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Transcript

Mega Edition: The State Replies To Kohberger's Objection To Authentication Record (10/16/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're going to dive right back into those
• 0:05
  Speaker 1: court documents as we continue to eat this elephant one
• 0:09
  Speaker 1: bite at a time. And this time, we're taking a
• 0:12
  Speaker 1: look at the state's reply to defendant's objection to a
• 0:15
  Speaker 1: motion in limine, self-authentication of records and reliance on IRE
• 0:21
  Speaker 1: 8036 and 8, IRE 9024 and 11, and or IRE 80324.
• 0:29
  Speaker 1: Case number CR1-24-31665. State of Idaho Plaintiff. First Brian C. Kohlberger,
• 0:37
  Speaker 1: the defendant. Comes now. The state of Idaho by and
• 0:41
  Speaker 1: through the Latah County prosecuting attorney and respectfully replies to
• 0:45
  Speaker 1: defendant's objection to state's motion in limine, self-authentication of records
• 0:49
  Speaker 1: filed on March 17th, 2025. The state seeks to rely
• 0:54
  Speaker 1: on self-authenticating evidence as opposed to calling foundational witnesses in
• 0:58
  Speaker 1: order to accomplish the same. It's understood that admission would
• 1:02
  Speaker 1: be contingent upon the state laying a proper foundation with
• 1:06
  Speaker 1: a certificate affidavit under IRE 803.6 or 8 and the
• 1:12
  Speaker 1: requirements of IRE 902.4 or 11. It is also understood
• 1:16
  Speaker 1: that admission would be dependent on the state showing the
• 1:19
  Speaker 1: relevance of the evidence. Replying specifically to defendant's response, number one,
• 1:24
  Speaker 1: 1320 Linda Lane surveillance footage for November 13, 2022. This
• 1:30
  Speaker 1: footage is maintained by a property management company. The state
• 1:33
  Speaker 1: would seek admission of this footage pursuant to IRE 8036.
• 1:37
  Speaker 1: The relevant footage is taken on November 13, 2022, approximately 0.3
• 1:43
  Speaker 1: miles from 1122 King Road, i.e. the crime scene. The
• 1:47
  Speaker 1: state may rely on video footage around 3.29 a.m. showing
• 1:51
  Speaker 1: the suspect vehicle in the area of the crime scene
• 1:54
  Speaker 1: prior to the homicides. the state is in the process
• 1:57
  Speaker 1: of obtaining the Certificate of Authenticity. 2. 1330 Linda Lane
• 2:03
  Speaker 1: Surveillance Footage for November 13, 2022 This footage is maintained
• 2:08
  Speaker 1: by the same property management company as 1320 Linda Lane.
• 2:12
  Speaker 1: The state would seek admission of this footage pursuant to
• 2:15
  Speaker 1: IRE 8036. The relevant footage is taken on November 13, 2022,
• 2:19
  Speaker 1: approximately 0.3 miles from 1122 King Road. The estate may
• 2:25
  Speaker 1: rely on video footage from approximately 3.30 a.m. to 4.07 a.m.
• 2:31
  Speaker 1: Showing the suspect's vehicle traveling around the area of the
• 2:34
  Speaker 1: crime scene prior to the homicides, the state is in
• 2:37
  Speaker 1: the process of obtaining a Certificate of Authenticity. Albertsons Clarkston,
• 2:41
  Speaker 1: WA Video Surveillance and Business Records for November 13, 2022
• 2:47
  Speaker 1: Hard drive provided on 4523 This footage is maintained by
• 2:52
  Speaker 1: Albertsons Grocery in Clarkston, WA. The state would seek admission
• 2:56
  Speaker 1: of the footage pursuant to IRE 8036. Relevant footage is
• 3:01
  Speaker 1: taken on November 13, 2022, and the state may rely
• 3:05
  Speaker 1: on video footage from approximately 1246 p.m. to 106 p.m.
• 3:10
  Speaker 1: to show defendants' vehicle and actions hours after the homicides.
• 3:14
  Speaker 1: The state is in the process of obtaining a Certificate
• 3:17
  Speaker 1: of Authenticity. Amazon Financial and User Records for Brian Kohlberger
• 3:22
  Speaker 1: Regarding purchase history, the state is attaching a Certificate of
• 3:25
  Speaker 1: Authenticity dated 12-30-2022, pursuant to IRE 8036 and 90211. From Amazon.com,
• 3:34
  Speaker 1: states Exhibit S1, this certificate was included with an Excel
• 3:38
  Speaker 1: data file that details Brian Kohlberger's subscription information and order
• 3:43
  Speaker 1: history from January 5, 2022 to December 13, 2022. At trial,
• 3:49
  Speaker 1: the state intends to offer the certificate with the attached
• 3:52
  Speaker 1: records as an exhibit. Defendant was provided this information on
• 3:56
  Speaker 1: May 18, 2023. Regarding click history, the state is attaching
• 4:01
  Speaker 1: a Certificate of Authenticity pursuant to IRE 803B and 90211
• 4:07
  Speaker 1: from Amazon.com, states Exhibit S2. This reference, CRIM 1259132-2023-DS, which
• 4:12
  Speaker 1: is related to the Excel data file, by the same
• 4:18
  Speaker 1: name that details subscription information, click activity, and sign-in history
• 4:23
  Speaker 1: of the defendant as directed in the underlying search warrant.
• 4:27
  Speaker 1: At trial, the state intends to offer the certificate with
• 4:30
  Speaker 1: the attached records as an exhibit. Defendant was provided this
• 4:33
  Speaker 1: information on July 12, 2023. The state incorporates state's response
• 4:39
  Speaker 1: to defendant's motion in limine number 9, excluding Amazon click
• 4:43
  Speaker 1: activity evidence at trial, file March 17, to this reply.
• 4:48
  Speaker 1: AT & T phone records for Brian Kohlberger, MM, and XK.
• 4:54
  Speaker 1: The above AT & T phone records, relied upon by
• 4:57
  Speaker 1: the state's expert witness Nicholas Balance as detailed in his
• 5:00
  Speaker 1: expert disclosures, a certificate of authenticity is attached as Exhibit S3,
• 5:06
  Speaker 1: which was included with the return of Brian Kohlberger's AT
• 5:09
  Speaker 1: & T records from November 12th through November 14th, 2022.
• 5:15
  Speaker 1: This was provided to defendant around April 4th, 2023. A
• 5:19
  Speaker 1: certificate of authenticity is attached as Exhibit 4, which was
• 5:23
  Speaker 1: included with the return for Brian Kohlberger's AT & T
• 5:26
  Speaker 1: records for June 23rd, 2022 to December 23rd, 2022. This
• 5:33
  Speaker 1: was provided to defendant around April 4th, 2023. Call detail
• 5:37
  Speaker 1: records were provided for both MM and XK, discovered on
• 5:41
  Speaker 1: May 16th, 2024 and and again on August 16, 2024.
• 5:46
  Speaker 1: The state intends to obtain a certificate of authenticity from
• 5:49
  Speaker 1: AT & T that comports with IRE 8036 and 90211
• 5:54
  Speaker 1: prior to offering the exhibit. Bagel Shop Video Surveillance Video
• 5:59
  Speaker 1: for November 13, 2022. The footage is maintained by a business.
• 6:04
  Speaker 1: The state would seek admission of this footage pursuant to
• 6:07
  Speaker 1: IRE 8036. The relevant footage is taken and on November 13, 2022,
• 6:13
  Speaker 1: from approximately 1.40 a.m. to 2.40 a.m. This evidence provides
• 6:18
  Speaker 1: a timeline of events for KG and MM before the
• 6:22
  Speaker 1: homicides and corroborates state witness testimony. The state's in the
• 6:26
  Speaker 1: process of obtaining a certificate of authenticity. Bank of America
• 6:30
  Speaker 1: bank records for BF and XK. The state no longer
• 6:34
  Speaker 1: intends to rely on this evidence. If the state does,
• 6:36
  Speaker 1: it will lay the proper foundation at trial. Banner Bank
• 6:40
  Speaker 1: Banking Records for EC. The state no longer intends to
• 6:43
  Speaker 1: rely on this evidence. If the state does, it will
• 6:46
  Speaker 1: lay the proper foundation at trial. Cafe Artista Video Surveillance
• 6:51
  Speaker 1: Video for November 13, 2022. This footage is maintained by
• 6:55
  Speaker 1: a business. The state would seek admission of the footage
• 6:58
  Speaker 1: pursuant to IRE 8036. The relevant footage is taken on
• 7:03
  Speaker 1: November 13, 2022 at approximately 1.40 a.m. The evidence provides
• 7:08
  Speaker 1: a timeline of events for KG and MM before the
• 7:12
  Speaker 1: homicides and corroborates state witness testimony. The state is in
• 7:16
  Speaker 1: the process of obtaining a certificate of authenticity. Corner Club
• 7:21
  Speaker 1: Video Surveillance Video for November 12th and 13th, 2022. This
• 7:26
  Speaker 1: footage is maintained by a business. The state would seek
• 7:29
  Speaker 1: admission of this footage pursuant to IRE 8036. The relevant
• 7:33
  Speaker 1: footage is taken... on November 12, 2022, at approximately 10.20 p.m.,
• 7:39
  Speaker 1: through November 13, 2022, at approximately 1.37 a.m. This evidence
• 7:45
  Speaker 1: provides a timeline of events for KG and MM before
• 7:49
  Speaker 1: the homicides and corroborate state witness testimony. The state is
• 7:53
  Speaker 1: in the process of obtaining a Certificate of Authenticity. Corner
• 7:57
  Speaker 1: Club Financial Transaction Receipts for Sales for November 13, 2022
• 8:03
  Speaker 1: These documents are maintained by a business. The state would
• 8:06
  Speaker 1: seek admission of the documents pursuant to IRE 8036. The
• 8:10
  Speaker 1: relevant portion is attached to state's exhibit S5. This evidence
• 8:15
  Speaker 1: provides a timeline of events for KG and MM before
• 8:18
  Speaker 1: the homicides and corroborates state witness testimony. The state is
• 8:22
  Speaker 1: in the process of obtaining certificates of authenticity. Costco at Clarkston, Washington.
• 8:29
  Speaker 1: Surveillance video for November 13, 2022. This footage is maintained
• 8:33
  Speaker 1: by a business, Costco, Wholesale in Clarkston, Washington. The state
• 8:37
  Speaker 1: would seek admission of this footage pursuant to IRE 8036.
• 8:40
  Speaker 1: The relevant footage is taken on November 13, 2022. The
• 8:46
  Speaker 1: state may rely on video footage from approximately 1159 a.m.
• 8:50
  Speaker 1: to show defendants' vehicle and actions hours after the homicides.
• 8:55
  Speaker 1: A certificate of authenticity is attached as Exhibit S6, which
• 8:59
  Speaker 1: was included in With the return for Costco records, this
• 9:02
  Speaker 1: was provided to defendant on May 18th, 2023. DeSalas student
• 9:08
  Speaker 1: records regarding Brian Kohlberger. These documents are maintained by a
• 9:12
  Speaker 1: private university. The state would seek admission of the document
• 9:16
  Speaker 1: pursuant to IRE 8036 and 90211. The state has attached
• 9:21
  Speaker 1: the relevant evidence which would be introduced to show defendant's
• 9:24
  Speaker 1: knowledge of crime scenes. States exhibit S7. The state is
• 9:28
  Speaker 1: in the process of obtaining a certificate of authenticity. 14.
• 9:33
  Speaker 1: Dick's Sporting Goods records of sale for Brian Kohlberger. These
• 9:37
  Speaker 1: documents are maintained by a business. The state would seek
• 9:40
  Speaker 1: admission of the documents pursuant to IRE 803-6. The relevance
• 9:45
  Speaker 1: of this information is that Brian Kohlberger purchased a black
• 9:48
  Speaker 1: balaclava from Dick's Sporting Goods on January 10, 2022. The
• 9:53
  Speaker 1: mask is the same type of mask described by DM
• 9:56
  Speaker 1: that she witnessed worn by a male in the residence
• 9:59
  Speaker 1: on November 13th, 2022. A certificate of authenticity is attached
• 10:05
  Speaker 1: as Exhibit S8, which was included with the return for
• 10:08
  Speaker 1: Dick's records. This was provided to defendant on May 18th, 2023.
• 10:11
  Speaker 1: Discover financial records for KG. The state no longer intends
• 10:18
  Speaker 1: to rely on this evidence. If the state does, it
• 10:20
  Speaker 1: will lay the proper foundation at trial. DoorDash Records for
• 10:25
  Speaker 1: XK and EC These documents are maintained by a business.
• 10:29
  Speaker 1: The state would seek admission of the documents pursuant to
• 10:33
  Speaker 1: IRE 8036. The state may rely on the attached records,
• 10:36
  Speaker 1: State Exhibit S-9, from DoorDash regarding a delivery to 1122
• 10:41
  Speaker 1: King Road on November 13, 2022, at 3.59 a.m. This
• 10:46
  Speaker 1: particular evidence provides a timeline of events for XK before
• 10:50
  Speaker 1: the homicides and corroborates state witness testimony. This was provided
• 10:55
  Speaker 1: to defendant on May 26, 2023. The state is in
• 10:59
  Speaker 1: the process of obtaining a certificate of authenticity. 17. Early
• 11:04
  Speaker 1: Warning Records The state no longer intends to rely on
• 11:08
  Speaker 1: this evidence. If the state does, it will lay the
• 11:10
  Speaker 1: proper foundation at trial. 18. Elon Financial Records for KG
• 11:16
  Speaker 1: The state no longer intends to rely on this evidence.
• 11:19
  Speaker 1: If the state does, it will lay the proper foundation
• 11:21
  Speaker 1: at trial. E & S Services, 1300 Johnson Avenue, Pullman, Washington.
• 11:27
  Speaker 1: Surveillance video for November 13, 2022, hard drive provided on 4523.
• 11:34
  Speaker 1: This footage is maintained by a business. The state would
• 11:37
  Speaker 1: seek admission of the documents pursuant to IRE 8036. The
• 11:40
  Speaker 1: state may rely on video footage from the November 13, 2022,
• 11:46
  Speaker 1: at around 5.26 a.m., showing the suspect vehicle after the
• 11:49
  Speaker 1: homicides in Pullman, Washington. A certificate of authenticity is attached
• 11:55
  Speaker 1: as Exhibit S-10, which was obtained prior to the grand jury.
• 11:58
  Speaker 1: This was provided to defendant with grand jury materials in
• 12:01
  Speaker 1: July of 2023. 20. Farmer's Insurance Surveillance Video for November 13, 2022.
• 12:07
  Speaker 1: Hard drive provided on 4-5-23. The state no longer intends
• 12:09
  Speaker 1: to rely on this evidence. If the state does, it
• 12:16
  Speaker 1: will lay the proper foundation at trial. All right, we're
• 12:20
  Speaker 1: going to wrap up right here. And in the next episode,
• 12:22
  Speaker 1: we're going to pick up where we left off. And
• 12:24
  Speaker 1: that's with Floyd's Cannabis Company surveillance video for November 13th, 2022.
• 12:29
  Speaker 1: All of the information that goes with this episode can
• 12:32
  Speaker 1: be found in the description box. What's up, everyone? And
• 12:36
  Speaker 1: welcome back to the program. In this episode, we're picking
• 12:39
  Speaker 1: up where we left off with the state's reply to
• 12:41
  Speaker 1: defendant's objection to motion in limineh Self-Authentication of Records in
• 12:46
  Speaker 1: Reliance on IRE 8036 and 8, IRE 902 4 and 11,
• 12:52
  Speaker 1: and or IRE 803 24. 21. Floyd's Cannabis Company Surveillance
• 12:59
  Speaker 1: Video for November 13, 2022. This footage is maintained by
• 13:04
  Speaker 1: a business. The state would seek admission of the video
• 13:06
  Speaker 1: footage pursuant to IRE 8036 The state may rely on
• 13:11
  Speaker 1: video footage from November 13, 2022, at around 3.02 a.m.,
• 13:16
  Speaker 1: showing a white sedan on State Route 270 between Pullman,
• 13:20
  Speaker 1: Washington and Moscow, Idaho. Approximately one hour before the homicides,
• 13:24
  Speaker 1: the state is in the process of obtaining a Certificate
• 13:27
  Speaker 1: of Authenticity. FlorisDaxCrypto.com Financial Records for Brian Kohlberger These records
• 13:34
  Speaker 1: are maintained by a business. The state would seek admission
• 13:37
  Speaker 1: of the records pursuant to IRE 8036. The state has
• 13:41
  Speaker 1: provided information related to the relevancy of this item in
• 13:46
  Speaker 1: its expert disclosure for FOA Michael Douglas. FOA Douglas is
• 13:50
  Speaker 1: a factual witness regarding this account. The state is in
• 13:53
  Speaker 1: the process of obtaining a Certificate of Authenticity. Grub Truck
• 13:57
  Speaker 1: Video Surveillance Video for November 13, 2022. This footage is
• 14:02
  Speaker 1: maintained by a business. The state would seek admission of
• 14:05
  Speaker 1: the footage pursuant to IRE 8036 The relevant footage is
• 14:09
  Speaker 1: taken on November 13, 2022 from approximately 1.43 a.m. to 1.53 a.m. PST.
• 14:16
  Speaker 1: This evidence provides a timeline of events for KG and
• 14:20
  Speaker 1: MM before the homicides and corroborate state witness testimony. The
• 14:24
  Speaker 1: state is in the process of obtaining a certificate of authenticity.
• 14:29
  Speaker 1: Harbor Freight Business and Surveillance Records The state no longer
• 14:33
  Speaker 1: intends to rely on this evidence. If the state does,
• 14:36
  Speaker 1: it will lay the proper foundation at trial. Idaho Credit
• 14:39
  Speaker 1: Union Bank records for MM. The state no longer intends
• 14:44
  Speaker 1: to rely on this evidence. If the state does, it
• 14:46
  Speaker 1: will lay the proper foundation at trial. Indian Mountain Lake
• 14:50
  Speaker 1: Surveillance and Records. The state no longer intends to rely
• 14:53
  Speaker 1: on this evidence. If the state does, it will lay
• 14:56
  Speaker 1: the proper foundation at trial. Joanne Fabrics Financial Records. The
• 15:01
  Speaker 1: state no longer intends to rely on this evidence. If
• 15:04
  Speaker 1: the state does, it will lay the proper foundation at trial.
• 15:07
  Speaker 1: Latah County Sheriff's Office Deputy Darren Duke body camera video
• 15:12
  Speaker 1: on August 21, 2022. This is a public record pursuant
• 15:16
  Speaker 1: to Rule 803-6 and 8. The state is in the
• 15:19
  Speaker 1: process of obtaining a Certificate of Authenticity. Latah County Sheriff's
• 15:24
  Speaker 1: Office citation issued on August 21, 2022, Bates number 13012
• 15:27
  Speaker 1: through 13013. This is a public record pursuant to Rule
• 15:36
  Speaker 1: 8036 and 8. The state is in the process of
• 15:39
  Speaker 1: obtaining a Certificate of Authenticity. Marshall's Financial Records for Brian Kohlberger.
• 15:46
  Speaker 1: The state no longer intends to rely on this evidence.
• 15:48
  Speaker 1: If the state does, it will lay the proper foundation
• 15:51
  Speaker 1: at trial. National Weather Service Records for November 12th and 13th, 2022.
• 15:55
  Speaker 1: Bates Pages 15720-15738. This is a public record under Rule 8038.
• 16:06
  Speaker 1: Certificates of authenticity for this item are attached as Exhibit S11.
• 16:11
  Speaker 1: This was provided to defendant with the corresponding records on
• 16:14
  Speaker 1: March 20, 2025. Numerica Bank Records for KC The state
• 16:20
  Speaker 1: no longer intends to rely on this evidence. If the
• 16:22
  Speaker 1: state does, it will lay the proper foundation at trial.
• 16:26
  Speaker 1: PayPal Venmo Financial Records These documents are maintained by a business.
• 16:31
  Speaker 1: The state would seek admission of the financial records of
• 16:33
  Speaker 1: defendant pursuant to IRE 8036. The state is in the
• 16:38
  Speaker 1: process of obtaining a Certificate of Authenticity. PNC Bank Records
• 16:43
  Speaker 1: for Brian Kohlberger. These documents are maintained by a business.
• 16:47
  Speaker 1: The state would seek admission of the financial records of
• 16:50
  Speaker 1: defendant pursuant to IRE 8036. The state has provided specifics
• 16:55
  Speaker 1: regarding the relevance of this information. In the state's expert
• 16:59
  Speaker 1: disclosure for FOA Michael Douglas with attached expert report. Certificates
• 17:05
  Speaker 1: of authenticity for this item are attached as exhibits S-12.
• 17:08
  Speaker 1: This was provided to defendant with the corresponding records on
• 17:13
  Speaker 1: February 12, 2024. Pantel data records. The state no longer
• 17:18
  Speaker 1: intends to rely on this evidence. If the state does,
• 17:21
  Speaker 1: it will lay the proper foundation at trial. Pennsylvania State
• 17:25
  Speaker 1: Employees Credit Union for Brian Kohlberger. These documents are maintained
• 17:30
  Speaker 1: by a business. The state would seek admission of these
• 17:33
  Speaker 1: financial records of defendant pursuant to IRE 8036. The state
• 17:38
  Speaker 1: is provided for specifics regarding the relevance of this information
• 17:42
  Speaker 1: in the state's expert disclosure for FOA Michael Douglas with
• 17:46
  Speaker 1: attached expert report. The state is in the process of
• 17:49
  Speaker 1: obtaining a certificate of authenticity. PECO financial records for KG.
• 17:55
  Speaker 1: The state no longer intends to rely on this evidence.
• 17:58
  Speaker 1: If the state does, it will lay the proper foundation
• 18:00
  Speaker 1: at trial. Rite Aid Financial Records. The state no longer
• 18:05
  Speaker 1: intends to rely on this evidence. If the state does,
• 18:08
  Speaker 1: it will lay the proper foundation at trial. Ross Financial Records.
• 18:12
  Speaker 1: The state no longer intends to rely on this evidence.
• 18:15
  Speaker 1: If the state does, it will lay the proper foundation
• 18:18
  Speaker 1: at trial. Sunset Mart, 1311 South Main Street. Moscow, Idaho
• 18:24
  Speaker 1: Surveillance Video for November 13, 2022. This footage is maintained
• 18:28
  Speaker 1: by a business. The state would seek admission of the
• 18:31
  Speaker 1: documents pursuant to IRE 8036. The relevant footage is taken
• 18:36
  Speaker 1: on November 13, 2022, approximately a half mile from 1122
• 18:41
  Speaker 1: King Road, i.e. the crime scene. The state may rely
• 18:44
  Speaker 1: on video footage around 3.28 a.m. showing the suspect vehicle,
• 18:49
  Speaker 1: the area of the crime scene prior to the homicides.
• 18:52
  Speaker 1: The state is in the process of obtaining a Certificate
• 18:54
  Speaker 1: of Authenticity. Sunset Mart 1455 Southeast Bishop Boulevard, Pullman, Washington.
• 19:02
  Speaker 1: Surveillance video for November 13th, 2022. This footage is maintained
• 19:07
  Speaker 1: by a business. The state would seek admission of the
• 19:09
  Speaker 1: documents pursuant to IRE 8036. The state may rely on
• 19:13
  Speaker 1: video footage from November 13th, 2022 at approximately 525 a.m.
• 19:19
  Speaker 1: and 526 a.m. showing the suspect vehicle in Pullman after
• 19:23
  Speaker 1: the homicides. A certificate of authenticity is attached as Exhibit S13,
• 19:29
  Speaker 1: which was obtained prior to grand jury. This was provided
• 19:32
  Speaker 1: to defendant with grand jury materials in July of 2023.
• 19:36
  Speaker 1: Target financial records. The state no longer intends to rely
• 19:40
  Speaker 1: on this evidence. If the state does, it will lay
• 19:42
  Speaker 1: the proper foundation at trial. TikTok user records for XK.
• 19:48
  Speaker 1: These records are maintained by a business. The state would
• 19:51
  Speaker 1: seek admission of the records pursuant to IRE 8036. The
• 19:55
  Speaker 1: records would show XK on the TikTok application on November 13th,
• 20:00
  Speaker 1: 2022 at approximately 316 a.m. PST. The state is in
• 20:04
  Speaker 1: the process of obtaining a certificate of authenticity. TJX Financial
• 20:10
  Speaker 1: records for DM. The state no longer intends to rely
• 20:12
  Speaker 1: on this evidence. If the state does, it will lay
• 20:15
  Speaker 1: the proper foundation at trial. T-Mobile phone records for KG
• 20:19
  Speaker 1: and DM. These records are maintained by a business. The
• 20:23
  Speaker 1: state would seek admission of the records pursuant to IRE 8036. Specifically,
• 20:28
  Speaker 1: the state would seek to show the phone records for
• 20:30
  Speaker 1: KG and DM on November 13, 2022. This evidence provides
• 20:35
  Speaker 1: a timeline of events for KG and DM. before the
• 20:38
  Speaker 1: homicides and corroborate state witness testimony. A certificate of authenticity
• 20:43
  Speaker 1: for these records is attached as Exhibit S-14. This was
• 20:47
  Speaker 1: provided to defendant with the corresponding records around April 4, 2023.
• 20:53
  Speaker 1: Umpqua Bank Records for DM The state no longer intends
• 20:57
  Speaker 1: to rely on this evidence. If the state does, it
• 21:00
  Speaker 1: will lay the proper foundation at trial. Under Armour Transaction
• 21:04
  Speaker 1: Records for Brian Kohlberger The state no longer intends to
• 21:07
  Speaker 1: rely on this evidence. If the state does, it will
• 21:10
  Speaker 1: lay the proper foundation at trial. U.S. Chef Store Clarkston,
• 21:14
  Speaker 1: Washington Video Surveillance for November 13, 2022 This footage is
• 21:20
  Speaker 1: maintained by a business, U.S. Chef Store in Clarkston, Washington.
• 21:23
  Speaker 1: The state would seek admission of this footage pursuant to
• 21:27
  Speaker 1: IRE 8036. The relevant footage is taken on November 13, 2022.
• 21:32
  Speaker 1: The state may rely on video footage from approximately 1242
• 21:36
  Speaker 1: and 1244 p.m. to show defendant's vehicle and actions hours
• 21:40
  Speaker 1: after the homicides. The state is in the process of
• 21:43
  Speaker 1: obtaining a certificate of authenticity. Defendant does not have a
• 21:47
  Speaker 1: 49 listed in his response. The state is keeping the
• 21:50
  Speaker 1: same numbers as defendant's response for consistency. Alta Financial Records.
• 21:57
  Speaker 1: The state no longer intends to rely on this evidence.
• 21:59
  Speaker 1: If the state does, it will lay the proper foundation
• 22:02
  Speaker 1: at trial. Verizon Phone Records for EC, BF, and JD.
• 22:07
  Speaker 1: These records are maintained by a business. The state would
• 22:10
  Speaker 1: seek admission of the records pursuant to IRE 8036. Specifically,
• 22:14
  Speaker 1: the state would seek to show the phone records for EC, BJ,
• 22:18
  Speaker 1: and JD on November 13, 2022. This evidence provides a
• 22:20
  Speaker 1: timeline for of events before the homicide and corroborate state
• 22:26
  Speaker 1: witness testimony. A certificate of authenticity with a record of
• 22:31
  Speaker 1: the covering numbers is attached as Exhibit S-15, which was
• 22:35
  Speaker 1: included with the return attached to the Verizon call detail
• 22:39
  Speaker 1: records for EC, BF, and JD. This was provided to
• 22:43
  Speaker 1: defendant around April 4, 2023. Walmart Surveillance and Financial Transaction
• 22:49
  Speaker 1: Records for Brian Koberger The state no longer intends to
• 22:52
  Speaker 1: rely on this evidence. If the state does, it will
• 22:55
  Speaker 1: lay the proper foundation at trial. Washington Department of Motor
• 22:58
  Speaker 1: Vehicles surveillance video for November 18, 2022. This surveillance footage
• 23:04
  Speaker 1: is maintained by a business. The state would seek admission
• 23:06
  Speaker 1: of the records pursuant to IRE 8036. The state is
• 23:10
  Speaker 1: in the process of obtaining a certificate of authenticity. Washington
• 23:15
  Speaker 1: Department of Motor Vehicles registration documents for Brian Kohlberger. These
• 23:19
  Speaker 1: records are maintained by a business. The state would seek
• 23:22
  Speaker 1: admission of the records pursuant to IRE 8036. A Certificate
• 23:28
  Speaker 1: of Authenticity is attached as S-16 for Brian Kohlberger's vehicle registration.
• 23:32
  Speaker 1: This was provided to defendant on April 6, 2023. A
• 23:37
  Speaker 1: Certificate of Authenticity is attached as S-17 for Brian Kohlberger's
• 23:41
  Speaker 1: license records. This was provided to defendant around July 23
• 23:46
  Speaker 1: as part of the grand jury record. Washington Trust Bank
• 23:49
  Speaker 1: Records and Images for Brian Kohlberger. These documents are maintained
• 23:53
  Speaker 1: by a business. The state would seek admission of the
• 23:55
  Speaker 1: financial records of defendant pursuant to IRE 8036. The state
• 24:00
  Speaker 1: has provided specifics regarding the relevance of this information in
• 24:04
  Speaker 1: the state's expert disclosure for FOA Michael Douglas. Certificates of
• 24:09
  Speaker 1: authenticity are attached as S-18, which are included with the
• 24:13
  Speaker 1: records and images. This was provided to defendant on May 18, 2023.
• 24:19
  Speaker 1: Wells Fargo Bank Records for MH. The state no longer
• 24:22
  Speaker 1: intends to rely on this evidence. If the state does,
• 24:25
  Speaker 1: it will lay proper foundation at trial. Winco Financial Records
• 24:29
  Speaker 1: for Brian Kohlberger. The state no longer intends to rely
• 24:33
  Speaker 1: on this evidence. If the state does, it will lay
• 24:35
  Speaker 1: the proper foundation at trial. Winco Financial Records and Video
• 24:39
  Speaker 1: Surveillance for BFDM, KG, MM, and or XK. The state
• 24:44
  Speaker 1: no longer... intends to rely on this evidence. If the
• 24:47
  Speaker 1: state does, it will lay the proper foundation at trial.
• 24:50
  Speaker 1: Washington State University video surveillance for November 13th, 2022. WSU
• 24:56
  Speaker 1: is a public institution. The state would seek admission of
• 25:00
  Speaker 1: the documents pursuant to IRE 803-6 and 8. The state
• 25:04
  Speaker 1: may rely on video footage from November 13th, 2022 from
• 25:08
  Speaker 1: approximately 528 a.m. to 530 a.m., showing the suspect vehicle
• 25:13
  Speaker 1: after the homicides in Pullman. The state is in the
• 25:15
  Speaker 1: process of obtaining a Certificate of Authenticity. WSU Parking Records
• 25:23
  Speaker 1: WSU is a public institution. The state would seek the
• 25:26
  Speaker 1: admission of records pursuant to IRE 803.6 and 8. The
• 25:30
  Speaker 1: state may introduce these records to show Brian Kohlberger's Hyundai
• 25:33
  Speaker 1: Elantra was registered with WSU's system and had an active
• 25:37
  Speaker 1: permit at WSU. The state is in the process of
• 25:41
  Speaker 1: obtaining a Certificate of Authenticity. The state's reliance on the
• 25:45
  Speaker 1: Idaho Rules of Evidence for self-authentication of certain business or
• 25:50
  Speaker 1: public records does not violate defendants' due process rights. The
• 25:54
  Speaker 1: state is providing notice of the procedure the state will
• 25:57
  Speaker 1: rely on for certain records. The state intends to lay
• 26:00
  Speaker 1: the proper foundation through self-authentication or witness testimony and relevance
• 26:05
  Speaker 1: prior to admission for all evidence the state will introduce
• 26:08
  Speaker 1: at trial. This document was dated March 24, 2025. And
• 26:14
  Speaker 1: it was signed by Ashley Jennings. All of the information
• 26:17
  Speaker 1: that goes with this episode can be found in the
• 26:20
  Speaker 1: description box. What's up everyone and welcome back to the program.
• 26:25
  Speaker 1: On this episode, we're going to take a look at
• 26:28
  Speaker 1: another court filing. This time, the state's response to a
• 26:32
  Speaker 1: request for discovery. So, let's get to it. Case number,
• 26:38
  Speaker 1: CR 29-22-2805. The state's response to request for discovery. State
• 26:47
  Speaker 1: of Idaho plaintiff versus Brian Christopher Koberger, the defendant to
• 26:54
  Speaker 1: the defendant, Brian Christopher Koberger and counsel and Taylor comes
• 26:58
  Speaker 1: now the state in the above titled matter and submits
• 27:02
  Speaker 1: the following response to request for discovery. The state has
• 27:08
  Speaker 1: complied and will continue to comply with such requests by
• 27:11
  Speaker 1: providing the following. 1. Any relevant written or recorded statements
• 27:17
  Speaker 1: made by the defendant or copies thereof within the possession, custody,
• 27:22
  Speaker 1: or control of the state, the existence of which is known,
• 27:26
  Speaker 1: of is available to the prosecuting attorney by the exercise
• 27:30
  Speaker 1: of due diligence. 2. and also the substance of any
• 27:34
  Speaker 1: relevant oral statement made by the defendant, whether before or
• 27:38
  Speaker 1: after the arrest to a peace officer, prosecuting attorney, or
• 27:43
  Speaker 1: the prosecuting attorney's agent, have been or will be disclosed
• 27:47
  Speaker 1: or otherwise made available. 2. Any written recorded statements of
• 27:53
  Speaker 1: a co-defendant and the substance of any relevant oral statement
• 27:57
  Speaker 1: made by a co-defendant whether before or after arrest in
• 28:02
  Speaker 1: response to interrogation by any person known by the co-defendant
• 28:07
  Speaker 1: to be a peace officer or agent of the prosecuting attorney,
• 28:11
  Speaker 1: have been or will be disclosed or otherwise made available.
• 28:16
  Speaker 1: Number three. Defendant's prior criminal record, if any, has been
• 28:21
  Speaker 1: and will be disclosed or otherwise made available. Number four.
• 28:27
  Speaker 1: any books, papers, documents, photographs, tangible objects, buildings or places,
• 28:33
  Speaker 1: or copies or portions thereof, which are in possession, custody,
• 28:38
  Speaker 1: or control of the prosecuting attorney and which are material
• 28:42
  Speaker 1: to the preparation of the defense or intended for use
• 28:46
  Speaker 1: by the prosecutor as evidence at trial or obtained from
• 28:51
  Speaker 1: a belonging to the defendant having been or will be
• 28:54
  Speaker 1: disclosed or otherwise made available. In addition, Deputies and officers
• 29:00
  Speaker 1: from the Latah County Sheriff's Office, Idaho State Police, Moscow
• 29:04
  Speaker 1: Police Department, Idaho Fish and Game, and other law enforcement
• 29:08
  Speaker 1: agencies may record their law enforcement contacts via an audio
• 29:13
  Speaker 1: recorder or audio-video monitor. Any video or audio recordings related
• 29:19
  Speaker 1: to this matter are available for review and duplication on request,
• 29:24
  Speaker 1: subject to the provisions of I.C.R.16 Pursuant to said subsection,
• 29:32
  Speaker 1: and except as otherwise specified herein, any such digital media
• 29:37
  Speaker 1: is unredacted and may contain protective information, thus further distribution
• 29:43
  Speaker 1: is restricted by ICR 16B9A unless the State provides express
• 29:49
  Speaker 1: written consent or by the order of the Court. 5.
• 29:55
  Speaker 1: Any results or reports of physical or mental examinations End
• 29:59
  Speaker 1: of scientific tests or experiments made in connection with a
• 30:04
  Speaker 1: particular case or copies thereof within the possession, custody, or
• 30:10
  Speaker 1: control of the prosecuting attorney, the existence of which is
• 30:13
  Speaker 1: known or is available to the prosecuting attorney by the
• 30:17
  Speaker 1: exercise of due diligence, have been or will be disclosed
• 30:21
  Speaker 1: or otherwise made available. Number 6. Written list of the
• 30:27
  Speaker 1: names and addresses of of all persons having knowledge of
• 30:30
  Speaker 1: relevant facts who may be called by the state as
• 30:33
  Speaker 1: witnesses at the trial has been or will be provided
• 30:37
  Speaker 1: separately in accordance with I.C.R.16B6. Any record of prior felony
• 30:45
  Speaker 1: convictions of any such persons which is within the knowledge
• 30:49
  Speaker 1: of the prosecuting attorney and all statements made by the
• 30:52
  Speaker 1: prosecution witnesses or prospective prosecution witnesses to the prosecuting attorney
• 30:58
  Speaker 1: or the prosecuting attorney's agents, or to any official involved
• 31:04
  Speaker 1: in the investigatory process of the case, have been or
• 31:08
  Speaker 1: will be disclosed or otherwise made available. Consistent with Ramirez v.
• 31:13
  Speaker 1: State 119 Idaho 1037 and Idaho Public Safety and Security
• 31:20
  Speaker 1: Information ILETS restrictions on dissemination of criminal history information, the
• 31:26
  Speaker 1: state generally does not seek NCIC reports or Spillman reports
• 31:32
  Speaker 1: of witnesses. Additionally, the state may call, as witnesses, anyone
• 31:37
  Speaker 1: otherwise identified or referred to in reports, statements, or other
• 31:42
  Speaker 1: documents referred to in this response. 7. Any written summary
• 31:48
  Speaker 1: or report of any testimony or that the state intends
• 31:51
  Speaker 1: to introduce pursuant to Rule 702, 703, or 705 of
• 31:58
  Speaker 1: the Idaho Rules of Evidence at trial or hearing have
• 32:01
  Speaker 1: been or will be disclosed or otherwise made available. This
• 32:07
  Speaker 1: response does not necessarily include disclosure of expert witnesses, their opinions,
• 32:12
  Speaker 1: the fact and data for those opinions, or witnesses' qualification,
• 32:17
  Speaker 1: intended only to rebut evidence or theories That have not
• 32:21
  Speaker 1: been disclosed under this rule prior to trial. Number eight.
• 32:26
  Speaker 1: Any reports and memoranda in possession of the prosecuting attorney.
• 32:31
  Speaker 1: Which were made by any police officer or investigator. In
• 32:35
  Speaker 1: connection with this investigation or prosecution of this case. Have
• 32:40
  Speaker 1: been or will be disclosed or otherwise made available. Number nine.
• 32:48
  Speaker 1: All material or information within the prosecuting attorney's possession or
• 32:52
  Speaker 1: control which tends to negate the guilt of the accused
• 32:56
  Speaker 1: as to the offense charged or which would tend to
• 33:00
  Speaker 1: reduce the punishment therefore have been or will be disclosed
• 33:04
  Speaker 1: or otherwise made available. In addition, with regard to material
• 33:09
  Speaker 1: or information which may be exculpatory as used or interpreted,
• 33:14
  Speaker 1: the state requests that the defendant inform the state in
• 33:17
  Speaker 1: writing of the defense which will be asserted in this case,
• 33:21
  Speaker 1: so counsel for the state can determine if any additional
• 33:24
  Speaker 1: material or information may be material to the defense and
• 33:29
  Speaker 1: thus fulfill its duty under I.C.R. 16A and Brady v.
• 33:31
  Speaker 1: Maryland 373 U.S. 83 1963. Number 10. To the extent
• 33:33
  Speaker 1: that the information exists regarding an informant, who is not
• 33:47
  Speaker 1: going to be produced as a witness, including recordings or
• 33:50
  Speaker 1: written statements of an informant, or that identify an informant,
• 33:55
  Speaker 1: such information is not subject to disclosure and the state
• 33:59
  Speaker 1: asserts informant privilege under ICR 16 G. 2 and prays for
• 34:05
  Speaker 1: appropriate protective orders pursuant to ICR 16.1 as necessary. 11.
• 34:14
  Speaker 1: The state objects to requests by the defendant for anything
• 34:17
  Speaker 1: not otherwise addressed above on the grounds that such requests
• 34:21
  Speaker 1: are outside the scope of I.C.R. 16 and or are
• 34:26
  Speaker 1: not subject to disclose under I.C.R. 16 G work product
• 34:32
  Speaker 1: and informants. Number 12. Wherever this response indicates that certain
• 34:38
  Speaker 1: evidence or materials have been or will be disclosed or
• 34:42
  Speaker 1: otherwise made available, such indication should not be construed as
• 34:46
  Speaker 1: confirmation that such evidence or materials exist, but simply as
• 34:51
  Speaker 1: an indication that if such evidence or materials exist, they
• 34:55
  Speaker 1: have been or will be disclosed or made available to
• 34:59
  Speaker 1: the defendant. Furthermore, any items which are listed in Exhibit
• 35:03
  Speaker 1: A but are not specifically provided or which are referred
• 35:07
  Speaker 1: to in documents which are listed in Exhibit A are
• 35:10
  Speaker 1: available for inspection upon appointment with the prosecuting attorney's office. Additionally,
• 35:16
  Speaker 1: all property forms, chain of custody documents, and similar items
• 35:20
  Speaker 1: are likewise available for inspection on appointment, and hereby deemed
• 35:25
  Speaker 1: to be part of Exhibit A for purposes of this response.
• 35:30
  Speaker 1: Number 13. Pursuant to ICR 16-J, If the state subsequently
• 35:36
  Speaker 1: discovers additional evidence or evidence of additional witnesses or decides
• 35:41
  Speaker 1: to use additional evidence or witnesses, the state will promptly
• 35:45
  Speaker 1: notify the defendant and the court. This was signed by
• 35:50
  Speaker 1: William W. Thompson. So with that entry, we should be
• 35:54
  Speaker 1: completely up to date now on all the court filings
• 35:57
  Speaker 1: that have been made available to the public. However, they
• 36:01
  Speaker 1: do update this every Friday or they say they do.
• 36:04
  Speaker 1: So if more are updated and more become available, I'll
• 36:08
  Speaker 1: have those added to the catalog over the weekend. All
• 36:12
  Speaker 1: of the information that goes along with this episode can
• 36:15
  Speaker 1: be found in the description box. Welcome back to the program.
• 36:20
  Speaker 1: In this episode, we're going to dive back into those
• 36:22
  Speaker 1: court documents and we're going to take a look at
• 36:25
  Speaker 1: the objection to the state's motion for a protective order.
• 36:30
  Speaker 1: Case number CR29-22-2805. State of Idaho plaintiff versus Brian C. Koberger,
• 36:39
  Speaker 1: the defendant. Comes now. Brian C. Koberger, by and through
• 36:43
  Speaker 1: his attorney, J. Weston Lodgson, Chief Deputy Litigation, and hereby
• 36:48
  Speaker 1: objects to the state's motion for a protective order filed
• 36:52
  Speaker 1: June 16, 2023, on the grounds that the material that
• 36:56
  Speaker 1: the state seeks to hide is discoverable and and must
• 37:00
  Speaker 1: be provided to Mr. Kohlberger. Factual Background On November 13, 2022,
• 37:07
  Speaker 1: law enforcement, responding to a 911 call, found Madison Mogan,
• 37:12
  Speaker 1: Kaylee Gonsalves, Zanna Kernodle, and Ethan Chapin deceased. Law enforcement
• 37:18
  Speaker 1: later found a K-bar knife sheath placed next to Ms.
• 37:21
  Speaker 1: Mogan on her bed. The sheath was placed button-side down
• 37:25
  Speaker 1: and partially under Ms. Mogan and the comforter. On November 20th, 2022,
• 37:31
  Speaker 1: Idaho State Police Lab in Meridian, Idaho, located DNA on
• 37:36
  Speaker 1: the button of the sheath and performed STR analysis that
• 37:40
  Speaker 1: led nowhere when ran through CODIS, Combined DNA Index System,
• 37:45
  Speaker 1: other than to show the provider was a male. By
• 37:49
  Speaker 1: December 17, 2022, lab analysts were aware of two additional
• 37:54
  Speaker 1: male DNAs within the house where the deceased were located
• 37:58
  Speaker 1: and another unknown male DNA on a glove found outside
• 38:01
  Speaker 1: the residence on November 20, 2022. To this date, the
• 38:06
  Speaker 1: defense is unaware of what sort of testing, if any,
• 38:10
  Speaker 1: was conducted on these samples other than STR DNA profiles. Further,
• 38:15
  Speaker 1: These three separate and distinct male DNA profiles were not
• 38:19
  Speaker 1: identified through CODIS, leading to the conclusion that the profiles
• 38:24
  Speaker 1: do not belong to Mr. Koberger. That's weak as hell. Sorry,
• 38:28
  Speaker 1: nice try, but this is a college house. Of course
• 38:30
  Speaker 1: there's going to be profiles of other males in the house.
• 38:34
  Speaker 1: How many of those profiles were found on the sheath
• 38:36
  Speaker 1: of the knife? While this was ongoing, police were investigating
• 38:40
  Speaker 1: many possible various suspects. Many of them provided DNA. At
• 38:45
  Speaker 1: least one had his DNA surreptitiously taken from a discarded cigarette.
• 38:50
  Speaker 1: Many also had their phones taken and downloaded. The area
• 38:54
  Speaker 1: of the investigation had to do with a white sedan
• 38:57
  Speaker 1: seen on camera located at 1122 King Road, first glimpsed
• 39:02
  Speaker 1: by officers on November 18, 2022. By November 25th, 2022,
• 39:09
  Speaker 1: police believed the car to be a white Elantra and
• 39:12
  Speaker 1: asked law enforcement to be on the lookout for one.
• 39:15
  Speaker 1: Precisely how the police came to believe the car was
• 39:18
  Speaker 1: an Elantra is still unknown. A report from an analyst
• 39:22
  Speaker 1: for the FBI dated March 21st, 2023, shows that analysts
• 39:28
  Speaker 1: heavily relying on a video of a car heading in
• 39:31
  Speaker 1: the wrong direction at the wrong time on Ridge Road.
• 39:35
  Speaker 1: The state's latest filing admits that somewhere within all of
• 39:38
  Speaker 1: this they engaged in investigative genetic genealogy using the DNA
• 39:44
  Speaker 1: taken from the button on the sheath and now claims
• 39:47
  Speaker 1: that it was due to this use of the technique
• 39:50
  Speaker 1: that it tipped local law enforcement to investigate Mr. Kohlberger.
• 39:55
  Speaker 1: It remains unclear what the police first relied on in
• 39:58
  Speaker 1: focusing their investigation on Mr. Kohlberger. Really? Bushy eyebrows? Elantra?
• 40:04
  Speaker 1: Doesn't ring a bell? No matter what came first, the
• 40:08
  Speaker 1: car or the genetic genealogy, the investigation has provided precious little.
• 40:13
  Speaker 1: There is no connection between Mr. Kohlberger and the victims.
• 40:16
  Speaker 1: There is no explanation for the total lack of DNA
• 40:19
  Speaker 1: evidence from the victims in Mr. Kohlberger's apartment, office, home,
• 40:24
  Speaker 1: or vehicle. In essence, though the lack of disclosure and
• 40:27
  Speaker 1: their motion to protect the genetic genealogy investigation, the state
• 40:32
  Speaker 1: is hiding its entire case. Coming from Brian Kohlberger's team,
• 40:36
  Speaker 1: that's pretty funny, considering they wanted all of this to
• 40:39
  Speaker 1: be adjudicated in the darkness of a courtroom. No cameras,
• 40:43
  Speaker 1: limited coverage, you know, the whole thing. But now, all
• 40:46
  Speaker 1: of a sudden, the state is hiding its entire case? Yeah, okay, sure.
• 40:50
  Speaker 1: The argument. The state apparently thinks that they need not
• 40:54
  Speaker 1: explain how they came to think that it was Mr.
• 40:56
  Speaker 1: Kohlberger's DNA on the sheath. Presumably, the defense is expected
• 41:01
  Speaker 1: to accept, at face value, that the sheath had touched
• 41:04
  Speaker 1: DNA just waiting for testing by all of the FBI's
• 41:08
  Speaker 1: myriad of resources. Additionally, the defense is to guess whether
• 41:13
  Speaker 1: the state focused its investigation on Mr. Kohlberger via a
• 41:17
  Speaker 1: bizarrely complex DNA tree experiment or through the faulty identification
• 41:22
  Speaker 1: of the vehicle involved in this case. Perhaps unsurprisingly, Mr.
• 41:27
  Speaker 1: Kohlberger does not accept that his defense does not need
• 41:30
  Speaker 1: this information. It rather obviously falls within the ambit of
• 41:34
  Speaker 1: Rule 16b, 4, and 5, a fact the state's briefing
• 41:40
  Speaker 1: makes clear in its kitchen sink approach to their briefing.
• 41:43
  Speaker 1: The state begins their argument claiming Rule 16 has no
• 41:47
  Speaker 1: interest in IgG testing and then ends their argument claiming
• 41:51
  Speaker 1: that somehow people will stop sharing their genetics if they
• 41:54
  Speaker 1: were to realize the government is watching. Both arguments must fail.
• 41:59
  Speaker 1: To begin with, The state apparently only wants to prevent Mr.
• 42:02
  Speaker 1: Koberger from seeing how the IgG profile was created and
• 42:07
  Speaker 1: how many other people the FBI chose to ignore during
• 42:10
  Speaker 1: their investigation. In essence, the state argues that if the
• 42:14
  Speaker 1: later STR testing is accurate, then there is no reason
• 42:17
  Speaker 1: to concern ourselves with how the state came to investigate Mr. Koberger.
• 42:22
  Speaker 1: State's brief at 9. What the state's argument asks this
• 42:26
  Speaker 1: court and Mr. Koberger to assume is that the DNA
• 42:29
  Speaker 1: on the sheath was placed there by Mr. Kohlberger and
• 42:33
  Speaker 1: not someone else during an investigation that spans hundreds of
• 42:36
  Speaker 1: members of law enforcement and apparently at least one lab
• 42:40
  Speaker 1: that the state refuses to name. Perhaps most puzzling is
• 42:45
  Speaker 1: the state's argument that while Rule 16b5 requires them to
• 42:49
  Speaker 1: turn over the results or reports from scientific investigations, it
• 42:53
  Speaker 1: does not require the state to disclose what law enforcement
• 42:57
  Speaker 1: does with the results or reports. States brief at 14.
• 43:01
  Speaker 1: First of all, that sounds like an admission that the
• 43:04
  Speaker 1: information as to how the IGG was carried out should
• 43:08
  Speaker 1: be disclosed. Second, what law enforcement does with the results
• 43:12
  Speaker 1: or reports is covered by Rule 16B6, Statement of Prosecution Witnesses,
• 43:17
  Speaker 1: and 8 Police Reports. Frankly, the fact that members of
• 43:21
  Speaker 1: the FBI are so concerned about permitting Mr. Kohlberger to
• 43:25
  Speaker 1: know what they were up to with what was supposedly
• 43:29
  Speaker 1: his DNA does not give one the impression that there
• 43:32
  Speaker 1: is nothing to see here, as the state seems to imply. Finally,
• 43:36
  Speaker 1: the state's claim that I.C.R.16G2 applies to this matter is
• 43:42
  Speaker 1: quite bizarre. Presumably, the independent company the government relied on
• 43:46
  Speaker 1: was paid for its work and would stand by it
• 43:48
  Speaker 1: in court. The state provides no real argument as to
• 43:52
  Speaker 1: why the company needs to be protected. Mr. Kohlberger is
• 43:56
  Speaker 1: left to suspect they wish to keep their methods from
• 43:59
  Speaker 1: facing questions. To the extent that there is some concern
• 44:02
  Speaker 1: about intellectual property, that can be addressed via a protective
• 44:06
  Speaker 1: order that permits Mr. Kohlberger and his defense team to
• 44:09
  Speaker 1: review their work. New Jersey Superior Court, Division 2021. Second,
• 44:25
  Speaker 1: the state appears to argue that everyone living on Earth
• 44:27
  Speaker 1: that provides genetic information is A, unaware that their DNA
• 44:32
  Speaker 1: could be used by a government somewhere for something, and B,
• 44:36
  Speaker 1: is an informant within the meaning of the term in
• 44:39
  Speaker 1: the rule. The state citations to cases involving actual informants
• 44:44
  Speaker 1: hardly help it make its incredible leap. No court, has
• 44:47
  Speaker 1: ever found the existence of a DNA informant. It would
• 44:51
  Speaker 1: appear that the state is acknowledging that the companies are
• 44:54
  Speaker 1: providing personal information to the state and that those companies
• 44:58
  Speaker 1: and the government would suffer if the public were to
• 45:01
  Speaker 1: realize it. The only two databases that allow access are
• 45:05
  Speaker 1: the ones that already inform their users and those users
• 45:08
  Speaker 1: can opt in to allow law enforcement searches. The statement
• 45:12
  Speaker 1: by the government implies that the databases searched may be
• 45:16
  Speaker 1: the ones that law enforcement is specifically barred from, which
• 45:20
  Speaker 1: explains why they do not want to disclose their methods.
• 45:24
  Speaker 1: If the fact that the government is looking at the
• 45:26
  Speaker 1: genetic information that people are sharing was at all issue here,
• 45:31
  Speaker 1: then the state's very public acknowledgement of such investigations was
• 45:35
  Speaker 1: clearly a big mistake. In any case... It is hard
• 45:39
  Speaker 1: to understand why Mr. Kohlberger should be the one to
• 45:41
  Speaker 1: suffer because these companies and our government choose to either
• 45:45
  Speaker 1: mislead or not educate the public. According to the Pew
• 45:49
  Speaker 1: Research Center in February 2020, 48% of respondents thought it
• 45:55
  Speaker 1: was acceptable to give their data to law enforcement to
• 45:58
  Speaker 1: solve a crime. 33% said no and 18% were unsure.
• 46:03
  Speaker 1: James Halpin, Police Use of Forensic Genealogy Tech, raises privacy concerns.
• 46:08
  Speaker 1: The Citizen's Voice, March 28, 2022. However, 60% thought their
• 46:15
  Speaker 1: genetic information could not be shared with other companies. There
• 46:19
  Speaker 1: is no federal law about the sharing of genetic information,
• 46:22
  Speaker 1: but multiple states have begun regulating police use. Also see
• 46:28
  Speaker 1: Lindsey Van Ness DNA Databases are a boon to police
• 46:32
  Speaker 1: but menace to privacy. Critics say Stateline, February 20th, 2020,
• 46:37
  Speaker 1: available at Stateline.org. Mr. Koberger has reason to be extremely
• 46:42
  Speaker 1: suspicious of the IGG used in this case. Rather than
• 46:46
  Speaker 1: seeing it as some sort of complex tree building that
• 46:50
  Speaker 1: led to him, it appears far more like a lineup
• 46:53
  Speaker 1: where the government was already aware of who they wanted
• 46:56
  Speaker 1: to target. Rather than have an investigation done by someone
• 47:00
  Speaker 1: blind to the fact, the FBI chose to do it themselves.
• 47:04
  Speaker 1: This is akin to the police pulling in Mr. Kohlberger
• 47:07
  Speaker 1: and five of his cousins off the street and then
• 47:09
  Speaker 1: pointing at him. Okay, that's a bit of hyperbole. The
• 47:13
  Speaker 1: only authority the state has in its favor that is
• 47:16
  Speaker 1: on point is a trial court order from a California
• 47:19
  Speaker 1: case that settled before it could lead anywhere. That decision
• 47:24
  Speaker 1: relied on is People v. Johnson, 139, California, 4th Appeals Court, 1135, 43,
• 47:33
  Speaker 1: California court appeals 2006. The court in Johnson was not
• 47:38
  Speaker 1: deciding whether a defendant had a right to know how
• 47:42
  Speaker 1: he was identified, only that his identification could come in
• 47:46
  Speaker 1: a trial without a mini trial about it. A better
• 47:50
  Speaker 1: case on the issue. is State v. Artiega, 2023, WL 3859-579, A. 3D,
• 48:00
  Speaker 1: New Jersey Superior Court, Appellate Division, 2023. In this case,
• 48:05
  Speaker 1: an appellate court heard similar arguments about the need for
• 48:09
  Speaker 1: software used for facial recognition to be discovered to the defendant,
• 48:13
  Speaker 1: though they would not be admitted at trial. The court,
• 48:16
  Speaker 1: considering the matter, found, we are keenly aware, the cases
• 48:20
  Speaker 1: we have discussed involved instances concerning Frye hearings and potential
• 48:25
  Speaker 1: expert testimony, and that here we are dealing instead with
• 48:29
  Speaker 1: eyewitnesses who have already identified the perpetrator and the identification
• 48:34
  Speaker 1: found admissible under Wade. However, the facts of this case
• 48:38
  Speaker 1: convince us defendant will be deprived of due process if
• 48:41
  Speaker 1: he does not have access to raw materials integral to
• 48:45
  Speaker 1: the building of an effective defense. The evidence sought here
• 48:50
  Speaker 1: is directly tied to the defense's ability to test the
• 48:53
  Speaker 1: reliability of the FRT. As such, it is vital to
• 48:57
  Speaker 1: impeach the witnesses, identification, challenge the state's investigation, create reasonable doubt,
• 49:03
  Speaker 1: and demonstrate third-party guilt. The FRT's reliability has obvious implications
• 49:09
  Speaker 1: for the accuracy of the identification process because an array
• 49:13
  Speaker 1: constructed around a mistake, potential match, would leave the witness
• 49:17
  Speaker 1: with no actual perpetrator to choose. the reliability of the
• 49:21
  Speaker 1: technology bears direct relevance to the quality and thoroughness of
• 49:26
  Speaker 1: the broader criminal investigation and whether the potential matches the
• 49:30
  Speaker 1: software returned yielded any other viable alternative suspects to establish
• 49:36
  Speaker 1: third party guilt Defendants' request for the identity, design, specifications,
• 49:42
  Speaker 1: and operation of the program or programs used for analysis
• 49:46
  Speaker 1: and the database or databases used for comparison are relevant
• 49:50
  Speaker 1: to FRT's reliability. At trial, the state will likely have
• 49:55
  Speaker 1: the investigating officer explain the police investigation. including the process
• 50:00
  Speaker 1: of retrieving the still photo from the surveillance cameras ultimately
• 50:05
  Speaker 1: used to generate an image of the defendant. Although we
• 50:08
  Speaker 1: do not speculate regarding the exact nature of this testimony
• 50:12
  Speaker 1: and whether defendant will seek to impeach it, the fact
• 50:15
  Speaker 1: the state does not bear the burden of adducing testimony
• 50:19
  Speaker 1: regarding the composition of the photo array does not bar
• 50:23
  Speaker 1: the defense access to the discovery that's sought. Mr. Kohlberger
• 50:27
  Speaker 1: finds himself in a similar position as Mr. Artiega. A
• 50:31
  Speaker 1: massive investigation came to focus on him and him alone.
• 50:36
  Speaker 1: The state appears to be trying to hide its original
• 50:38
  Speaker 1: domino such that he cannot discover why. Mr. Kohlberger has
• 50:43
  Speaker 1: a right to discover and question the investigation that led
• 50:46
  Speaker 1: to him. This court should so find. Dated the 22nd
• 50:50
  Speaker 1: of June of 2023 and signed by Ann Taylor. All right, folks,
• 50:56
  Speaker 1: that's going to do it for this one. All of
• 50:57
  Speaker 1: the information that goes with the episode can be found
• 51:01
  Speaker 1: in the description box.