Latest / Beyond The Horizon / Mega Edition: Kohberger And The State Trade Motions Over Alleged Grand Jury Misconduct (9/23/26)

Transcript

Mega Edition: Kohberger And The State Trade Motions Over Alleged Grand Jury Misconduct (9/23/26) · Beyond The Horizon

• 0:00
  Speaker 1: And welcome back to the program. In this episode, we're
• 0:04
  Speaker 1: going to pick right back up where we left off
• 0:06
  Speaker 1: with Brian Kohlberger's motion to dismiss. Barbara J. Shapiro, Beyond
• 0:13
  Speaker 1: Reasonable Doubt and Probable Cause, 1991. Citing Joseph H. Smith,
• 0:19
  Speaker 1: Colonial Justice in Western Massachusetts, 1639-1672, 145-1961. William Nelson, Americanization
• 0:30
  Speaker 1: of the Common Law, 106 and 107, 1975. Gail Marcus,
• 0:36
  Speaker 1: Due Execution of the General Rules of Righteousness, Criminal Proceedings,
• 0:41
  Speaker 1: and New Haven, Town and Colony, 1638 through 1658. In
• 0:47
  Speaker 1: Saints and Revolutionaries, Essays in American History, 103, 108, David Hall, 1984.
• 0:51
  Speaker 1: Catherine Pryor, Penal Measures in the American Colonies, an Overview,
• 1:00
  Speaker 1: American Journal of Legal History, 28, 330, 1982, Hugh F. Rankin,
• 1:06
  Speaker 1: Criminal Trial Proceedings, 78, 79, 1965, Richard Stark, Office and
• 1:13
  Speaker 1: Authority of the Justice of the Peace, 114, 115, 1774.
• 1:20
  Speaker 1: In spite of their experience with the discretion of the
• 1:23
  Speaker 1: public prosecutor and the protections afforded By preliminary hearings, it
• 1:28
  Speaker 1: was the grand jury that the colonists looked to for
• 1:31
  Speaker 1: protection from government abuse. For example, a grand jury refused
• 1:36
  Speaker 1: to indict Peter Zenger for seditious libel against the royal
• 1:40
  Speaker 1: governor of New York. Roger Fairfax, Grand Jury, Discretion and
• 1:45
  Speaker 1: Constitutional Design, 93, Cornell, Revised Version 703, 722, and 2008.
• 1:54
  Speaker 1: The royal government would later charge him by information. Robert D. Rucker,
• 1:59
  Speaker 1: the right to ignore the law, constitutional entitlement versus judicial interpretation. 33,
• 2:05
  Speaker 1: revised 449, 452, and 53, 1999. After 1776, every state
• 2:08
  Speaker 1: except New Jersey provided a right to a grand jury
• 2:10
  Speaker 1: in its constitution, and every state adopted a statute securing
• 2:13
  Speaker 1: the right. Tomer, 17, Defense J, at 67. Thus, it
• 2:30
  Speaker 1: is not unsurprising that James Madison included the Grand Jury
• 2:34
  Speaker 1: Clause in the Fifth Amendment, nor is it surprising that
• 2:38
  Speaker 1: the amendment met no opposition. Akhil Amar, The Bill of
• 2:42
  Speaker 1: Rights as a Constitution, 100 Yale, Law Journal, 1131, 1184
• 2:45
  Speaker 1: and 85, 1991. Tomer, At 67, in fact, the amendment
• 2:54
  Speaker 1: was so popular that Hamilton devoted a Federalist paper to
• 2:58
  Speaker 1: arguing against it, citing essentially the same reason, the need
• 3:03
  Speaker 1: for growth in the law, that the Supreme Court much
• 3:06
  Speaker 1: later found convincing in Hurtado v. California, 110 U.S. 516, 1884,
• 3:10
  Speaker 1: the Federalist, No. 83, Alexander Hamilton. The clause prevented the
• 3:18
  Speaker 1: federal government from making an end around the grand jury
• 3:22
  Speaker 1: when seeking a criminal charge. But all was not well
• 3:26
  Speaker 1: with the grand juries by 1850. Jeremy Bentham strongly argued
• 3:31
  Speaker 1: in Britain that the entire jury system should be abolished.
• 3:35
  Speaker 1: Jeremy Bentham won Rationale of Judicial Evidence 524, 1827. Jeremy Bentham, too,
• 3:39
  Speaker 1: the works of Jeremy Bentham, 139 and 140, John Bowring, Educational, 1843.
• 3:50
  Speaker 1: American jurists and lawyers were becoming all too aware that
• 3:54
  Speaker 1: grand juries would indict whatever they were told or wanted
• 3:58
  Speaker 1: to indict. Thus, it is unsurprising that the field commission
• 4:02
  Speaker 1: wrote in their code, In approaching the subject of the
• 4:05
  Speaker 1: powers and duties of the grand jury, the commissioners have
• 4:09
  Speaker 1: felt much embarrassment and have therefore devoted to it the
• 4:13
  Speaker 1: patient and laborious consideration which it demanded. The value of
• 4:18
  Speaker 1: the institution is at the present day variously regarded. By
• 4:23
  Speaker 1: some it is deemed of the highest importance as furnishing
• 4:27
  Speaker 1: by reason of its secrecy a most valuable aid in
• 4:31
  Speaker 1: the efficient detection and punishment of crime, while by others
• 4:35
  Speaker 1: it has been regarded by reason of that very secrecy
• 4:40
  Speaker 1: as subversive of the rights and destructive of the liberty
• 4:43
  Speaker 1: of every citizen. Field Code at 115 With this background,
• 4:49
  Speaker 1: it is easy to see why the Field Commission chose
• 4:52
  Speaker 1: to implement new rules for grand juries. Field Code at
• 4:56
  Speaker 1: 124 and 25. The authors decided that a grand jury
• 5:00
  Speaker 1: should not admit hearsay, that it should be required to
• 5:04
  Speaker 1: look into exculpatory evidence if it comes across any in
• 5:08
  Speaker 1: its investigation. that its decision should be challengeable and, as
• 5:13
  Speaker 1: a concluding rule on this subject, the grand jury should
• 5:16
  Speaker 1: be distinctly informed by the law that they ought to
• 5:20
  Speaker 1: find an indictment when all the evidence taken together is
• 5:24
  Speaker 1: such as in their judgment would warrant a conviction by
• 5:27
  Speaker 1: the trial jury. Idaho at 125. This attempt to save
• 5:33
  Speaker 1: the grand jury was adopted by California in its Criminal
• 5:36
  Speaker 1: Practice Act in 1851. See Theodore Hiddle, The General Laws
• 5:41
  Speaker 1: of the State of California from 1850 to 1864. Then,
• 5:47
  Speaker 1: as noted above, the Idaho Territory copied these laws verbatim
• 5:51
  Speaker 1: and maintains them all to this day. In 1862, the
• 5:56
  Speaker 1: California Supreme Court recognized the import of the language of
• 6:00
  Speaker 1: the field code. See People v. Tinder and Smith Supra
• 6:04
  Speaker 1: 20 years later in Hurtado v. California 110 U.S. 516
• 6:09
  Speaker 1: 1884 the Supreme Court likely incorrectly ruled that the grand
• 6:15
  Speaker 1: jury requirement in the Fifth Amendment did not apply to
• 6:19
  Speaker 1: the states evidently convinced that the common law way of
• 6:22
  Speaker 1: running grand juries was not worth preserving thus 1889 the
• 6:28
  Speaker 1: founders of our Constitution got into an argument about the
• 6:31
  Speaker 1: necessity of a grand jury proceedings and debates at 260
• 6:36
  Speaker 1: it is somewhat evident from that debate that that not
• 6:40
  Speaker 1: all parties were fully aware of the controlling law on
• 6:43
  Speaker 1: the issues. One member was apparently not aware Hurtado had
• 6:48
  Speaker 1: been decided. Idaho at 263. More to the point, William
• 6:52
  Speaker 1: Claggett of Shoshone County told the assembly that all the
• 6:57
  Speaker 1: grand jury is entitled to do to say there is
• 6:59
  Speaker 1: probable cause to believe the man is guilty. Idaho at 266.
• 7:05
  Speaker 1: While it's true that Mr. Claggett was an accomplished criminal
• 7:08
  Speaker 1: defense attorney, it seems clear that he had little experience
• 7:12
  Speaker 1: with the field code. See Dennis Colson, Idaho's Constitution, 9,
• 7:17
  Speaker 1: Special Legislative Edition, 2003. Listing the states and territories Mr.
• 7:22
  Speaker 1: Claggett practiced. His statements to the Assembly show he did
• 7:26
  Speaker 1: not know a presentment from an information. Proceedings and Debates
• 7:31
  Speaker 1: at 266. This should be somewhat unsurprising, as California was
• 7:36
  Speaker 1: the first state to adopt the field code, largely because
• 7:39
  Speaker 1: Dudley Field, father of the code's brother, was in the
• 7:43
  Speaker 1: California legislature and later was the fifth justice named to
• 7:47
  Speaker 1: its Supreme Court in 1859. Timothy Sanford, Happy Birthday Stephen J. Field,
• 7:53
  Speaker 1: Pacific Legal Foundation, November 4th, 2010. Regardless of whether Mr.
• 7:59
  Speaker 1: Claggett was aware of the laws of the state, He
• 8:02
  Speaker 1: was a founding in 1889. The practice of prosecutors in
• 8:06
  Speaker 1: the aftermath showed what is clear from the statutory language.
• 8:11
  Speaker 1: The standard for the grand jury is beyond a reasonable doubt.
• 8:16
  Speaker 1: It appears the first Idaho case to mention this was
• 8:19
  Speaker 1: Gasper versus District Court 74, Idaho, 388, 1953. In Gasper,
• 8:21
  Speaker 1: a defendant was indicted by a grand jury. The defendant
• 8:30
  Speaker 1: filed various motions to set aside the indictment. The court
• 8:34
  Speaker 1: found that the defendant failed to raise any valid challenges
• 8:38
  Speaker 1: to the indictment. Idaho at 390-392. After concluding that the
• 8:44
  Speaker 1: defendant failed to raise any valid challenges, the court quoted
• 8:48
  Speaker 1: an instruction that the grand jury should not find an
• 8:52
  Speaker 1: indictment unless you are satisfied beyond a reasonable doubt from
• 8:57
  Speaker 1: the evidence from the government presents that the defendant is guilty.
• 9:03
  Speaker 1: The court then said in dicta that the instruction is
• 9:06
  Speaker 1: more favorable to one accused before a grand jury than
• 9:09
  Speaker 1: would be a charge embodying the statute. The court then
• 9:13
  Speaker 1: quoted I.C. section 19-1107 and again said in dicta the
• 9:20
  Speaker 1: charge has given calls for a greater degree of proof
• 9:23
  Speaker 1: to justify an indictment than the statute requires. No further
• 9:28
  Speaker 1: analysis provided by the court as to why the two
• 9:31
  Speaker 1: standards would be different, nor does the court even attempt
• 9:34
  Speaker 1: to identify what the proper standards would be. The next
• 9:39
  Speaker 1: Idaho case to mention the distinction was State v. Bullis, 1993, Idaho, 749, 1970.
• 9:48
  Speaker 1: In Bullis, a defendant was charged via grand jury indictment.
• 9:52
  Speaker 1: The defendant alleged that the grand jury had received hearsay
• 9:55
  Speaker 1: evidence in violation of Idaho code section 19 dash at 753. However,
• 10:04
  Speaker 1: the court disposed of this argument because appellant had presented
• 10:08
  Speaker 1: no record on appeal of what evidence was before the
• 10:11
  Speaker 1: grand jury. Despite disposing of this argument, the court then
• 10:15
  Speaker 1: made the following statement in dicta. Idaho Code section Section
• 10:22
  Speaker 1: 19-1102 only requires that the grand jury find that there
• 10:25
  Speaker 1: is reasonable ground for believing that a particular individual named
• 10:29
  Speaker 1: or described in the presentment has committed a certain public offense.
• 10:35
  Speaker 1: No further explanation or citation was given for that statement.
• 10:39
  Speaker 1: The obvious and glaring error in this statement is that
• 10:42
  Speaker 1: the court did not quote the standard required for finding
• 10:46
  Speaker 1: an indictment. It quoted the status defining the standard required
• 10:50
  Speaker 1: for the finding of a presentment. Again, no further analysis
• 10:55
  Speaker 1: was provided by the court as to why it would
• 10:58
  Speaker 1: be quoting the standard used for a presentment when an
• 11:01
  Speaker 1: indictment was at issue in the case. One possible explanation
• 11:06
  Speaker 1: is that neither party brought the court's attention that Idaho
• 11:10
  Speaker 1: actually has two separate statutes defining the standards for indictments
• 11:14
  Speaker 1: versus presentments. since that question was not presented as an
• 11:18
  Speaker 1: issue on appeal. Finally, the distinction was again mentioned in
• 11:23
  Speaker 1: State v. Edmondson, 113, Idaho, 230, 1987. In Edmondson, the
• 11:30
  Speaker 1: defendant challenged the grand jury indictment as a violation of
• 11:34
  Speaker 1: his equal protection rights. The court quickly disposed of this
• 11:38
  Speaker 1: argument by stating that Edmondson's failure to request a preliminary
• 11:42
  Speaker 1: hearing is dispositive of this case. Idaho at 234. However,
• 11:48
  Speaker 1: the court then continued by taking a more in-depth look
• 11:51
  Speaker 1: at the equal protection argument. While doing so, the court
• 11:55
  Speaker 1: made the following comments in dicta. The purpose of both
• 11:58
  Speaker 1: grand jury proceedings and a preliminary hearing is to determine
• 12:03
  Speaker 1: probable cause. No explanation or citation was given for this statement.
• 12:08
  Speaker 1: Several pages down, the court again commented in dicta, the
• 12:12
  Speaker 1: purpose of a grand jury proceeding is to determine whether
• 12:16
  Speaker 1: sufficient probable cause exists to bind the defendant over the trial.
• 12:21
  Speaker 1: Idaho at 236. Again, no explanation or citation was given
• 12:26
  Speaker 1: for this statement. Several pages after this, the court briefly
• 12:30
  Speaker 1: discussed the issue of prosecutorial misconduct. During this discussion, and
• 12:36
  Speaker 1: again in dicta, the court made the following comment. We
• 12:40
  Speaker 1: note that the prosecutor directed the grand jury that it
• 12:43
  Speaker 1: should not indict unless all the elements of the alleged
• 12:46
  Speaker 1: crime are proven beyond a reasonable doubt. This is a
• 12:50
  Speaker 1: much higher standard than is required by Idaho law. At 268, again,
• 12:57
  Speaker 1: no explanation or citation was given for this comment. One
• 13:02
  Speaker 1: feasible explanation for why the court in Edmondson was of
• 13:06
  Speaker 1: the belief that only probable cause was required for finding
• 13:10
  Speaker 1: of an indictment is that by the time Edmondson was decided,
• 13:14
  Speaker 1: Idaho had now adopted Criminal Rule 6, which provided that
• 13:18
  Speaker 1: an indictment could be found if there was probable cause
• 13:22
  Speaker 1: to believe the accused had committed the crime. The court
• 13:25
  Speaker 1: did not explicitly cite this rule, but the rule was
• 13:28
  Speaker 1: in effect at the time of Edmondson. This brings us
• 13:33
  Speaker 1: to our next issue. A. The Idaho Supreme Court cannot
• 13:37
  Speaker 1: adjust the standard of proof as it is a substantive right.
• 13:42
  Speaker 1: Despite the fact that I.C. Section 19-1107 explicitly sets the
• 13:48
  Speaker 1: standard of proof required for an indictment approximately 100 years
• 13:53
  Speaker 1: after Idaho codified the standard to be applied, our Supreme
• 13:58
  Speaker 1: Court adopted the I.C.R. 6.5a states the grand jury ought
• 14:06
  Speaker 1: to find an indictment when there is probable cause to
• 14:10
  Speaker 1: believe defendant committed the offense. It is therefore necessary to
• 14:14
  Speaker 1: determine what standard governs the statute or the criminal rule.
• 14:20
  Speaker 1: This court's rule making power goes to procedural as opposed
• 14:24
  Speaker 1: to substantive rules. State v. Beam 121, Idaho 862-63, 1992,
• 14:32
  Speaker 1: emphasis in original. Thus, if a statute speaks towards a
• 14:37
  Speaker 1: substantive right, it will prevail over a contrary criminal rule.
• 14:41
  Speaker 1: But if a statute speaks only towards a procedural rule,
• 14:45
  Speaker 1: the criminal rule will prevail. See State v. Currington 108,
• 14:49
  Speaker 1: Idaho 539-541, 1985. Although a clear line of demarcation cannot
• 14:58
  Speaker 1: always be delineated between what is substantive and what is procedural.
• 15:02
  Speaker 1: The following general guidelines provide a useful framework for analysis.
• 15:08
  Speaker 1: Substantive law prescribes norms for societal conduct and punishments for
• 15:13
  Speaker 1: violations thereof. It thus creates, defines, and regulates primary rights.
• 15:20
  Speaker 1: In contrast, practice and procedure pertain to to the essentially
• 15:24
  Speaker 1: mechanical operations of the courts by which substantive laws, rights,
• 15:29
  Speaker 1: and remedies are effectuated. The standard of proof required for
• 15:34
  Speaker 1: the finding of an indictment is not a procedural right.
• 15:38
  Speaker 1: This standard of proof does not concern the forms of process, writs, pleadings,
• 15:43
  Speaker 1: and motions. I see section 1-213. It does not deal
• 15:49
  Speaker 1: with the manner of service or time for appearance nor
• 15:53
  Speaker 1: is it a matter of practice and procedure in all
• 15:56
  Speaker 1: actions and proceedings. The grand jury statutes set out the
• 16:00
  Speaker 1: substantive rights of every citizen that must be followed before
• 16:05
  Speaker 1: any citizen can be held to answer on a felony charge.
• 16:09
  Speaker 1: This is a substantive right in that it grants every
• 16:12
  Speaker 1: citizen of Idaho the right to not be held to
• 16:15
  Speaker 1: answer on a felony charge unless the standards set out
• 16:19
  Speaker 1: in I.C. section 19-1102 and 1007 has been met, where
• 16:26
  Speaker 1: this only the matter of procedure, every citizen in this
• 16:30
  Speaker 1: state would be subject to detention to answer for a
• 16:33
  Speaker 1: felony charge based upon the whims of the Supreme Court.
• 16:37
  Speaker 1: Standards of proof are considered substantive in every context except
• 16:42
  Speaker 1: apparently in dealing with conflict of laws. The Idaho Supreme
• 16:46
  Speaker 1: Court has found it is a procedural issue and the
• 16:50
  Speaker 1: standard of the forum state applies. Carroll v. MBNA, America Bank, 148,
• 16:56
  Speaker 1: Idaho 261, 267, 209, citing restatement 2nd Conflict of Laws,
• 16:58
  Speaker 1: Section 133 and 135. The United States Supreme Court, meanwhile, disagrees. C.
• 17:12
  Speaker 1: Meltronic Incorporated v. Morawski Family Ventures, LLC 571, U.S. 191, 2014,
• 17:16
  Speaker 1: Garrett v. Moore McCormack Company, 317 U.S. 239, 1942. In 1942,
• 17:18
  Speaker 1: the court found that the standard of proof is part
• 17:21
  Speaker 1: of the substance of a claim and cannot be considered
• 17:23
  Speaker 1: a mere incident of a form of procedure. Garrett 317, U.S.
• 17:40
  Speaker 1: at 249. The court has followed that holding in various
• 17:44
  Speaker 1: cases thereafter. C. Raleigh v. Illinois, Department of Revenue, 530, U.S. 15, 2021, 120, 1951, 147,
• 17:49
  Speaker 1: Legal Edition 2D, 13. However, we deal here with criminal law.
• 18:03
  Speaker 1: counsel can find no case that permits the courts to
• 18:06
  Speaker 1: determine the standards in a criminal matter. Most recently, the
• 18:10
  Speaker 1: United States Supreme Court considered standards regarding defenses in a
• 18:14
  Speaker 1: criminal action and never once indicated it was not for
• 18:19
  Speaker 1: Congress to set the standard because it is a power
• 18:22
  Speaker 1: belonging to the judiciary. See Ruan v. United States, 142
• 18:26
  Speaker 1: Supreme Court, 2370, 2022. It appears from the authorities that
• 18:33
  Speaker 1: courts set the standard of proof by rule only in
• 18:36
  Speaker 1: situations that are themselves creatures of procedure, like the standard
• 18:41
  Speaker 1: to create a class in a class action. Binder v.
• 18:45
  Speaker 1: Rainbow Medical, Inc., 831 Southern District 254, Florida District Court
• 18:52
  Speaker 1: of Appeals 2002, for the standard to show a past
• 18:55
  Speaker 1: conviction is admissible under the evidentiary rules State of Rendon, 148,
• 19:02
  Speaker 1: Arizona 524, 715, page 2D, 77, Arizona Court of Appeals
• 19:09
  Speaker 1: of 1986. If that were not enough, several important constitutional
• 19:15
  Speaker 1: provisions should be kept in mind when considering whether this
• 19:18
  Speaker 1: standard is substantive. First, our Constitution provides that all laws
• 19:24
  Speaker 1: now in force in the Territory of Idaho shall enforce...
• 19:28
  Speaker 1: until they be altered or repealed by the legislature. Idaho Constitution,
• 19:34
  Speaker 1: Article 21, Section 2, Second. The legislature shall pass all
• 19:39
  Speaker 1: necessary laws to carry into effect the provisions of this Constitution.
• 19:45
  Speaker 1: Idaho Constitution, Article 21, Section 5, Final. the right to
• 19:50
  Speaker 1: have a grand jury make either a presentment or indictment
• 19:54
  Speaker 1: finding prior to being held for trial is an Idaho
• 19:58
  Speaker 1: constitutional right. Idaho Constitutional Article 1, Section 8. These provisions
• 20:05
  Speaker 1: have important implications in this case. First, because I.C. section 19,
• 20:11
  Speaker 1: 1102 and 1107 were in force at the time our
• 20:15
  Speaker 1: constitution was adopted, they shall remain in force until they
• 20:18
  Speaker 1: be altered or appealed by the legislature. Not simply until
• 20:23
  Speaker 1: the judiciary decides to alter them, but until the legislature
• 20:27
  Speaker 1: amends or appeals these statutes. Second, because the legislature was
• 20:33
  Speaker 1: charged with passing all laws necessary to carry into effect
• 20:37
  Speaker 1: the provisions of our Constitution, and because the right to
• 20:41
  Speaker 1: a grand jury, presentment, or indictment is most certainly a
• 20:45
  Speaker 1: constitutional right, it necessarily follows that it is the legislature
• 20:51
  Speaker 1: who has the authority to pass laws that will breathe
• 20:54
  Speaker 1: life into the constitutional right. To simply say that a
• 20:58
  Speaker 1: person has a right to a grand jury determination means
• 21:01
  Speaker 1: very little unless we define what a grand jury determination
• 21:05
  Speaker 1: even means. If our Constitution simply provided for the right
• 21:10
  Speaker 1: to a grand jury, but no law set out that
• 21:13
  Speaker 1: meant or what findings were necessary, the right conferred in
• 21:17
  Speaker 1: Article 1, Section 8 would be meaningless. This is why
• 21:21
  Speaker 1: Article 21, Section 15 says, leaves it to the legislature
• 21:25
  Speaker 1: to pass laws defining what is meant by the constitutional right.
• 21:30
  Speaker 1: It is not the judiciary that is given the power
• 21:33
  Speaker 1: to carry into effect our constitutional rights. It is the legislature. Third,
• 21:38
  Speaker 1: because the right to a grand jury is preserved in
• 21:41
  Speaker 1: our Constitution, and because at the time our Constitution was adopted,
• 21:46
  Speaker 1: Section 19-1102 and 1107 defined what these rights meant, Article 1,
• 21:53
  Speaker 1: Section 8, must be construed in light of the law
• 21:56
  Speaker 1: prior to its adoption. Green at 887-354, page 3D, at 449.
• 21:59
  Speaker 1: See also State v. Clark, 165, Idaho, 393-446, page 3D, 451, 2019.
• 22:01
  Speaker 1: State v. Matthews, 129, Idaho, 865, 934, page 2D, 931, 2019. 1997.
• 22:24
  Speaker 1: What this means is that I.C. section 19, 1102 and
• 22:29
  Speaker 1: 1007 are actually much more than mere substantive statutory rights.
• 22:36
  Speaker 1: They're actually incorporated into and part of our substantive constitutional
• 22:41
  Speaker 1: rights to a grand jury. All right, folks, that's going
• 22:44
  Speaker 1: to do it for part two. In the next episode,
• 22:46
  Speaker 1: we'll pick up with part three and finish this bad
• 22:49
  Speaker 1: boy off. All of the information that goes with this
• 22:52
  Speaker 1: episode can be found in the description box. What's up, everyone,
• 22:57
  Speaker 1: and welcome back to the program. In this episode, we're
• 23:01
  Speaker 1: going to dive right back into the court documents, and
• 23:04
  Speaker 1: this time we're going to take a look at the
• 23:07
  Speaker 1: extensive objection to the defendant's motion to dismiss indictment on
• 23:12
  Speaker 1: grounds of error in the grand jury instructions. And after
• 23:16
  Speaker 1: the 14-page objection or so, There's a whole bunch of
• 23:20
  Speaker 1: precedent that goes along with it. And like usual, we're
• 23:24
  Speaker 1: not going to talk about that precedent. If you're interested
• 23:27
  Speaker 1: in checking that out, you can follow the link and
• 23:30
  Speaker 1: look at all of that previous legal precedent. All right,
• 23:34
  Speaker 1: so let's get busy. Case number CR 29-22-2805. Objection to
• 23:43
  Speaker 1: defendant's motion to dismiss indictment on grounds of error in
• 23:47
  Speaker 1: grand jury instructions. the state of Idaho plaintiff versus Brian C. Koberger,
• 23:53
  Speaker 1: the defendant. The state submits this objection to address defendant's
• 23:58
  Speaker 1: assertion that the standard of proof in the grand jury
• 24:01
  Speaker 1: proceeding is beyond a reasonable doubt. Far from novel, defendant's
• 24:06
  Speaker 1: argument has made numerous appearances throughout state in recent years.
• 24:11
  Speaker 1: Even those pushing this jarring theory are forced to concede
• 24:15
  Speaker 1: that The whole of modern jurisprudence on the issue is
• 24:19
  Speaker 1: against it. And to the state's knowledge, every court in
• 24:23
  Speaker 1: the state that has addressed this argument has soundly rejected it.
• 24:27
  Speaker 1: See Opinion State v. Williams, Case No. CR 28-22-18-387, March 28, 2023.
• 24:31
  Speaker 1: Dugan J. Attached as Exhibit A. Memorandum Decision, State v. Peone,
• 24:45
  Speaker 1: Case Numbers CR 29-22-8343, December 22nd of 2022. Meyer J.,
• 24:48
  Speaker 1: Attached as Exhibit B. Memorandum Decision, State v. Rodriguez, Case
• 24:51
  Speaker 1: Numbers CR 14-20-22-902, May 21st, 2021. Petty J., Attached as
• 25:10
  Speaker 1: Exhibit C for the reasons explained below, the law requires
• 25:15
  Speaker 1: this court to join that growing list of jurists. Part A.
• 25:20
  Speaker 1: The Idaho Supreme Court has held probable cause is the
• 25:24
  Speaker 1: correct standard for proof for a grand jury. Defendant's argument
• 25:29
  Speaker 1: that the beyond reasonable doubt standard applies to grand jury
• 25:33
  Speaker 1: proceedings is in direct conflict with Idaho's Supreme Court precedent.
• 25:38
  Speaker 1: Defendant seems to acknowledge as much, but asks this court
• 25:42
  Speaker 1: to recognize what he claims is the long string of
• 25:45
  Speaker 1: error that led us here. Defendant request ignores one of
• 25:50
  Speaker 1: the most basic tenets of our legal system. The Idaho
• 25:54
  Speaker 1: Supreme Court has been and remains the final arbiter of
• 25:58
  Speaker 1: Idaho rules of law. State v. Guzman, 122, Idaho, 981, 986, 87, page. 2D,
• 26:09
  Speaker 1: 660 through 665 and 666, 1991. The Idaho Supreme Court
• 26:17
  Speaker 1: has declared that the primary purpose of a grand jury
• 26:21
  Speaker 1: proceeding is to determine probable cause. State v. Edmondson, 113, Idaho, 230, 234, 743, p. 2D, 459, 463, 1987.
• 26:36
  Speaker 1: This court is duty-bound to apply that controlling precedent and
• 26:40
  Speaker 1: reject defendant's argument to the contrary. Defendant's claims that the
• 26:45
  Speaker 1: court's numerous probable cause statements in Edmondson were dicta. Nonsense.
• 26:52
  Speaker 1: A statement from the Idaho Supreme Court is only dicta
• 26:55
  Speaker 1: if the statement is not necessary to decide the issue presented.
• 26:59
  Speaker 1: State v. Hawkins, 155, Idaho, 69, 74, 305, P. 3D, 513, 518, 2013.
• 27:03
  Speaker 1: See Seminole Tribe v. Florida, 517 U.S., 44, 67, 1996.
• 27:05
  Speaker 1: When an opinion issues for the court, it is not
• 27:08
  Speaker 1: only the result but also those portions of the opinion
• 27:10
  Speaker 1: necessary to that result by which we are bound. The
• 27:30
  Speaker 1: statements in Edmondson that probable cause is the standard of
• 27:33
  Speaker 1: proof for grand jury proceedings were necessary to at least
• 27:37
  Speaker 1: two of the court's holdings. First, the court held a
• 27:41
  Speaker 1: prosecutor's decision to use a grand jury rather than a
• 27:45
  Speaker 1: preliminary hearing does not violate equal protection. Central to the
• 27:49
  Speaker 1: court's rationale was the determination that a grand jury proceeding
• 27:54
  Speaker 1: and a preliminary hearing serve the same purpose and have
• 27:58
  Speaker 1: the same standard of proof. The purpose of a grand
• 28:01
  Speaker 1: jury proceeding and a preliminary hearing is to determine probable cause.
• 28:06
  Speaker 1: Any advantage that a preliminary hearing affords a defendant is
• 28:10
  Speaker 1: purely incidental to that purpose. The independent grand jury's function
• 28:16
  Speaker 1: would be duplicated by requiring a subsequent preliminary hearing. Defendants
• 28:29
  Speaker 1: suggest this holding is dicta because the court noted that
• 28:33
  Speaker 1: Edmondson did not request a preliminary hearing. Idaho at 233, 743, P. 2D
• 28:41
  Speaker 1: at 462. Despite acknowledging it could have disposed of the
• 28:45
  Speaker 1: case on that basis, the court addressed the arguments raised
• 28:50
  Speaker 1: by Edmondson because of the important constitutional issues at stake.
• 28:55
  Speaker 1: The court thus saw the equal protection claim as properly
• 28:59
  Speaker 1: before it and resolved the issue by addressing the merits
• 29:03
  Speaker 1: of Edmondson's claim. See Idaho at 235-743, P. 2D at 464.
• 29:11
  Speaker 1: We accept the above reasoning as persuasive and hold that
• 29:15
  Speaker 1: a prosecutor may proceed by either alternative, indictment or information.
• 29:21
  Speaker 1: Emphasis added. Moreover, Idaho's appellate courts have repeatedly applied Edmondson's
• 29:28
  Speaker 1: equal protection holdings as binding precedent, which means this court
• 29:33
  Speaker 1: must do the same. See State v. Odiaga 125, Idaho 384, 385. 389, 871, p. 2d, 801, 806, 1994.
• 29:45
  Speaker 1: In Edmondson, this court specifically, held that the prosecutor can
• 29:51
  Speaker 1: use either a grand jury proceeding or a preliminary hearing
• 29:55
  Speaker 1: before an impartial magistrate to initiate criminal proceedings. State v. Nelson, 131, Idaho, 210, 213, 953, P. 2D, 650, 654,
• 30:09
  Speaker 1: Court of Appeals, 1998. Finding the reasoning presented in Edmondson
• 30:16
  Speaker 1: to be dispositive on the issue of whether the defendant
• 30:20
  Speaker 1: had a right to a preliminary hearing. The State v. Martinez, 128, Idaho, 104, 111, 910, P. 2D, 776, 783,
• 30:32
  Speaker 1: Court of Appeals, 1995. Moreover, as held in Edmondson, a
• 30:38
  Speaker 1: defendant indicted by a grand jury is not entitled to
• 30:42
  Speaker 1: a preliminary hearing. State v. Vaughn, 124, Idaho, 576, 584, 861, P. 2D, 1241, 1249,
• 30:46
  Speaker 1: Court of Appeals, 1993. Our Supreme Court has held that
• 31:00
  Speaker 1: where a defendant has been indicted by a grand jury,
• 31:04
  Speaker 1: the defendant is not afforded a right to a preliminary hearing.
• 31:08
  Speaker 1: Citing Edmondson 113, Idaho at 232-33, 743, P. 2D, 461, and 462. Second,
• 31:10
  Speaker 1: the Edmondson Court decided as a matter of first impression
• 31:13
  Speaker 1: that that an indictment will be sustained by a reviewing
• 31:28
  Speaker 1: court when improper evidence is excluded and probable cause remains.
• 31:33
  Speaker 1: The purpose of the grand jury proceeding is to determine
• 31:36
  Speaker 1: whether sufficient probable cause exists to bind the defendant over
• 31:41
  Speaker 1: for trial. The determination of guilt or innocence is saved
• 31:45
  Speaker 1: for a later day. As long as the grand jury
• 31:49
  Speaker 1: has received legally sufficient evidence, which in and of itself
• 31:53
  Speaker 1: supports a finding of probable cause, it is not for
• 31:56
  Speaker 1: an appellate court to set aside the indictment. Idaho at
• 32:00
  Speaker 1: 236-37-743 p. 2d at 465 and 66. Emphasis added. This process
• 32:01
  Speaker 1: of review would make no sense were the correct standard
• 32:05
  Speaker 1: of proof for a grand jury to anything other than
• 32:18
  Speaker 1: probable cause. In any event, post-Edmondson, the Idaho Supreme Court
• 32:24
  Speaker 1: has consistently applied the probable cause standard to evidence presented
• 32:28
  Speaker 1: to the grand jury. See the state versus Martinez, 125 Idaho, 445, 448,
• 32:32
  Speaker 1: and 449, 872, P. 2D, 708, 711, and 12, 1994. Citing
• 32:33
  Speaker 1: Idaho code, section 19-1107, and then holding, there was sufficient
• 32:51
  Speaker 1: independent evidence to support a finding of probable cause, and
• 32:56
  Speaker 1: therefore this court will not set aside the indictment. State v. Jones, 125, Idaho, 477,
• 33:02
  Speaker 1: 483 and 84, 873, p. 2d, 122, 128, and 29, 1994.
• 33:03
  Speaker 1: Because there is independent legal evidence to support a finding
• 33:18
  Speaker 1: of probable cause, and because the totality of the circumstances
• 33:22
  Speaker 1: at the grand jury proceeding do not demonstrate prejudice, there
• 33:27
  Speaker 1: is no basis for dismissal of the indictment. The Idaho
• 33:31
  Speaker 1: Court of Appeals has done the same. CEG State v. Marsalis,
• 33:36
  Speaker 1: 151 Idaho, 872, 877, N78, 264, P. 3D, 979, 984 and 85,
• 33:48
  Speaker 1: Court of Appeals, 2011, and all tribunals inferior to the
• 33:53
  Speaker 1: Court of Appeals are obligated to abide by decisions issued
• 33:58
  Speaker 1: by the Court of Appeals. See Guzman, 122, Idaho, at 986, 842, P. 2D,
• 34:01
  Speaker 1: at 665. In short, It is the black letter law
• 34:11
  Speaker 1: in Idaho that the standard of proof for indictment by
• 34:14
  Speaker 1: a grand jury is probable cause. Part B. Section 19-1107
• 34:21
  Speaker 1: sets the standard of proof for grand juries at probable cause.
• 34:26
  Speaker 1: Even if this court were writing on a clean legal slate,
• 34:29
  Speaker 1: the statute relied on by defendant sets the standard of
• 34:33
  Speaker 1: proof for a grand jury at probable cause. Statutory Interpretation
• 34:38
  Speaker 1: begins with the statute's plain language, State v. Wilson, 165, Idaho, 64, 67, 438, p. 3d, 302, 305, 2019.
• 34:42
  Speaker 1: The statute is considered as a whole, and words are
• 34:46
  Speaker 1: given their plain, usual, and ordinary meanings, i.d., quoting State v. Owens, 158, Idaho, 1, 3, 343, P. 3D, 30, 32, 2015.
• 35:09
  Speaker 1: The Idaho Supreme Court has also adopted the rule that
• 35:15
  Speaker 1: when a statute and rule can be reasonably interpreted so
• 35:19
  Speaker 1: that there is no conflict between them, they should be
• 35:22
  Speaker 1: so interpreted rather than interpreted in a way that results
• 35:26
  Speaker 1: in conflict. State v. Weigel, 165, Idaho 482, 486, N. 4, 447, P. 3D, 930, 934, N. 4, 2019,
• 35:31
  Speaker 1: quoting State v. Johnson, 145, Idaho 970, 974, 188, P. 3D, 912, 916,
• 35:33
  Speaker 1: and 2008. Idaho Code Section 19-1107 and Idaho Criminal Rule 6.5a
• 36:00
  Speaker 1: share the same title, and address the same issue. Sufficiency
• 36:05
  Speaker 1: of Evidence to Warrant Indictment. The rule explicitly sets the
• 36:09
  Speaker 1: standard of proof at probable cause. See I.C.R. 6.5a. The
• 36:16
  Speaker 1: statute can, and therefore must, be read to do the same.
• 36:21
  Speaker 1: See State v. Garner 161, Idaho 708, 711, 390p. 3d, 434,
• 36:30
  Speaker 1: at 437 and 2017. Statutes and rules that can be
• 36:34
  Speaker 1: read together without conflicts must be read in that way.
• 36:39
  Speaker 1: The plain language of the statute states the grand jury
• 36:43
  Speaker 1: ought to find an indictment when all the evidence before them,
• 36:46
  Speaker 1: taken together, if unexplained or uncontradicted, would, in their judgment,
• 36:52
  Speaker 1: warrant a conviction by a trial jury. Idaho Code Section
• 36:57
  Speaker 1: 19-1107 The Idaho Supreme Court has already rejected defendants' claim
• 37:03
  Speaker 1: that the language requires the grand jury to find the
• 37:06
  Speaker 1: suspect guilty beyond a reasonable doubt. See Gasper v. 7th
• 37:11
  Speaker 1: Judicial District, 74, Idaho, 388, 395, 264, p. 2d, 679, 683, 1953. Observing.
• 37:24
  Speaker 1: that an instruction setting the standard of proof for the
• 37:28
  Speaker 1: grand jury as beyond a reasonable doubt calls for greater
• 37:32
  Speaker 1: degree of proof to justify an indictment than Idaho Code
• 37:36
  Speaker 1: Section 19-1107 requires. To the extent that Section 19-1107 sets
• 37:43
  Speaker 1: a standard of proof, the phrases in their judgment and
• 37:46
  Speaker 1: warrant a conviction by a trial jury indicate the standard
• 37:50
  Speaker 1: of proof is much different than the defendant opines. Section
• 37:56
  Speaker 1: 19-1107 emphasizes that whether sufficient evidence has been presented for
• 38:01
  Speaker 1: an indictment is left to the judgment of the grand jury.
• 38:06
  Speaker 1: The phrase in their judgment must be given more effect
• 38:09
  Speaker 1: than just dictating who makes the decision, which is already
• 38:13
  Speaker 1: clear from other language in the statute. See Idaho Code,
• 38:17
  Speaker 1: Section 19-1107. The grand jury ought to find an indictment.
• 38:22
  Speaker 1: See also State v. Norquist. 309 N.W.2D 109 117 N.D.
• 38:30
  Speaker 1: 1981 emphasizing the language of a nearly identical North Dakota
• 38:36
  Speaker 1: statute reflects the legislature's intent to allow the grand jury
• 38:40
  Speaker 1: to determine whether or not the evidence put before it
• 38:43
  Speaker 1: could withstand the test of a trial. The practice of
• 38:47
  Speaker 1: leaving the sufficiency of evidence questioned solely to the judgment
• 38:51
  Speaker 1: of the grand jury is consistent with the historical practice
• 38:55
  Speaker 1: of courts refusing to inquire into the sufficiency of the
• 38:59
  Speaker 1: evidence presented to a grand jury absent an allegation that
• 39:03
  Speaker 1: no evidence was presented. CEG Greenberg v. Supreme Court of
• 39:09
  Speaker 1: San Francisco 121 p. 2d 713-715 Cal 1942 discussing the settled
• 39:18
  Speaker 1: law in most jurisdictions that if there is some evidence
• 39:22
  Speaker 1: to support the indictment, the courts will not inquire into
• 39:25
  Speaker 1: its efficiency, but the lack of any evidence conclusively established
• 39:30
  Speaker 1: that the grand jury has exceeded its authority in returning
• 39:35
  Speaker 1: an indictment. Emphasis added. Moreover, by including the phrase warrant
• 39:40
  Speaker 1: a conviction by trial jury, the legislature did not intend
• 39:44
  Speaker 1: to equate a grand jury proceeding with a trial. Comiskey v.
• 39:49
  Speaker 1: Supreme Court, 839 P. 2d, 1059, 1066 Cal, 1992. As defined
• 39:57
  Speaker 1: at the time the statute was adopted, the word warrant
• 40:00
  Speaker 1: meant to authorize, to give authority or power to do
• 40:04
  Speaker 1: or forbear anything by which the person authorized and secured
• 40:09
  Speaker 1: or saved harmless from any loss or damage by the act. Goodrich, Chauncey, A.,
• 40:15
  Speaker 1: An American Dictionary of the English Language, G. N. C. Merriam-Springfield, Massachusetts, 1862,
• 40:23
  Speaker 1: page 1249. It had a consistent definition today. 1. A.
• 40:29
  Speaker 1: Authorization or Sanction, as by a superior, or the law. B. Justification,
• 40:35
  Speaker 1: reasonable grounds, for some act, course, statement, or belief. Webster's
• 40:40
  Speaker 1: New World Dictionary, 2D College Edition, 1980. These phrases, taken together,
• 40:46
  Speaker 1: indicate that the legislature never intended that the grand jury
• 40:50
  Speaker 1: would determine whether the suspect is guilty of the alleged
• 40:54
  Speaker 1: crime beyond a reasonable doubt. Rather, the legislature left to
• 40:58
  Speaker 1: the grand jury to determine in their judgment whether reasonable
• 41:03
  Speaker 1: grounds exist for a future trial jury to convict the suspect.
• 41:07
  Speaker 1: Idaho Code 19-1107. Consistent with the statutory language, Rule 6.5a
• 41:15
  Speaker 1: directs grand jurors how they should exercise their legislatively empowered judgment.
• 41:21
  Speaker 1: The grand jury must determine whether an offense has been
• 41:24
  Speaker 1: committed and whether there is probable cause to believe that
• 41:27
  Speaker 1: the accused committed it. I.C.R. 6.5a because the statute and
• 41:34
  Speaker 1: the rule can be read together to set the standard
• 41:37
  Speaker 1: of proof for a grand jury at probable cause, they
• 41:40
  Speaker 1: must be read in that way. Garner 161, Idaho at 711, 390, P. 3D
• 41:44
  Speaker 1: at 437. Defendant argues the precursor to I.C. section 19-1107
• 41:47
  Speaker 1: came from a California statute and must be interpreted consistent
• 42:01
  Speaker 1: with the meaning California statute had at the time, and
• 42:05
  Speaker 1: according to defendant, the California Supreme Court read its statute
• 42:09
  Speaker 1: to impose a beyond a reasonable doubt standard to grand
• 42:12
  Speaker 1: jury proceedings. Quoting People v. Tinder, 19 California, 539-542-1862 But
• 42:22
  Speaker 1: that would be news to the California Supreme Court, who
• 42:25
  Speaker 1: has rejected the very interpretation of Tinder defendant relies on here.
• 42:31
  Speaker 1: See Comiskey, 839 P. 2D at 1066. As the California Supreme
• 42:38
  Speaker 1: Court explained, the Tinder court's reference to probable cause was
• 42:42
  Speaker 1: a comment on the quality of evidence required to return
• 42:45
  Speaker 1: an indictment, not on the standard of proof for grand
• 42:48
  Speaker 1: jury proceedings. Unlike Tinder, Comiskey denies addressed the standard of
• 42:53
  Speaker 1: proof for grand jury proceedings in California and held California's
• 42:58
  Speaker 1: version of Idaho Code section 19-1107 requires a finding of
• 43:04
  Speaker 1: probable cause. Moreover, the assertion that Idaho incorporated sub silentio,
• 43:12
  Speaker 1: a beyond a reasonable doubt standard for grand juries when
• 43:15
  Speaker 1: the Idaho Constitution was adopted, would be a surprise to
• 43:19
  Speaker 1: Idaho's founding fathers. During the debate on Article 1, Section 8,
• 43:24
  Speaker 1: William H. Claggett, the president of the Idaho Constitutional Convention,
• 43:29
  Speaker 1: advocated for keeping the grand jury system and stated the
• 43:33
  Speaker 1: standard of proof for grand juries in Idaho is probable cause.
• 43:37
  Speaker 1: That is all the grand jury is entitled to do,
• 43:41
  Speaker 1: to say that there is probable cause to believe the
• 43:44
  Speaker 1: man is guilty. Proceedings and debates of the Constitutional Convention
• 43:49
  Speaker 1: of Idaho, 1889, Page 266, I.W. Hart, Education Edition, 1912.
• 43:56
  Speaker 1: No one present at the debate offered a different opinion.
• 44:01
  Speaker 1: A strange reaction from a group allegedly in the midst
• 44:04
  Speaker 1: of setting the standard of proof for grand juries at
• 44:08
  Speaker 1: Beyond a Reasonable Doubt. C. State v. Clark, 165, Idaho 393, 397, 446. P. 3D 451-455-2019.
• 44:22
  Speaker 1: Explaining the best resource for determining the intent of the
• 44:25
  Speaker 1: framers is the compilation of the proceedings and debates of
• 44:30
  Speaker 1: the Constitutional Convention of Idaho in 1889, and stating statutes
• 44:36
  Speaker 1: in existence at the time of the adoption of Idaho's
• 44:39
  Speaker 1: Constitution and the common law need only be examined in
• 44:43
  Speaker 1: the absence of the words of the framers. Part C.
• 44:49
  Speaker 1: Even if Idaho Code Section 19-1107 and Rule 6.5a conflict,
• 44:55
  Speaker 1: the rule controls and the result is the same. Even
• 45:00
  Speaker 1: if I.C. Section 19-1107 and Rule 6.5a conflict, the rule
• 45:06
  Speaker 1: controls and the standard for grand juries is probable cause.
• 45:11
  Speaker 1: The Idaho Supreme Court has the inherent power to make
• 45:15
  Speaker 1: rules governing the procedure of in all Idaho's courts. Talbot v.
• 45:19
  Speaker 1: Ames Construction, 127 Idaho 648-651-904, P. 2D 560-563-1995. When a rule
• 45:31
  Speaker 1: and statute conflict, the question then becomes whether the subject
• 45:36
  Speaker 1: of the law is substantive or procedural. Substantive law prescribes
• 45:41
  Speaker 1: norms for societal conduct and punishments for violations thereof. It
• 45:46
  Speaker 1: thus creates, defines, and regulates primary rights. In contrast, practice
• 45:52
  Speaker 1: and procedure pertain to essentially mechanical operations of the courts
• 45:57
  Speaker 1: by which substantive laws, rights, and remedies are effectuated. State v.
• 46:03
  Speaker 1: Abdullah 158, Idaho 386, 483, 348, p. 3d, 198, 2015. As
• 46:13
  Speaker 1: a general matter, questions about standards of proof have long
• 46:17
  Speaker 1: been recognized as procedural, not substantive, across a broad range
• 46:22
  Speaker 1: of legal fields. United States v. Montalvo 331 F. 3D 1052
• 46:26
  Speaker 1: 1061 9th Circuit 2003 Kaczynski J. Concurring C. E. G.
• 46:29
  Speaker 1: Carroll v. MBNA American Bank 148 Idaho 261 267 220, p. 3d, 1080, 1086,
• 46:47
  Speaker 1: and 2009. Explaining procedural matters includes sufficiency of evidence. Specific
• 46:55
  Speaker 1: to the criminal context, a procedural rule is one that
• 46:58
  Speaker 1: merely raises the possibility that someone convicted with use of
• 47:03
  Speaker 1: the invalidated procedure might have been acquitted otherwise. A rule
• 47:16
  Speaker 1: is substantive only if it alters the range of conduct
• 47:20
  Speaker 1: or the class of persons that the law punishes. The
• 47:23
  Speaker 1: standard of proof for a grand jury proceeding falls on
• 47:27
  Speaker 1: the procedural side of the line because it does not
• 47:29
  Speaker 1: dictate the range of conduct the law punishes but only
• 47:34
  Speaker 1: affects the likelihood that such conduct will result in an indictment.
• 47:39
  Speaker 1: Defendants suggest that Idaho Code 19-1107 is somehow insulated from
• 47:45
  Speaker 1: the procedural versus substantive test because it was in effect
• 47:50
  Speaker 1: when Idaho adopted a constitution. Not so. The Idaho Supreme
• 47:55
  Speaker 1: Court will ignore a nullity, a statute purporting to govern procedure,
• 48:00
  Speaker 1: regardless of whether it was codified long before Idaho's constitution
• 48:05
  Speaker 1: was created or during the most recent legislative session, Weigel 165,
• 48:10
  Speaker 1: Idaho at 486 and 87, 447, P. 3D at 934 and 35. Thus,
• 48:12
  Speaker 1: in the state's view, Idaho Code 19-1107 and Idaho Criminal
• 48:15
  Speaker 1: Rule 6.5a can be read without conflict, and set probable
• 48:31
  Speaker 1: cause as the standard of proof for grand juries. But
• 48:35
  Speaker 1: even if a conflict exists, the rule, controls, and standard
• 48:39
  Speaker 1: of proof for grand juries in Idaho is still probable cause. D.
• 48:45
  Speaker 1: Defendant asserts a theory. The law does not allow and
• 48:48
  Speaker 1: seeks a remedy this court cannot grant. Defendant's motion should
• 48:53
  Speaker 1: be denied as it rests entirely on an erroneous legal theory.
• 48:58
  Speaker 1: But it has other problems as well. As defendant acknowledges,
• 49:02
  Speaker 1: the statutes governing grand jury proceedings do not allow for
• 49:06
  Speaker 1: a challenge to their instructions given to the jury. The
• 49:10
  Speaker 1: statute that sets out the grounds on which a defendant
• 49:13
  Speaker 1: can seek to set aside an indictment does not mention
• 49:16
  Speaker 1: instructions to the grand jury. See Idaho Code. 19-1601. And
• 49:23
  Speaker 1: the inclusion of specific grounds to challenge the indictment in
• 49:27
  Speaker 1: the statute excludes the consideration of any other. State v.
• 49:32
  Speaker 1: Araguay 44 Idaho 43 254 P. 788 796-1927. Defendant claims the
• 49:42
  Speaker 1: Idaho Supreme Court has adopted the theory that a defendant
• 49:46
  Speaker 1: can challenge the grand jury instructions, but he cites for
• 49:50
  Speaker 1: a rule a passage in Gasper that he previously labeled
• 49:54
  Speaker 1: dicta because it did not suit his argument. It seems
• 49:59
  Speaker 1: to the state that dicta for the goose is dicta
• 50:02
  Speaker 1: for the gander. But assuming the Idaho Supreme Court did
• 50:05
  Speaker 1: what defendant claims in Gasper, the court merely allowed a
• 50:09
  Speaker 1: defendant the opportunity to make a showing of prejudice. Gasper, 74, Idaho, 396, 264, P. 2D,
• 50:19
  Speaker 1: at 683. This, the defendant cannot do. In fact, he
• 50:24
  Speaker 1: fails even to allege that the grand jury would not
• 50:27
  Speaker 1: have indicted him on a beyond a reasonable doubt standard
• 50:31
  Speaker 1: of proof. C.F. Edmondson, 113, Idaho, at 237, 743, P. 3D,
• 50:38
  Speaker 1: at 466. Explaining that, in the grand jury context, prejudicial
• 50:44
  Speaker 1: effect comes only in the but-for flavor. Instead, defendant tries
• 50:50
  Speaker 1: to short-circuit his need to show prejudice by claiming where
• 50:54
  Speaker 1: a jury has been misled as to the standard to
• 50:57
  Speaker 1: the defendant's detriment, courts find fundamental error because the error
• 51:02
  Speaker 1: goes to the foundation of the case and takes away
• 51:05
  Speaker 1: an essential right. Defendant fails to point out, however, that
• 51:10
  Speaker 1: every case he cites is referring to the trial jury
• 51:13
  Speaker 1: being improperly instructed on the beyond a reasonable doubt standard
• 51:17
  Speaker 1: of proof. See State v. Erickson, 148 Idaho, 679, 685, 227, P. 3D, 933, 939.
• 51:29
  Speaker 1: Court of Appeals, 2010. And as the court in those
• 51:33
  Speaker 1: cases explained, improperly instructing the jury in that context is
• 51:37
  Speaker 1: a fundamental error because the requirement that the state prove
• 51:42
  Speaker 1: every element of a crime beyond a reasonable doubt is
• 51:45
  Speaker 1: grounded in the constitutional guarantee... of due process. Not even
• 51:50
  Speaker 1: defendant's unorthodox theory goes so far as to suggest the
• 51:54
  Speaker 1: constitutional guarantee of due process compels the use of the
• 51:59
  Speaker 1: beyond reasonable doubt standard of proof in the grand jury. Moreover,
• 52:05
  Speaker 1: defendant's suggestion that some errors in the grand jury process
• 52:09
  Speaker 1: necessitate dismissal of the indictment without any inquiry into the
• 52:14
  Speaker 1: potential prejudicial effect cannot be squared with the Idaho Supreme
• 52:19
  Speaker 1: Court precedent. The high court has held that any error
• 52:23
  Speaker 1: in the grand jury proceeding is harmless once the defendant
• 52:26
  Speaker 1: has been afforded a fair trial. See State v. Huckabay, 168, Idaho, 117, 122,
• 52:30
  Speaker 1: and 23, 480, P. 3D, 771, 776, and 7, 2021. refusing
• 52:44
  Speaker 1: even to consider defendant's claim that the prosecutor erroneously instructed
• 52:48
  Speaker 1: the grand jury because alleged errors in a grand jury
• 52:51
  Speaker 1: proceeding will not be examined on appeal where the defendant
• 52:55
  Speaker 1: has been found guilty following a fair trial. Finally, defendant's
• 53:00
  Speaker 1: explanation of what would happen were this court to set
• 53:04
  Speaker 1: aside the indictment is misleading. He suggests this court could
• 53:09
  Speaker 1: simply treat the indictment as a presentment, but he cites
• 53:12
  Speaker 1: no authority for that proposition that this court can do so.
• 53:17
  Speaker 1: He then suggests that if the court decides to set
• 53:20
  Speaker 1: aside the indictment, it would have to determine whether the
• 53:23
  Speaker 1: matter may be resubmitted to the grand jury. The statutes
• 53:27
  Speaker 1: defendant relies on do not say what defendant claims. Those
• 53:32
  Speaker 1: statutes allow the court to direct that the case can
• 53:35
  Speaker 1: be resubmitted to that same or another grand jury. Idaho
• 53:40
  Speaker 1: Code 19-1603. See Idaho Code 19-1604. If the court directs
• 53:48
  Speaker 1: the case to be resubmitted. But neither statute even purports
• 53:52
  Speaker 1: to empower this court to prohibit the state from presenting
• 53:56
  Speaker 1: the case to a grand jury again. The law expressly
• 54:00
  Speaker 1: states the opposite. An order to set aside an indictment
• 54:04
  Speaker 1: as provided in this chapter is no bar to future
• 54:08
  Speaker 1: prosecution or for the same offense, Idaho Code 19-1605, and
• 54:14
  Speaker 1: whether the state initiates that future prosecution via a complaint
• 54:19
  Speaker 1: or indictment is left exclusively to the prerogative of the
• 54:23
  Speaker 1: prosecuting attorney. See Edmonds 113 Idaho at 232-743-P.2D at 461.
• 54:26
  Speaker 1: Conclusion This court should deny defendant's motion to dismiss the
• 54:37
  Speaker 1: indictment because the standard of proof that applies to grand
• 54:40
  Speaker 1: juries in Idaho is probable cause. This document was signed
• 54:47
  Speaker 1: by William Thompson Jr. and Jeff Nye, and it was
• 54:50
  Speaker 1: dated on the 16th of August of 2023. All right, everybody,
• 54:56
  Speaker 1: that's going to do it for this one. All of
• 54:57
  Speaker 1: the information that goes with this episode can be found
• 55:01
  Speaker 1: in the description box.