Order Memorializing Oral Rulings on Motions in Limine

Filed: 04/18/2025 09:34:53 Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Deputy Clerk-Waters, Renee
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, Ada County Case No. CR01-24-31665
V.

ORDER MEMORIALIZING ORAL

BRYAN C. KOHBERGER, RULINGS ON MOTIONS IN LIMINE

Defendant.

I. INTRODUCTION

Before the Court are several motions in limine filed by both Defendant and the State. Oral argument on motions was held on April 9, 2025. On several motions, the Court rendered oral rulings from the bench. This Order serves to memorialize those oral rulings, together with the findings the Court made during the hearing.

II. STANDARDS

Evidence is relevant if it has " any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. " I.R.E. 401. " All relevant evidence is admissible except as otherwise provided by these rules or by other rules applicable in the court of this state. " I.R.E. 402.

" Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. " I.R.E. 403. " The question of whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion. " State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006).

On discretionary matters, the trial court must: 1) correctly perceive the issue as one of discretion; 2) act within the outer boundaries of its discretion; 3) act consistently with the legal standards applicable to the specific choices available to it, and; 4) reach its decision by the exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

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III. ANALYSIS

A. Defendant's MIL # 1 re: Inflammatory Evidence Defendant moves under IRE 403 to prevent the State from introducing testimony and evidence that is " exceptionally inflammatory, " arguing it is irrelevant and / or unfairly prejudicial.

The Court finds this motion is premature. As with any potentially prejudicial evidence, the Court must first consider whether it is relevant and material as to an issue of fact under IRE 401 before assessing whether its probative value is substantially outweighed by the danger of unfair prejudice. State v. Winn, 121 Idaho 850, 853, 828 P.2d 879, 882 (1992). At this point, Defendant has not identified what specific evidence he wants kept out or otherwise defined " exceptionally inflammatory. " Issuing an order as requested by Defendant would lack any substance; it would simply require the State to abide by evidentiary rules and prosecutorial responsibilities when presenting its case. The Court finds this unnecessary and, therefore, DENIES the motion.

However, this was a particularly horrific murder and there will be exceptionally graphic depictions of the victims and crime scene. Prior to seeking the admission of this evidence, the State is required to provide copies to Defendant. If Defendant believes the evidence is cumulative, unnecessary or otherwise prejudicial, he can seek to take the matter up outside the presence of the jury.

B. Defendant's MIL # 3 re: Use of the Term Murder Defendant seeks to prohibit the use of the words " murder, " " murderer, ” “ murdered, " " murder weapon, " and similar forms of the word " murder ” as applied to Defendant. Again, Defendant seeks an order requiring the State to abide by the evidentiary rules, particularly the prohibition against argument outside of closing. This is unnecessary. The State acknowledges it would be improper to refer to Defendant as the murderer other than stating what the allegations are and has no plans to do so or otherwise elicit similar testimony from its witnesses. Thus, the motion is DENIED as unnecessary.

C. Defendant's MIL # 4 re: Use of Terms Psychopath or Sociopath Defendant moves to exclude any reference to the terms " psychopath " or " sociopath " at trial, arguing it is unfairly prejudicial under IRE 403 and improper opinion testimony under IRE
702. The State does not intend to use these terms at trial. Indeed, the terms are irrelevant given the lack of evidence Defendant has been diagnosed with a personality disorder or similar mental 2

illness. Their use would also be highly prejudicial. Thus, the State is not to use these terms, or their equivalents, at the guilt phase of trial. If, however, the State believes the door has been opened to allow the use of such terms, it shall raise the matter in advance outside the presence of the jury. The motion is GRANTED.

D. State's MIL re: Improper Death Penalty Comments The State moves under IRE 401 and 403 to preclude defense counsel from making what it calls " improper " comments about the death penalty; specifically, that the State is " attempting to kill " Defendant, which defendant counsel has stated in past hearings. Defendant stipulates to using phrases that comport with " existing language in statute and jury instruction. " Again, the Court is unwilling to enter an order requiring defense counsel to act professionally and comply with existing rules. As defense counsel recognizes, any such statements would be argumentative and improper. The Court trusts defense counsel will comport themselves accordingly. The motion is DENIED as unnecessary.

Ε. Defendant's MIL # 8 re: Unnoticed 404 (b) Evidence Defendant moves in limine to exclude any IRE 404 (b) evidence that has not already been noticed by the State which, at this point, is only Defendant's pre-homicide traffic stop. By way of example of allegedly unnoticed 404 (b) evidence, Defendant notes that the State intends to present evidence of Defendant's graduate paper regarding how to conduct a crime scene investigation and his Amazon purchase records, both of which Defendant contends are subject to IRE 404 (b).

As an initial matter, Defendant appears to misapprehend the scope of IRE 404 (b). The rule provides that " [e] vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. " IRE 404 (b) (1). Defendant takes the position that " other acts " encompasses any other acts of any nature other than the crime at issue. The rule is not so broad. Its purpose is to govern the use of character evidence. It forbids the use of evidence " to show a defendant's criminal propensity. " State v. Johnson, 148 Idaho 664, 667, 227 P.3d 918, 921 (2010) (citing State v. Sheldon, 145 Idaho 225, 227, 178 P.3d 28, 30 (2008)). " [I] f the evidence does not bear upon the defendant's character, it is not subject to I.R.E. 404 (b). " State v. Whitaker, 152 Idaho 945, 949, 277 P.3d 392, 396 (Ct. App. 2012) (citing State v. Norton, 151 Idaho 176, 190, 254 3

P.3d 77, 91 (Ct.App.2011)). ¹ Defendant's Amazon purchases and his graduate paper discussing proper crime scene investigation techniques do not, standing alone, bear on his character or suggest he has a propensity to commit crimes, including those charged.2 Further, the Court is unwilling at this point to preclude the State from filing a 404 (b) notice in the future if it determines its evidence is encompassed by the rule. There are still four months until trial begins, well within the " reasonably in advance of trial " time frame required by the rule. The State acknowledges its notice obligations under the rule and intends to comply with the rule with regard to any proposed IRE 404 (b) evidence. The timeliness of such future notice will be analyzed if and when such notice is given and objections can be advanced at that time.

The motion is therefore DENIED.

F. Defendant's MIL # 10 re: Improper Expert Testimony – Mittelman Defendant's MIL # 11 re: Exclude IGG Evidence State's MIL re: Investigative Genetic Genealogy Both parties move to exclude evidence of law enforcement's Investigative Genetic Genealogy (IGG) testing in this case, but for entirely different reasons. Given the parties ' agreement to not present any IGG evidence, those reasons need not be discussed given the bottom-line agreement and the Court GRANTS the motions. The State has indicated it will present evidence through Detective Brent Payne that Defendant's name was revealed to law enforcement through a " tip. " To avoid issues at trial, the Court advises the parties to arrive at a mutually agreeable narrative about how the tip came about.3 The parties are also directed to jointly craft a jury instruction advising the jurors to not concern themselves with the source or nature of the tip.

¹ In essence, the rule's reach is prior crimes, wrongful conduct or other prior acts of a nature from which a jury could conclude the person has a bad character and is therefore predisposed to commit crimes that that charged. This conduct is commonly described by Idaho courts as " prior bad acts. " Whitaker, 152 Idaho at 949, 277 P.3d at 396.

While the rule is not limited to " bad " acts, it does not implicate acts that do not bear on a defendant's poor character, even if that act is also evidence of the defendant's motive, intent, identity, etc. Id.

2 Even if this evidence could qualify as character evidence-which it does not-Defendant has notice of the State's intent to rely on it.

3 If agreement cannot be reached, the parties are to submit to the Court their proposed narratives prior to trial and the Court will decide how it will be presented.

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G. Defendant's MIL # 13 re: Conditions as Aggravator Defendant moves to prevent the State from using Defendant's diagnosis of Autism Spectrum Disorder (" ASD ") and the characteristics of his ASD as an aggravating factor at the penalty phase of trial. The State responds that it has no plans to use such evidence as an aggravating factor in light of Zant v. Stephens, 462 U.S. 862 (1983), but it will argue against and rebut Defendant's diagnosis to the extent he relies upon it as a mitigating factor.4 Despite the State's concession, the Court is concerned with the breadth of Defendant's motion. He is not only seeking to preclude the State from referencing his ASD diagnosis as an aggravator, but any symptom of his ASD. Given the broad nature of ASD symptoms, the Court foresees an issue potentially arising at trial whereby the State makes reference to an action taken by Defendant that Defendant contends is a symptom of his ASD. That evidence is not currently before the Court. Thus, at this point, the Court will preclude the State from arguing or presenting evidence of Defendant's ASD diagnosis as an aggravator, but it is not in a position to rule on whether any particular evidence must be excluded on grounds that it evidences a symptom of Defendant's ASD. The motion is, therefore, GRANTED, in part only.

H. State's MIL re: Alternative Perpetrator Evidence The State seeks an order prohibiting Defendant from offering " alternate perpetrator " evidence without first making a showing that such evidence is relevant and admissible under IRE 401 and IRE 403. These rules govern the standard of admissibility for alternate perpetrator evidence. State v. Meister, 148 Idaho 236, 220 P.3d 1055 (2009) (" Mere inferences that another person could have committed the crime will most likely not be relevant, and if relevant will still be subject to the limitation provisions of I.R.E. 403. "). Defendant acknowledges his burden under Meister, but argues the State's motion is premature. According to Defendant, this case is " full of alternate perpetrators " and he intends to produce offers of proof as to alternate perpetrators.

While Defendant is correct that such offers of proof can be made at trial, this case is not well-suited to waiting until the time of trial to do so, particularly if Defendant intends to submit multiple offers of proof. Laying foundation for the admission of the evidence will likely take a 4To the extent Defendant introduces evidence of his ASD as a mitigating factor, the State is allowed to confront that evidence so that the jury can afford it appropriate weight. I.C. § 19-2515 (6). It cannot, however, attach an aggravator label to it.

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significant amount of time. After all, Defendant cannot merely show another person could have committed the crime; rather, there must be " evidence (direct or circumstantial) linking the third person to the actual perpetration of the crime. " 2 Clifford S. Fishman and Anne Toomey McKenna, Jones on Evidence § 13: 38.50 (7th ed.) (Dec. 2024 update). To avoid undue delay at trial, Defendant must present the offer (s) of proof no later than May 14, 2025 so the matter can be addressed at the pretrial conference. The Court will RESERVE ruling on the motion.

I. Defendant's MIL # 14 re: Statistical Analysis Defendant moves in limine to exclude any misleading comments about the meaning of a " likelihood ratio " for DNA purposes. Specifically, Defendant seeks to avoid attempts to define likelihood ratio through a comparison to the world population. The State agrees that this type of comparison is inappropriate. The Court GRANTS Defendant's motion insofar as it applies to the question asked by the prosecutor at the grand jury proceedings, which both sides agree was not proper. However, the Court will not dictate how the question is to be asked at trial. If Defendant believes there is a similar misrepresentation as to the likelihood ratio at trial, he can object at that time.

J. Defendant's MIL # 5 re: Inconclusive Data Defendant moves to limit expert testimony about the Idaho State Police Forensic Lab's statistical analysis of a swab taken from the fingernail clippings of Madison Mogen (" Item Q13.1 "). The testing revealed a likelihood ratio (" LR ") in the " inconclusive " range as to whether Defendant was a potential contributor to the DNA mixture. During her grand jury testimony, the lab analyst, Jade Miller, testified that " inconclusive " meant she was " unable to say one way or another whether or not [Defendant] is included in the mixture. " Defendant argues this is misleading language in that it allows for an inference that Defendant might be included, which he asserts is inaccurate. The State indicates it will not offer the results of Q13.1 as inculpatory evidence, which Defendant agrees renders his motion moot. However, if the State changes 5 The scope of the preclusive effect of this ruling includes suggesting that specific individuals looked at and cleared by law enforcement are alternate perpetrators without first complying with a showing required by this Order.

" Defendant's motion is directed toward the prosecutor's questioning of a lab analyst at the grand jury proceedings.

There, the analyst testified that her DNA testing showed the profile developed from the knife sheath was 5.37 octillion times more likely to be seen if Defendant was the source than if an unrelated individual randomly selected from the general population is the source. In an attempt to clarify this result, the prosecutor asked whether this meant that " if there were 1.37 octillion people that it would be that Bryan Kohberger is one out of that many octillion. " The lab analyst explained why this comparison is not a proper way to view a likelihood ratio.

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course with regard to the evidence, it must first raise the matter with the Court outside the presence of the jury so the anticipated testimony regarding the meaning of " inconclusive " can be discussed. At this time, however, the motion is DENIED as moot.

Κ. Defendant's MIL # 9 re: Excluding Amazon Click Activity Evidence at Trial Defendant moves to exclude any evidence of Defendant's Amazon purchase history or " click activity " on grounds that it is " out of context, incomplete and unfairly prejudicial. " This evidence will be presented by the State through Shane Cox and Michael Douglass, who will testify simply to what the documentary evidence state, all of which was provided to Defendant in discovery.7 The evidence is highly relevant. A Ka-Bar knife sheath was found lying next to the body of one of the deceased victims, all of whom were stabbed to death. Defendant's DNA was found on the knife sheath. Records from an Amazon account registered to Defendant's name and email show that a purchase of a Ka-Bar knife and sheath was made from the account approximately eight months prior to the homicides. Click activity on the same account shows the customer also viewed pages associated with Ka-Bar style knives at that time and, in the week following the purchase, viewed pages associated with the shipping progress of the knife and sheath. The product was shipped to " Bryan Kohberger ” at his family address in Pennsylvania. After the homicides, activity from the same account showed the user navigated pages related to the deletion of account activity and, a week later, viewed pages associated with a Ka-Bar knife and sheath. This evidence establishes a significant connection between Defendant and a Ka-bar knife and sheath.

In addition, there is no basis under IRE 403 to exclude the evidence, particularly given how probative it is. Defendant argues it is misleading and prejudicial because it paints and incomplete picture of the account activity. To this end, Defendant provides the declaration of his expert, David Howell, the founder of a firm specializing in, inter alia, digital forensics and digital marketplace analytics. According to Mr. Howell, far more information must be reviewed in order to attribute specific activity to a specific person or otherwise render an opinion about 7 Within this motion, Defendant also seeks to exclude testimony by Shane Cox and Michael Douglass on grounds that their expert disclosures were insufficient. That will be addressed in a separate order regarding Defendant's motion to exclude vague and undisclosed expert testimony.

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user behavior with forensic certainty, including Amazon advertising logs, recommended algorithms, cross-device history, retargeting behavior, account personalization and device IDs.

Defendant is free to challenge this evidence through cross-examination and establish through Mr. Howell why more information is needed to reach the conclusion that Defendant made the purchases or " clicks. " However, it is not a basis for exclusion. There is nothing inherently unfairly prejudicial or misleading about the evidence itself. It will be up to the jury to consider all the evidence and decide whether Defendant was the " clicker. " 8 Thus, the motion is
DENIED.

L. State's MIL re: AT & T Timing Advance Records The State moves in limine to prohibit the defense from making any reference to the absence of AT & T Timing Advance Records (" TA Records ") related to Defendant's cell phone.

The State contends it never received such records from AT & T in response to its subpoenas and, therefore, any statements by Defendant that the records could have or should have been provided to Defendant should not be allowed as it mischaracterizes the evidence, will mislead the jury, waste time and cause undue delay. In support, the State provides Certificates of Authenticity AT & T for each of the two warrants, stating that it " did not provide Timing Advance Records for phone number 509-592-8458 " because such records were, at that time, " only available if requested within seven (7) days of the specified time frame. " Defendant, relying largely on the affidavit of its expert, Sy Ray, is adamant that the State did receive the documents — which he argues are exculpatory and is hiding them. Defendant points out he has a constitutional right to challenge evidence against him and, therefore, must be allowed to explore the State's misrepresentation as to the availability of the re