTH
ELISA G. MASSOTH, PLLC ATTORNEY
DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE
RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE Page 8
CERTIFICATE OF DELIVERY
I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 17 day of March, 2025, addressed to:
Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: emassoth@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
DEFENDANT'S RESPONSE TO STATE'S MOTION IN LIMINE
RE: NEUROPSYCHOLOGICAL AND PSYCHIATRIC EVIDENCE Page 9
Neuroscience Expert Jeffrey David Lewine, Ph.D.
Consulting Chief Executive Officer & President Services Of jlewine@necsoa.com/ 505-252-1153 America Declaration of Jeffrey David Lewine, B.S., M.S., Ph.D.
I, Jeffrey David Lewine, swear under penalties of perjury that the information in this declaration is true and correct to the best of my knowledge.
1. My name is Jeffrey David Lewine, Ph.D.
2. I am over the age of eighteen, mentally competent, and make this declaration freely, based on my own personal knowledge.
3. I have BS, MS, and PhD degrees in Neuroscience from the University of Rochester, plus postdoctoral training in Biophysics and Neuroscience as a Director's Fellow at Los Alamos National Laboratory.
4. Over my career, I have had held academic appointments in multiple University departments, including appointments in Neurology (University of Kansas, University of New Mexico);
Radiology (University of New Mexico, University of Utah), and Psychiatry and Behavioral Sciences (University of Kansas).
5. I presently hold multiple academic and business related titles and positions, as outlined below.
a. I am the CEO and President of Neuroscience Expert Consulting Services of America (NECSOA LLC.). NECSOA provides data analysis and consulting services, especially with respect to legal proceedings.
b. I am the CEO and CSO of the Center for Advanced Diagnostics, Evaluation and Therapeutics (CADET NM Inc). CADET NM Inc is involved in the development and evaluation of novel therapeutics for neurodevelopmental disorders, tinnitus, and TBI.
c. I am the CEO and CSO of CADET Scientific LLC. CADET Scientific is engaged in basic research on neurodevelopmental disorders, TBI, PTSD, and dementia.
d. I am an Affiliate Professor of Translational Neuroscience at the Mind Research Network (MRN). MRN is a 501 (c) 3 organization initially established through a $ 60M allocation from the Unites States Congress. Activities focus on the evaluation of brain structure and function in health and disease.
e. I hold faculty appointments in the departments of Neurology and Psychology at the University of New Mexico. Activities include teaching and student and faculty mentoring.
Declaration of Dr. Jeffrey David Lewine, Ph.D. DEFENDANT'S 1 Page
EXHIBIT NO. D-1
IDENTIFICATION / EVIDENCE
CASE NO 3/17/25. CR01-24-31665
DATE:
f. I am the Director of Research for Beyond Barriers Therapeutics, a virtual pharmaceutical company developing novel treatments for TBI, alphavirus exposure, and organophosphate poisoning.
g. I am the Chief Scientific and Research Officer for the Research and Recognition Project, which has developed a new thera