Court Filing
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 CR01-24-31665 Plaintiff, FILED UNDER SEAL V. EXHIBIT 1 IN SUPPORT OF MOTION IN LIMINE BRYAN C. KOHBERGER, RE: USING THE TERMS PSYCHOPATH OR SOCIΟΡΑΤΗ Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby files under seal Exhibit 1 in Support of Motion in Limine RE: Using the Terms Psychopath or Sociopath: FILED UNDER SEAL – EXHIBIT 1 IN SUPPORT OF MOTION IN LIMINE RE: USING THE TERMS PSYCHOPATH OR SOCIOPΑΤΗ Page 1 • Exhibit 1 – Affidavit of Dr. John Edens DATED this 24 day of February, 2025. an ANNE C. TAYLOR ANNE TAYLOR LAW, PLLC 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 February, 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 FILED UNDER SEAL – EXHIBIT 1 IN SUPPORT OF MOTION IN LIMINE RE: USING THE TERMS PSYCHOPATH OR SOCIOPΑΤΗ Page 2 DECLARATION OF JOHN F. EDENS, PH.D. I, John F. Edens, swear under penalties of perjury that the information in this declaration is true and correct to the best of my knowledge: I. Background and Qualifications 1. I am a Professor in the Department of Psychological and Brain Sciences at Texas A & M University (TAMU). I am also formerly the Director of Clinical Training (2012-2016) of the doctoral training program in Clinical Psychology at TAMU. Additionally, I was a licensed psychologist in the state of Texas for 20 years until I retired my license (in good standing) in 2019. Since 1998, I have been actively involved in education and training in the areas of psychological and personality assessment, forensic psychology, violence risk assessment, abnormal psychology, research methodology, and professional ethics. In addition to classroom teaching, I have been invited to conduct advanced training workshops for mental health, legal, and criminal justice professionals throughout North America, Europe, Asia, and Australia. 2. I have conducted research on psychological assessment and diagnosis and the prediction of human behavior since the 1990s and have published approximately 200 peer-reviewed scientific journal articles, book chapters, and professional manuals related to these topics. Most of my research has focused on forensic and correctional mental health assessment issues, such as (a) the scientific reliability and validity of psychological testing and diagnosis among criminal offender populations and (b) the potential for criminal offenders to engage in future violence and other forms of socially deviant behavior inside and outside institutional settings.¹ 3. In addition to conducting basic research on psychological assessment, I have published extensively on controversies concerning the use of various psychiatric diagnoses, psychological tests, and assessment instruments and procedures in forensic and correctional settings, DEFENDANT'S MOTION IN LIMINE # 4 EXHIBIT NO. 1 1 IDENTIFICATION / EVIDENCE CASE NO. CR01-24-31665 DATE: 2/24/25 particularly those intended to assess psychopathic and antisocial personality traits such as the Hare Psychopathy Checklist-Revised (PCL-R) and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnosis of antisocial personality disorder (ASPD).2 I have also consulted on these and related mental health issues in approximately 50 capital murder trials over the course of my career. II. Referral Question & Background 4. I have been asked by defense counsel for Brian Kohberger to briefly summarize the relevant literature concerning the scientific status of potential expert testimony that a criminal defendant involved in capital murder litigation is a " psychopath, ” “ sociopath, ” or has ASPD. This declaration was prepared in anticipation that the prosecution in this case may attempt to administer the Hare PCL-R (or other similar diagnostic interviews) in their pre-trial mental health evaluations of Mr. Kohberger and / or attempt to introduce evidence from mental health expert witnesses at trial to label him with these pejorative terms. 5. I note at the outset that I have not conducted an independent psychological evaluation of Mr. Kohberger. Nor would I ever provide a rating for him on an instrument such as the PCL-R as part of legal proceedings, based on the problems with this rating scale that I detail below (see “ Relevant Scientific and Professional Literature ” section concerning the poor reliability and predictive validity of the PCL-R). I have no opinion as to what if any psychiatric diagnoses Mr. Kohberger may (or may not) experience currently or at earlier points in his life, as well as no opinion as to their potential relevance in regard to explaining his alleged criminal conduct. The fact that I have not evaluated Mr. Kohberger has no bearing on the opinions that I provide in relation to this case, as these opinions are specific to the scientific validity of psychopathy and ASPD evidence in capital murder trials. 2 III. Relevant Scientific and Professional Literature 6. It is unfortunately quite common for forensic mental health expert opinions in capital murder cases to be based on methods and instruments that are poorly suited to reliably and validly answer the various referral questions (e.g., mental state, future dangerousness, intellectual disability) that examiners may be asked to address. In the context of potential psychopathy evidence being presented in relation to Mr. Kohberger, there are significant problems with the opinions that might be offered regarding the relevance, as well as probative and prejudicial value, of psychopathy and ASPD. These problems are described in detail in subsequent paragraphs. 7. One of the most direct examples of scientific inadequacy in psychiatric and psychological evaluations is the fact that practicing mental health professionals evaluating the same individual frequently fail to agree with each other as to whether that individual is in fact diagnosable as having any particular disorder, especially personality disorders. For example, the field trials examining inter-rater reliability for the diagnostic criteria in the fifth edition of the DSM (inclusive of the diagnoses in DSM-5 and its more recent text revision, DSM-5 - TR) indicated that ASPD diagnoses had poor rates of agreement across diagnosticians. Given the historically poor inter-rater reliability of personality disorders such as ASPD noted earlier, numerous attempts have been made over the years to improve the accuracy of this category of diagnoses. One method for assessing antisocial and psychopathic traits that initially demonstrated some greater degree of inter-rater reliability across trained raters in early research publications is the aforementioned PCL-R, which was described, prematurely, as “ reliable and valid ” in various scientific journal articles during the 1990s and early 2000s. 3 8. The PCL-R is a 20-item rating scale that is intended to be used by trained mental health professionals to assess for the presence of the personality disorder of psychopathy. The 20 items consist of prototypically psychopathic traits (e.g., remorselessness, grandiosity, superficial charm) but also include items that focus on a history of antisocial and criminal acts (e.g., juvenile delinquency, past revocation of conditional release). The PCL-R typically is scored based on a semi-structured interview and review of available collateral information (e.g., institutional files, past mental health evaluations). Examinees can be given a PCL-R score ranging from 0 (zero) to 40, with higher scores indicating that they are being rated by an examiner as more psychopathic. Historically, a score of 30 and above has been used as a quasi-diagnostic cut-off for identifying examinees as being “ psychopathic ” in North American settings. The PCL-R is not part of or included in any formalized psychiatric diagnostic system, such as the American Psychiatric Association's aforementioned Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Instead, it is a freestanding rating scale commercially marketed by a psychological testing company, Multi-Health Systems, Inc. Research indicates that scores from this rating scale do, however, correlate relatively highly with DSM diagnoses of ASPD, which is to be expected given that the diagnostic criteria for ASPD overlap with several of the items included within the PCL-R. Compared to the criteria for an ASPD diagnosis, however, the PCL- R includes several more items on which examiners attempt to rate an examinee's ostensible personality characteristics, such as superficial charm, grandiosity, and shallow affect (emotions) - which are not included in the seven criteria for ASPD. 9. Noted in the preceding paragraphs, the PCL-R was described as reliable and valid in numerous early publications. However, since the late 2000s, it is important to point out that numerous studies have investigated the reliability of PCL-R scores in contested legal 4 proceedings and have found it to be highly unreliable in this context. " Levels of agreement in these more recent “ field studies " (i.e., studies investigating reliability in real-world psychological evaluations rather than in controlled scientific research) have been well below accepted standards of what would constitute minimal reliability for forensic mental health practice. 8 10. There is recent evidence that even those trained by the PCL-R instrument's developer, Robert Hare, through his Darkstone Research Group workshops, struggle to reliably assess the personality traits included in the PCL-R. Blais, Forth, and Hare (2017) º summarized reliability statistics for 280 participants in this training program who went on to score a series of practice cases that were then evaluated for diagnostic accuracy. The effects of this formalized training program on inter-rater reliability were disappointing. In particular, the reliability of the ' personality ' items on the PCL-R was quite poor, indicating a large degree of variability in rating subjective traits such as remorselessness, superficial charm, and lack of empathy. Notably, these poor results led the study authors to conclude that those raters ' PCL-R scores “ did not meet the standard recommended for criminal cases ” (see " Public Significance Statement, ” p. 762). That is, the evaluation results these individuals produced following this training were so inconsistent across examiners that they fell below standards for acceptable professional practice in the criminal justice system. 11. Even if PCL-R scores could be reliably produced in adversarial legal cases, there are additional reasons to question their relevance and probative value in capital murder trials. For example, mock jury research has shown that individuals who believe a defendant is highly psychopathic also believe that such a defendant will be highly dangerous in the future.10 Despite this intuitive association between psychopathy and violence, at present there is little evidence to support the assertion that psychopathy diagnoses have any bearing on a convicted capital 5 defendant's potential for future violent acts. That is, the available scientific studies suggest that psychopathy diagnoses are at best very weakly related to violent behavior in U.S. prisons. 11 Therefore, claims that an inmate is more likely to be violent in the future if serving out a life sentence because that inmate has been judged by a mental health professional to be " psychopathic " are based on almost no scientific support, and, actually ignore what are known to be legitimate correlates of future violence in prison settings (e.g., limited education, prison gang membership). 12 12. In addition to being scientifically unreliable in the context of capital murder evaluations, the introduction of evidence concerning the PCL-R raises other problems and ethical questions. Foremost, the term " psychopath " and the traits typically associated with the PCL-R (e.g., callousness, grandiosity, superficial charm) have a strong likelihood of unduly prejudicing jurors against a defendant. Among venirepersons, the psychopath label evokes images of real-world serial killers such as Ted Bundy, as well as fictional villains such as Hannibal Lecter.13 In fact, among a sample of over 400 venirepersons participating in a 2013 survey in Dallas County, Texas, Charles Manson was the most common response (20%) when participants were asked to spontaneously identify the person they first thought of when hearing the term " psychopath " (followed by Jeffrey Dahmer [14%], Adolf Hitler [12%], and Ted Bundy [11%]). 14 13. Numerous other published research findings confirm the pejorative effect of believing a criminal defendant as a psychopath. 15 For example, mock jurors in trial simulations who believe a defendant to be highly psychopathic are more likely to support death verdicts (in capital murder trials) and more likely to recommend longer criminal sentences (in non-capital trials) than are participants who believe a defendant to be less psychopathic. Additionally, they are more likely to rate a defendant as more dangerous and more " evil " than are participants who 6 believe a defendant to be less psychopathic. Similarly, a recent meta-analysis16 was published that accumulated all of the scientific literature examining the effects of psychopathy evidence in jury simulations, with the results indicating that the presentation of such information to mock jurors resulted in much more punitive outcomes for the defendant when compared to cases in which psychopathy evidence was not presented. IV. Opinion 14. To the extent that the admissibility of expert mental health evidence is to be informed by scientific data, the above-noted findings strongly argue against the introduction of ASPD and the PCL-R in cases such as that of Mr. Kohberger. ASPD and PCL-R psychopathy evidence provided by examiners in adversarial legal settings is highly unreliable, largely irrelevant to the likelihood of future violent acts in capital cases, and has the strong potential to stigmatize defendants with an immaterial and pejorative label and associated set of personality traits (e.g., grandiose, conning / manipulative). 15. Please feel free to contact me if you require any further information regarding the issues raised in this declaration. If needed, I would be happy to describe in greater detail my reservations about the scientific adequacy of testimony concerning ASPD and the PCL-R in capital cases. February 21, 2025 John F. Edens, Ph.D. Date Professor Department of Psychological and Brain Sciences Texas A & M University 7 End Notes 1 See, e.g: Buffington-Vollum, J. K., Edens, J. F., Johnson, D. W., & Johnson, J. (2002). Psychopathy as a predictor of institutional misbehavior among sex offenders: A prospective replication. Criminal Justice and Behavior, 29, 497-511. Douglas, K. S., Vincent, G., & Edens, J. F. (2006). Risk for criminal recidivism: The role of psychopathy. In C. Patrick (Ed.), Handbook of psychopathy (pp. 533-554). New York: Guilford. Edens, J. F., Buffington-Vollum, J. K., Colwell, K. W., Johnson, D. W., & Johnson, J. (2002). Psychopathy and institutional misbehavior among incarcerated sex offenders: A comparison of the Psychopathy Checklist-Revised and the Personality Assessment Inventory. International Journal of Forensic Mental Health, 1, 49-58. Edens, J. F., & Campbell, J. S. (2007). Identifying youths at risk for institutional misconduct: A metaanalytic investigation of the Psychopathy Checklist measures. Psychological Services, 4, 13-27. Edens, J. F., Campbell, J. S., & Weir, J. M. (2007). Youth psychopathy and criminal recidivism: A metaanalysis of the Psychopathy Checklist measures. Law and Human Behavior, 31, 53-75. Edens, J. F., & Cahill, M. A. (2007). Psychopathy in adolescence and criminal recidivism in young adulthood: Longitudinal results from a multi-ethnic sample of youthful offenders. Assessment, 14, 57-64. Edens, J. F., Poythress, N. G., & Lilienfeld, S. O. (1999). Identifying inmates at risk for disciplinary infractions: A comparison of two measures of psychopathy. Behavioral Sciences and the Law, 17, 435-443. Edens, J. F., & Ruiz, M. A. (2006). On the validity of validity scales: The importance of defensive responding in the prediction of institutional misconduct. Psychological Assessment, 18, 220-224. Edens, J. F., Skeem, J. L., & Douglas, K. S. (2006). Incremental validity analyses of the Violence Risk Appraisal Guide and the Psychopathy Checklist: Screening Version in a civil psychiatric sample. Assessment, 13, 368-374. 2 See, e.g: Amenta, A. E., Guy, L. S., & Edens, J. F. (2003). Sex offender risk assessment: A cautionary note regarding measures attempting to quantify violence risk. Journal of Forensic Psychology Practice, 3, 39-50. DeMatteo, D., Hart, S. D., Heilbrun, K., Boccaccini, M. T., Cunningham, M. D., Douglas, K. S... Reidy, T. J. (2020). Statement of concerned experts on the use of the Hare Psychopathy Checklist- Revised in capital sentencing to assess risk for institutional violence. Psychology, Public Policy, and Law, 26, 133-144. DeMatteo, D., Hart, S. D., Heilbrun, K., Boccaccini, M. T., Cunningham, M. D., Douglas, K. S... Reidy, T. J. (2020). Death is different: Reply to Olver et al. (2020). Psychology, Public Policy, and Law, 26, 511-518. 8 Edens, J. F. (2006). Unresolved controversies concerning psychopathy: Implications for clinical and forensic decision-making. Professional Psychology: Research and Practice, 37, 59-65. Edens, J. F., & Boccaccini, M. T. (2017). Taking forensic mental health assessment ‘ out of the lab ' and into ' the real world ': Introduction to the special issue on the field utility of forensic assessment instruments and procedures. Psychological Assessment, 29, 710-719. Edens, J. F., Buffington-Vollum, J. K., Keilen, A., Roskamp, P., & Anthony, C. (2005). Predictions of future dangerousness in capital murder trials: Is it time to “ disinvent the wheel? ” Law and Human Behavior, 29, 55-86. Edens, J. F., & Douglas, K. S. (2006). Assessment of interpersonal aggression and violence: Introduction to the special issue. Assessment, 13, 1-6. Edens, J. F., Magyar, M. S., & Cox, J. (2013). Taking psychopathy measures " out of the lab " and into the legal system: Some practical concerns. In K. Kiehl & W. Sinnott-Armstrong (Eds.), Handbook on psychopathy and law (pp. 250-272). New York: Oxford University Press. Edens, J. F., & Otto, R. K. (2001). Release decision making and planning. In J. B. Ashford, B. D. Sales, & W. H. Reid (Eds.), Treating adult and juvenile offenders with special needs (pp. 335-371). Washington, DC: American Psychological Association. Edens, J. F., Petrila, J., & Kelley, S.E. (2018). Legal and ethical issues in the assessment and treatment of psychopathy. In C. Patrick (Ed.), Handbook of psychopathy (2nd ed.)