Court Filing
Filed: 05/07/2025 08:23:04 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 ON STATE'S MOTION FOR
BRYAN C. KOHBERGER, §18-207 EXAMINATION AND
EXTENSION OF DEADLINE
Defendant.
I. INTRODUCTION
Before the Court is the State's motion to conduct an examination of Defendant pursuant to I.C. § 18-207 (4) (c) and to extend the penalty-phase rebuttal disclosure deadline to accommodate opinions arising from that examination. Defendant does not dispute that his penalty-phase expert disclosures opining to his mental conditions trigger the State's right under the statute to conduct its own mental health examination. What is in dispute, however, is the scope of the examination, whether defense counsel may be present and whether the State has shown good cause to extend the rebuttal disclosure deadline.
Oral argument¹ on the motion was held by video conference on May 5, 2025, after which the Court ruled from the bench. This Order memorializes that ruling.
II. STANDARDS
Constitutional questions are questions of law. State v. Sanchez, 165 Idaho 563, 567, 448 P.3d 991, 995 (2019). Whether good cause has been shown for an extension of time is a discretionary decision. I.C.R. 45. On discretionary matters, the trial court must: 1) correctly perceive the issue as one of discretion; 2) act within the boundaries of such discretion; 3) act consistently with any legal standards applicable to the specific choices before it, and; 4) reach its Because the motion was likely to and did-generate discussion about issues concerning Defendant's mental health, including matters not admissible at trial, the Court sealed the hearing pursuant to I.C.A.R. 32 (c) (3) (A) to both protect against the disclosure highly intimate facts which would be highly objectionable to a reasonable person if disseminated and to preserve Defendant's right to a fair trial. Sealing the hearing was the least restrictive way to protect the privacy interests at issue. Neither party objected to sealing the hearing.
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decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
III. PROCEDURAL BACKGROUND
On January 23, 2025, Defendant timely disclosed guilt-phase expert opinions by two mental health professionals who examined Defendant and subsequently diagnosed him with various mental and behavioral conditions, including Autism Spectrum Disorder (" ASD "), Obsessive-Compulsive Disorder (" OCD ") and Attention Deficit Hyperactivity Disorder (" ADHD "). Following those disclosures, the State provisionally retained a psychologist to conduct an examination of Defendant pursuant to I.C. § 18-207 (4) (c) and provide a report for rebuttal purposes.2 On March 31, 2025, Defendant timely disclosed penalty-phase expert opinions by five mental health professionals including the two previously disclosed-regarding his various mental / behavioral health conditions. The deadline for the State's penalty-phase expert disclosures was set for April 28, 2025.
On April 2, 2025, the State initiated communications with defense counsel about conducting an examination of Defendant pursuant to I.C. § 18-207 (4) (c). Decl. Hurwit, Exh. S-1, p. 4. Defense counsel responded that same day requesting the name of the experts, the nature of the testing and whether there was any objection to defense counsel being present for the exam.
Id. The following day, the State provided the information requested, including the proposed testing. Id. at pp. 3-4. Among the tests listed was an assessment of " personality structure. " The State also objected to defense counsel being present. Id. In response, defense counsel did not object to the evaluation, but did object to any testing outside the scope of what Defendant's experts had conducted, specifically personality testing. She also asked the State to reconsider its position as to having counsel present during the examination. Id. at pp. 2-3.3 On April 7, 2025, the State responded, indicating it would not remove personality testing from the proposed 2The State also moved in limine to exclude the proposed penalty-phase testimony by these two experts on grounds that their opinions did constitute a mental element defense and, therefore, did not fall within the scope of I.C. § 18- 207 (3). The Court ultimately held that testimony by the two experts during the penalty phase would not be permitted, with limited exception, unless Defendant testifies at trial. See, Order on State's Motion in Limine re:
Neuropsychological and Psychiatric Evidence (Apr. 18, 2025) 3 Both parties agree that the Defendant's disclosure of his psychological experts to testify in mitigation triggered a waiver of any privilege by the defendant and a mandatory right of the state to have its expert (s) conduct an examination of the defendant. See I.C. § 18-207 (4) (c).
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examination and would not agree to counsel being present during the examination except through a video feed or otherwise by having counsel shielded from Defendant's view.
On April 11, 2025, the State's mental health expert informed counsel he was not able to continue on the case. Approximately one week later, the State retained a replacement, Dr.
[Redacted until the state formally discloses the expert], and informed Defendant of such. Decl.
Hurwit, Exh. S-2. The State indicated it still needed to discuss with specifics of the examination with their new doctor, including his position on having counsel present. Id. On April 22, 2025, the State alerted defense counsel via email that their new doctor believed personality testing was warranted and objected to counsel's presence. The State also sought a stipulation to extend the rebuttal disclosure deadline for purposes of disclosing the doctor's opinion. Defense counsel responded that same day objecting to the deadline extension, to personality testing and to her exclusion from the room. On March 25, 2025, the State filed the current motion.
IV. ANALYSIS
In its motion, the State seeks an order from the Court: 1) extending the deadline for its penalty-phase rebuttal disclosures for 21 days following the completion of the State's expert examination; 2) allowing the State's expert to administer standardized personality testing on Defendant, and; 3) excluding defense counsel's presence at the examination. Defendant responds that: 1) there is no good cause for the extension, and it would be highly prejudicial given the posture of the case; 2) personality testing is beyond the scope of rebuttal and would violate his Fifth Amendment rights against self-incrimination, and; 3) counsel's presence during the examination is required by the Sixth Amendment.
As indicated at the hearing on the motion, the Court finds good cause for a short extension to the deadline. As for the examination, personality testing will not be allowed nor will counsel's presence in the examination room be allowed.
A. A Limited Extension of the Rebuttal Disclosure Deadline is Warranted.
Because the State filed the current motion prior to the expiration of the rebuttal disclosure deadline, the question of whether to extend the deadline is guided by the good cause standard.
I.C.R. 45 (b) (1) (A). In the civil context, " [g] ood cause implies the existence of factors outside a [party's] control, as opposed to the [party's] lack of diligence. " Grazer v. Jones, 154 Idaho 58, 70, 294 P.3d 184, 196 (2013). The reason for the delay must be " truly unforeseen and excusable " as opposed to counsel's " failure to diligently prosecute this issue before the crisis was upon 3
him. " Dodd v. Jones, 2025 WL 665547, at * 20 (Idaho Mar. 3, 2025), reh'g denied (Apr. 15, 2025). The Court may also consider whether Defendant will be prejudiced by the delay. Cannon v. Teel, 173 Idaho 755, 759, 548 P.3d 380, 384 (Ct. App. 2023), review denied (Jan. 24, 2024).
These considerations apply equally in the criminal context.
Evaluating these factors, the Court finds good cause has been shown for a limited extension to the deadline. While the State should have filed its motion to extend the deadline weeks sooner, the Court is sympathetic to the fact that the State's mental health expert-who had been provisionally retained shortly after Defendant's guilt-phase expert disclosuresdecided to withdraw from the case just two weeks prior to the rebuttal disclosure deadline, leaving the State to scramble to retain another expert. Based on the State's representations during the hearing, the expert's withdrawal was unforeseen by, and beyond the control of, the prosecution. Until [Redacted] was retained, the State did not know his position on the two issues holding up the examination, i.e., personality testing and presence of counsel. Once the State learned of his position and confirmed Defendant's objections, it moved accordingly. Considering these circumstances, the Court finds the delay to be more attributable to the prior expert's unexpected withdrawal than lack of diligence by the State.
However, the State's request to extend the rebuttal disclosure deadline to 21 days after the examination runs the risk of prejudicing Defendant. Given the posture of this case, the volume of discovery and the upcoming trial date, the Court will only allow an extension to May 27, 20256 so that Defendant has ample time to consider and potentially respond to the State's disclosure. Defendant shall be made available to the State's expert for examination within the next seven to ten days, thus leaving the doctor approximately two weeks to complete his report.
4 Granting this extension, though limited by the Court in both scope and time, is consistent the substantive, and mandatory, i.e. non-discretionary, right of the state to conduct such an examination pursuant to I.C. § 18-207 (4) (c).
5 Given that time was of the essence, the State should have considered filed a motion to extend the deadline, at the latest, by April 3, 2025, after it learned Defendant would be objecting to personality testing and exclusion of counsel from the examination. While the Court appreciates that counsel attempted to reach resolution without the Court's involvement, this is a significant matter that called for prompt resolution once it appeared the parties were at odds.
6 In its oral ruling, the Court indicated the extension would be 21 days from the date of the hearing, which falls on Memorial Day. Due the holiday, the Court will allow the State an extra day. Further, given that the deadline follows a holiday weekend, the Court expects Defendant will be flexible if a day or two extra is needed.
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B. Personality Testing Will Not Be Allowed.
The State seeks leave to allow its expert to conduct personality tests on Defendant during the examination to confirm, rebut or otherwise contextualize the neuropsychological conditions diagnosed by Defendant's experts, particularly ASD. The State argues there is no basis to limit its doctor's professional judgment as to the appropriate areas of examination and, further, Defendant has opened the door by offering testimony about his lack of personality disorder. " The State contends it will only seek to utilize the results of the examination as rebuttal evidence in the penalty phase and will disclose all of the results of the examination to Defendant.
Defendant objects, arguing personality tests exceeds the scope of proper rebuttal. He points out his own experts did not perform personality testing or diagnose him with a personality disorder; rather, his proffered evidence concerns his diagnoses of ASD, OCD, ADHD and his history of eating disorders and substance abuse. He also argues nature of personality testing violates his Fifth Amendment right against self-incrimination.
As both parties appear to agree, the scope of the State's examination of Defendant is confined to purposes of rebuttal. This is borne out by the language of I.C. § 18-207 (4) (c), which provides for a limited Fifth Amendment waiver for the mental condition placed at issue, stating:
(4) No court shall, over the objection of any party, receive the evidence of any expert witness on any issue of mental condition, or permit such evidence to be placed before a jury, unless such evidence is fully subject to the adversarial process in at least the following particulars:
(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 and, upon request, the court shall order that the state's experts shall have access to the defendant in such cases for the purpose of having its own experts conduct an examination in preparation for any legal proceeding at which the defendant's mental condition may be in issue.
I.C. 18-207 (4) (c) (emphasis added).
The " subject " to which waiver applies is " an issue of mental condition. " In other words, the statute does not provide for waiver of a defendant's entire mental condition; it only waives 7 One of defendant's forensic psychiatrists, Dr. Eileen Ryan, concluded in her expert report that Defendant " does not have a childhood history of behavior that is consistent with conduct disorder or antisocial personality disorder in adulthood, nor does he meet criteria for antisocial personality disorder. " Ryan Report, p. 49, attached as Exh. S-3 to Hurwit Declaration.
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privilege attaching to the mental condition he chooses to place before the jury so as to allow the State to " controvert [] his proof on an issue that he interjected into the case. " State v. Payne, 146 Idaho 548, 577, 199 P.3d 123, 152 (2008) (Estelle v. Smith, 451 U.S. 454, 470 (1981)). This is consistent with well-settled waiver principles under the Fifth Amendment. When a defendant waives his Fifth Amendment right against self-incrimination by voluntarily providing testimony in his own defense, he does so only on the matters raised by his own testimony on direct examination. Brown v. United States, 356 U.S. 148, 155 (1958).
Indeed, it is recognized among courts that waiver under provisions similar to I.C. § 18- 207 is limited to the issue raised by the defense. As noted by the Fifth Circuit in Hernandez v.
Davis, [B] y relying on the testimony of a mental-health expert who has examined him, the defendant waives his Fifth Amendment privilege. Nonetheless, the scope of that waiver is ' limited to the issue raised by the defense, ' and any testimony about the court-ordered psychiatric evaluation cannot go beyond this limited rebuttal purpose. Saldano v. Davis, 701 F. App'x 302, 309–10 (5th Cir. 2017) (per curiam); see also Cheever, 571 U.S. at 97 [] (noting that ' [n] othing ' in our precedents ' suggests that a defendant opens the door to the admission of psychiatric evidence on future dangerousness by raising an insanity defense at the guilt stage of the trial ' (alteration in original) (quoting Powell v. Texas, 492 U.S.
680, 685-86 n.3 [] (1989) (per curiam)).
750 F. App'x 378, 383 (5th Cir. 2018).8 $ See also, Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir. 2004) (when a defendant initiates a trial defense of mental incapacity or disturbance, his or her limited Fifth Amendment waiver " only allows the prosecution to use [a compelled psychiatric interview] to provide rebuttal to the psychiatric defense "); Savino v. Murray, 82 F.3d 593, 604 (4th Cir. 1996) (" [A] defendant has no Fifth Amendment protection against the introduction of mental health evidence in rebuttal to the defense's psychiatric evidence. "); Bilal v. United States, 240 A.3d 20, 29 (D.C. 2020) (" [F] rom Cheever, there is no Fifth Amendment bar against a compelled mental examination of the defendant if the defendant will rely on testimony of a mental health expert who has examined him, and the compelled examination will be limited to the issue (s) raised by the defense. "); United States v. Johnson, 383 F. Supp. 2d 1145, 1167 (N.D.
Iowa 2005) (notice of a defendant's intent to rely on a mental condition mitigating factor does not effect a comprehensive waiver of the defendant's right against self-incrimination such that the government's experts are entitled to ask about his thinking or conduct at the time of the charged offenses); Polvon v. State, 682 S.W.3d 651, 660 (Tex. App. 2024) (" [A] trial court should limit a compelled psychiatric examination to rebuttal issues. ").
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Here, the parties do not dispute that the scope of the State's examination is limited to rebut the mental conditions Defendant has placed at issue. They agree that the State cannot explore new diagnoses or mental health conditions other than those placed at issue. What they do dispute is the manner in which the examination may proceed; specifically, whether personality testing should be allowed.
According to Defendant, the personality testing proposed should not be allowed because it is not aimed at revealing proper rebuttal evidence. He points out that rebuttal evidence " explains, repels, counteracts, or disproves evidence with has been introduced by or on behalf of the adverse party. " State v. Moses, 156 Idaho 855, 332 P.3d 767 (2014). There 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). Defendant notes that his proffered evidence is limited to his diagnoses of ASD, OCD, ADHD and history of eating disorders and substance abuse. Because he has not been diagnosed or even tested for a personality disorder, he argues testing for such is beyond the scope of rebuttal.
In support, Defendant cites to several cases where courts have limited the types of testing conducted in rebuttal examinations based on the scope of the mental health evidence proffered by the defendant. For example, in United States v. Taylor, 320 F. Supp. 2d 790 (N.D. Ind. 2004), the defendant sought to introduce " expert evidence regarding [his] developmental history and mental condition relating to substance abuse during the sentencing phase, " and was ordered to submit to a rebuttal examination. Id. at 791. The defendant subsequently objected to four tests the government intended to use including a personality test-on the ground that those tests were " designed to indicate personality disorders and mental conditions... not mental condition [s] related to substance abuse, " and therefore exceeded the scope of any Fifth Amendment waiver.
Id. at 794. The court agreed, concluding that the government could use such tests " only to the extent that the tests contain testing scales for substance abuse, " and that the prosecution should be " barred from introducing any materials that are outside the scope of mental health testing as it relates to substance abuse. " Id.9 9 See also, U.S.A. v. Jackson, 2015 WL 4885997, at * 5 (C.D. Cal. Aug. 13, 2015) (where defendant placed his mental condition at issue by presenting expert opinion that he experienced combat-related traumatic brain injury and PTSD, the court found the government expert's proposed personality test exceeded the scope, noting it " does not test for cognitive functioning or impairment, " and is instead " used to assess an individual's personality traits " which the defendant had not placed at issue); Centeno v. Superior Court, 117 Cal. App. 4th 30, 45 (2004) (holding that compelled mental examinations are " permissible only to the extent they are reasonably related to the determination 7
The State responds that it is not proposing the personality tests simply as a fishing expedition; rather, he believes the tests will aid in rebuttal for several reasons. As he explains:
In my professional opinion, including broader testing of personality and psychopathology is important for sev