Latest / Beyond The Horizon / Murder In Moscow: Kohberger's Reply To The Objection To Exclude Rylene Nowlin

Transcript

Murder In Moscow: Kohberger's Reply To The Objection To Exclude Rylene Nowlin · 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 headed back up to Moscow, and we're
• 0:05
  Speaker 1: gonna dive right back into those court documents. And this time,
• 0:09
  Speaker 1: we're gonna be taking a look at Brian Koberger's reply
• 0:12
  Speaker 1: to the state's objection to the motion in limine number six,
• 0:16
  Speaker 1: nowlin and touch and contact DNA. Case number CR01-24-31665. State
• 0:21
  Speaker 1: of Idaho plaintiff. First, Brian C. Koberger, the defendant. Comes now,
• 0:31
  Speaker 1: Brian C. Koberger, by and through his attorneys of record,
• 0:34
  Speaker 1: and hereby respectfully replies to the state's objection to Mr.
• 0:37
  Speaker 1: Koberger's motion to exclude specific opinions of Riley Nowlin and
• 0:42
  Speaker 1: the terms touch DNA and contact DNA. The state's objection
• 0:46
  Speaker 1: is that the use of the term touch DNA will
• 0:48
  Speaker 1: not mislead the jury, that Nowlin's testimony on the how
• 0:52
  Speaker 1: the DNA was placed on Q11 is proper expert testimony,
• 0:56
  Speaker 1: and that despite Nowlin's opinion being the state's theory, that
• 0:59
  Speaker 1: it's the proper rebuttal to the testimony of defense expert Dr.
• 1:02
  Speaker 1: Ruth Ballard. Mr. Koberger will address each objection in order. A.
• 1:08
  Speaker 1: The use of the term touch DNA will mislead and
• 1:11
  Speaker 1: confuse the jury. In Mr. Koberger's MIL No. 6 at 3-8,
• 1:15
  Speaker 1: he sets forth in detail the history of the use
• 1:18
  Speaker 1: of the terms touch and contact DNA, and the growing
• 1:21
  Speaker 1: concern with the use of those words, so much that
• 1:24
  Speaker 1: a recent report from NIST offered the recommendation that that
• 1:28
  Speaker 1: analysts should not offer opinions as to the how and
• 1:31
  Speaker 1: the when a particular DNA sample came to be on
• 1:34
  Speaker 1: an object. The state's opposition argues that the only purpose
• 1:38
  Speaker 1: of the use of the words touch in the context
• 1:40
  Speaker 1: of DNA is to distinguish between samples that collected from
• 1:44
  Speaker 1: known or visible stains such as blood, saliva, and semen,
• 1:49
  Speaker 1: and DNA that might be deposited on an item by
• 1:51
  Speaker 1: handling or wearing. What this argument fails to consider, and Mr.
• 1:56
  Speaker 1: Kohlberger forcefully explains, the use of the word touch in
• 2:00
  Speaker 1: the context of DNA implies a fact that is not known,
• 2:03
  Speaker 1: that the DNA was in fact deposited via touching the object.
• 2:07
  Speaker 1: The implication of the word is the issue, not the
• 2:10
  Speaker 1: description of the type of sample or the means that
• 2:13
  Speaker 1: DNA can transfer through the environment. A close reading of
• 2:16
  Speaker 1: Nowlin's Now Three Disclosures shows the inherent problem with the
• 2:20
  Speaker 1: use of the word touch and the lack of any
• 2:22
  Speaker 1: need to use that term. In her first disclosure, S11,
• 2:26
  Speaker 1: Nowlin describes the ways in which DNA can move in
• 2:29
  Speaker 1: the environment using language such as direct, indirect transfer without
• 2:33
  Speaker 1: the use of the word touch, except to describe the
• 2:36
  Speaker 1: action of a person actually touching an item and transferring DNA.
• 2:40
  Speaker 1: In the March 3rd, 2025 disclosure, S17, Nowlin for the
• 2:44
  Speaker 1: first time uses the term touch DNA as a descriptor
• 2:48
  Speaker 1: and not a verb. If the court simply removed the
• 2:50
  Speaker 1: word touch from the disclosure, the description of the concepts
• 2:54
  Speaker 1: laid out would not suffer and would be as clear
• 2:57
  Speaker 1: as the earlier similar descriptions in S7. Nowlin seems to
• 3:01
  Speaker 1: switch between using the word touch in reference to describing
• 3:04
  Speaker 1: a type of DNA, indicating that it's not necessary to
• 3:07
  Speaker 1: offer a cogent description of the process of transfer laid
• 3:11
  Speaker 1: out in her disclosures. The state cites to a single
• 3:15
  Speaker 1: case for the proposition that experts in other cases have
• 3:18
  Speaker 1: used the phrase touch DNA. This case is from the
• 3:21
  Speaker 1: 2016 and discussing the availability of technology to test touch
• 3:26
  Speaker 1: DNA in the time frame from 2000 to 2012. McGibney v.
• 3:30
  Speaker 1: State of Idaho, 160. In further support, the state offers
• 3:36
  Speaker 1: a single article with references sampling methods for touch DNA.
• 3:40
  Speaker 1: It ignores the articles cited by Mr. Kohlberger, which are
• 3:43
  Speaker 1: reviews of the literature. These reviews cover in total over
• 3:47
  Speaker 1: 300 scientific articles. as compared to the single article presented
• 3:51
  Speaker 1: in the state's opposition. The state has presented no articles
• 3:55
  Speaker 1: advocating for the use of touch DNA. Finally, the state
• 3:58
  Speaker 1: offers now in statement that the term is typically used.
• 4:02
  Speaker 1: The state does not present any documents, peer-reviewed journal articles,
• 4:06
  Speaker 1: or other materials that advocate for the use of the
• 4:08
  Speaker 1: term touch or contact in reference to DNA samples taken
• 4:12
  Speaker 1: from an item where the lab did not see an
• 4:15
  Speaker 1: obvious body fluid stain and did nothing to determine the
• 4:18
  Speaker 1: presence of any possible biological source. Nowlin's affidavit offers no
• 4:23
  Speaker 1: support to the necessity of using the term touch DNA,
• 4:26
  Speaker 1: other than to state that it's a term that is
• 4:29
  Speaker 1: widely used. Nowhere does she point to any references that
• 4:32
  Speaker 1: support that position, that this is the only means available
• 4:35
  Speaker 1: to describe the type of sample that is being tested.
• 4:39
  Speaker 1: As is clear from her previous disclosures, she is very
• 4:42
  Speaker 1: clear and concise with describing transfer as a concept without
• 4:46
  Speaker 1: using the term. None of this is convincing and does
• 4:49
  Speaker 1: nothing to rebut the peer-reviewed opinions of the author cited
• 4:53
  Speaker 1: by Mr. Kohlberger that use the terms can be misleading
• 4:56
  Speaker 1: and suggest a mode of action which is unknown. The
• 4:59
  Speaker 1: use of descriptors, touch and contact DNA, are not necessary
• 5:03
  Speaker 1: to the description of transfer laid out in Nowlin's disclosures
• 5:07
  Speaker 1: and would only mislead and confuse the jury and require
• 5:10
  Speaker 1: a significant consumption of time and cross-examination to prove a
• 5:13
  Speaker 1: point that the state seems to concede. that the use
• 5:17
  Speaker 1: of the word is not intended to imply the how
• 5:20
  Speaker 1: of the DNA on Q11. B. The opinion of how
• 5:24
  Speaker 1: the transfer DNA to Q11 is not proper expert testimony.
• 5:28
  Speaker 1: To rebut the citations to the research on the topic
• 5:31
  Speaker 1: of transfer and analysts' ability to assess transfer in a
• 5:34
  Speaker 1: particular case, the state offered a brief conclusory affidavit from Nowlin.
• 5:39
  Speaker 1: This affidavit does nothing to assure or assist this court
• 5:42
  Speaker 1: in coming to a decision about As stated in MIL No. 6,
• 5:46
  Speaker 1: the state intends to offer Nowlin's opinion that the DNA
• 5:49
  Speaker 1: found on Q11 is from direct contact, despite acknowledging that
• 5:54
  Speaker 1: current DNA technology cannot conclusively answer the question of when
• 5:58
  Speaker 1: DNA was deposited on an item or by what mechanism.
• 6:02
  Speaker 1: Nowlin essentially places her subjective personal opinion in direct contradiction
• 6:07
  Speaker 1: that the technology used cannot answer that question. This type
• 6:11
  Speaker 1: of opinion and testimony is exactly the type of misleading
• 6:14
  Speaker 1: testimony that the EWG group is concerned about. Idaho Rules
• 6:19
  Speaker 1: of Evidence 702, 703, and 403 govern the admissibility of
• 6:23
  Speaker 1: expert testimony. As set forth in MIL No. 6, Mr.
• 6:28
  Speaker 1: Koberger objects to the specific testimony of Nowlin regarding her
• 6:31
  Speaker 1: opinion that the DNA found in Q11 is more likely
• 6:35
  Speaker 1: the result of direct transfer. A qualified expert may testify
• 6:39
  Speaker 1: in the form of an opinion only if their specialized
• 6:42
  Speaker 1: knowledge will assist the trier of fact to understand the
• 6:44
  Speaker 1: evidence or determine a fact and issue. Because a verdict
• 6:48
  Speaker 1: cannot rest on speculation or conjecture, expert opinion, which is speculative, conclusory,
• 6:55
  Speaker 1: or unsubstantiated by facts in the record, is of no
• 6:58
  Speaker 1: assistance to the jury in rendering its verdict, and therefore
• 7:01
  Speaker 1: is inadmissible as evidence under Rule 702. The admissibility of
• 7:07
  Speaker 1: expert opinion testimony depends on the expert's ability to explain
• 7:10
  Speaker 1: pertinent scientific principles and to apply those principles to the
• 7:14
  Speaker 1: formulation of his or her opinion. Thus, the key to
• 7:17
  Speaker 1: admission of the opinion is the validity of the expert's
• 7:21
  Speaker 1: reasoning and methodology. In resolving these issues, the trial court
• 7:26
  Speaker 1: should not substitute its judgment for that of the relevant
• 7:28
  Speaker 1: scientific community. The court's function is to distinguish scientifically sound
• 7:33
  Speaker 1: reasoning and from that of the self-validating expert, who uses
• 7:37
  Speaker 1: scientific terminology to present unsubstantiated personal beliefs. 1. Nowlin is
• 7:43
  Speaker 1: not an expert in transfer. The first question for the
• 7:46
  Speaker 1: court is whether Nowlin has the proper expertise to proffer
• 7:50
  Speaker 1: an opinion of how the DNA arrived on the sheath,
• 7:53
  Speaker 1: IRE 703. As set forth in Mr. Koberger's MIL No.
• 7:57
  Speaker 1: 6 at 4-8, The expertise for how and when opinions
• 8:01
  Speaker 1: require a different type of expertise that exceeds that of
• 8:04
  Speaker 1: the standard training and expertise of a DNA lab analyst.
• 8:09
  Speaker 1: Nowhere in its reply does the state address the question
• 8:12
  Speaker 1: of Nowlin's expertise in this area, nor does Nowlin in
• 8:15
  Speaker 1: her affidavit. Not mentioned by Nowlin in her affidavit is
• 8:19
  Speaker 1: the recommendation of EWG. This recommendation was objected to by
• 8:25
  Speaker 1: two of the 25 members of the EWG, not because
• 8:28
  Speaker 1: training on this subject is not important or necessary, but
• 8:32
  Speaker 1: because they question how FSSPs will determine who the experts
• 8:36
  Speaker 1: are for TPPR and formal activity evaluation training. As well
• 8:42
  Speaker 1: as what constitutes appropriate professional guidance in the United States,
• 8:46
  Speaker 1: they are also concerned that currently available guidance might not
• 8:49
  Speaker 1: employ the necessary safeguards necessary that typically exist in a
• 8:53
  Speaker 1: quality system of an accredited FSSP, e.g. validation, competency, and
• 8:58
  Speaker 1: proficiency testing, appropriate discovery, reporting processes, and similar measures. Additionally,
• 9:05
  Speaker 1: as stated in their objection to 7.1, these members believe
• 9:09
  Speaker 1: Recommendation 7.2 is premature until Recommendation 7.3 is implemented. Recommendation 7.2,
• 9:19
  Speaker 1: the evaluation of DNA results, given how and when questions
• 9:23
  Speaker 1: is distinct from the evaluation of DNA results given who questions.
• 9:28
  Speaker 1: In order to develop policies and practices on how DNA
• 9:32
  Speaker 1: analysts should respond appropriately to questions about when and how
• 9:36
  Speaker 1: DNA was deposited in a particular case, forensic science service
• 9:40
  Speaker 1: providers should consult professional guidance documents and experts who understand
• 9:45
  Speaker 1: issues related to transfer and persistence. These policies and practices
• 9:50
  Speaker 1: should require DNA analysts to be appropriately trained and respond
• 9:54
  Speaker 1: to such questions. A close review of Nowlin's experience shows
• 9:59
  Speaker 1: that she has no specialized training or experience in the
• 10:02
  Speaker 1: area of transfer. Her CV attached to Disclosure 121824 lists
• 10:06
  Speaker 1: no substantive training in the area of transfer. It appears
• 10:11
  Speaker 1: that she may have attended some presentations at the American
• 10:15
  Speaker 1: Academy of Forensic Science meeting in February of 2025. but
• 10:19
  Speaker 1: she provides no details regarding the presentation she attended, despite
• 10:23
  Speaker 1: the fact that the materials are available online. None of
• 10:27
  Speaker 1: her presentations or publications involve transfer, and she has pointed
• 10:31
  Speaker 1: to no research or experience she has in the area
• 10:34
  Speaker 1: of transfer to substantiate her ability to offer an opinion
• 10:38
  Speaker 1: on the how and when of the DNA in this case.
• 10:41
  Speaker 1: While now Lynn may be qualified to testify about DNA testing,
• 10:45
  Speaker 1: she is not competent or qualified to offer an opinion
• 10:48
  Speaker 1: on regarding the specific evidence in this case. 2. Opinion
• 10:53
  Speaker 1: of Nowlin direct transfer is speculative and not founded in
• 10:56
  Speaker 1: sufficient facts. The Idaho courts have long held that speculative
• 11:00
  Speaker 1: expert testimony is inadmissible. Testimony is speculative when it theorizes
• 11:06
  Speaker 1: about a matter as to which evidence is not sufficient
• 11:09
  Speaker 1: for certain knowledge. Adams v. State, 158, Idaho, 2015. An
• 11:15
  Speaker 1: opinion that is speculative suggests only possibilities and may be
• 11:18
  Speaker 1: properly excluded since the opinion would not assist the trier effect.
• 11:23
  Speaker 1: Expert testimony will assist the trier effect when the reasoning
• 11:26
  Speaker 1: or methodology underlying the opinion is scientifically sound. In determining
• 11:36
  Speaker 1: whether expert testimony is admissible, the court must evaluate the
• 11:40
  Speaker 1: expert's ability to explain pertinent scientific principle and to apply
• 11:44
  Speaker 1: those principles to the formulation of his or her opinion.
• 11:48
  Speaker 1: While the court must distinguish scientifically sound reasoning from that
• 11:51
  Speaker 1: of the self-validating expert who uses scientific terminology to present
• 11:56
  Speaker 1: unsubstantiated personal beliefs, it may not substitute its judgment for
• 12:00
  Speaker 1: that of the relevant scientific community. Here, Nowlin presents an
• 12:05
  Speaker 1: opinion that the Idaho Supreme Court specifically warns against a
• 12:08
  Speaker 1: personal belief presented as a possibility without any scientific basis
• 12:12
  Speaker 1: to support the opinion. In response to Mr. Kohlberger's MIL No. 6,
• 12:17
  Speaker 1: The state filed a short affidavit from Nowlin, reasserting without
• 12:21
  Speaker 1: any factual or scientific support that there is not a
• 12:24
  Speaker 1: consensus in the forensic community that DNA lab analysts should
• 12:28
  Speaker 1: not opine about DNA transfer, persistence, and recovery. In support
• 12:34
  Speaker 1: of this argument, Nowlin points to the dissent of two
• 12:36
  Speaker 1: of the EWG members to the recommendations from the EWG
• 12:41
  Speaker 1: that analysts not present these opinions. However, the statement by
• 12:46
  Speaker 1: Nowlin is incomplete and misleading. While Nowlin is correct in
• 12:49
  Speaker 1: that two of the 25 members dissented, their dissent is
• 12:52
  Speaker 1: not supportive of Nowlin's position because they, like all other
• 12:56
  Speaker 1: EWG members, agree that this type of testimony can be
• 13:00
  Speaker 1: misleading and otherwise problematic. Two members, Lynn Garcia and Don Boswell,
• 13:06
  Speaker 1: do not support Recommendation 7.1. While they acknowledge that analysts
• 13:10
  Speaker 1: are often asked to respond to how and when questions
• 13:13
  Speaker 1: in criminal cases are and agree that testimony on this
• 13:16
  Speaker 1: subject can be misleading or otherwise problematic. They believe that
• 13:20
  Speaker 1: the broad prohibition in Recommendation 7.1 puts the proverbial cart
• 13:25
  Speaker 1: before the horse by not first requiring an assessment of
• 13:28
  Speaker 1: the type outlined in Recommendation 7.3. Moreover, they worry that
• 13:33
  Speaker 1: supporting 7.1 would imply the need for analysts to shift
• 13:37
  Speaker 1: to a new paradigm that has not yet been sufficiently
• 13:40
  Speaker 1: vetted within the specific context of the U.S. court system.
• 13:44
  Speaker 1: This objection is not an endorsement of this type of testimony,
• 13:47
  Speaker 1: rather it voices concerns that essentially there is no adequate
• 13:51
  Speaker 1: training or system in place to support the scientific validity
• 13:55
  Speaker 1: of the how and the when opinion. Nowlin next points
• 13:59
  Speaker 1: to the lack of consensus within the forensic DNA community
• 14:02
  Speaker 1: on the use of this type of testimony, however this
• 14:05
  Speaker 1: is more argument than fact. Nowlin asserts that the other
• 14:08
  Speaker 1: side of the debate, believes that not offering an opinion
• 14:11
  Speaker 1: based on knowledge of molecular biology, DNA, when it may
• 14:15
  Speaker 1: aid in the trier of fact is unethical, and that
• 14:18
  Speaker 1: there were a presentation on both sides of the argument
• 14:21
  Speaker 1: at a recent meeting of the American Academy of Sciences,
• 14:24
  Speaker 1: Nowlin does not provide the identities of the community she
• 14:27
  Speaker 1: cites for support of any article or presentation that supports
• 14:30
  Speaker 1: her statements, nor does she explain how ethical norms are
• 14:34
  Speaker 1: being violated or that there are ethical guidelines that support
• 14:38
  Speaker 1: this contention. Nowlin has presented no scientific arguments or research
• 14:43
  Speaker 1: on the topic that supports her opinions, as is demanded
• 14:46
  Speaker 1: by Idaho law, and so clearly stated in Ryan Supra
• 14:50
  Speaker 1: 123 Idaho at 46. The admissibility of expert opinion testimony
• 14:55
  Speaker 1: depends on the expert's ability to explain pertinent scientific principles
• 14:59
  Speaker 1: and to apply those principles to the formulation of his
• 15:02
  Speaker 1: or her opinion. Thus, key to admission of the opinion
• 15:06
  Speaker 1: is the validity of the expert's reasoning and and methodology.
• 15:11
  Speaker 1: Even in a signed affidavit, Nowlin can produce no scientific
• 15:14
  Speaker 1: principles that apply to the formulation of her opinion, and
• 15:17
  Speaker 1: she has offered this court no reasoned basis for her
• 15:20
  Speaker 1: opinion other than two bare facts. The court need consider
• 15:24
  Speaker 1: carefully her full opinion. Many complicated factors can influence the
• 15:28
  Speaker 1: likelihood to transfer of DNA and the persistence of the
• 15:32
  Speaker 1: transferred DNA after deposition. Current DNA technology cannot conclusively answer
• 15:37
  Speaker 1: the question of when DNA was deposited on an item
• 15:41
  Speaker 1: or by what mechanism, i.e. direct or indirect transfer. It's
• 15:45
  Speaker 1: possible the DNA detected on M20224843 item 1.1 resulted from
• 15:51
  Speaker 1: secondary transfer. However, based on Nowlin's training and experience, it's
• 15:57
  Speaker 1: her opinion given the quantity of DNA detected on M20224843
• 16:00
  Speaker 1: item 1.1 and given the DNA profile obtained in single source,
• 16:07
  Speaker 1: it's more likely the result of a direct transfer. First,
• 16:10
  Speaker 1: Nowlin explains that there are many complicated factors affecting the
• 16:13
  Speaker 1: transfer of DNA, states that the current technology cannot conclusively
• 16:17
  Speaker 1: answer the question of the how and when of transfer,
• 16:21
  Speaker 1: explains that the DNA on item Q. 11 could possibly be
• 16:26
  Speaker 1: due to the indirect transfer, but that her own personal
• 16:28
  Speaker 1: training and experience lead her to the conclusion that DNA
• 16:32
  Speaker 1: is is more likely due to direct transfer. Now Lin
• 16:35
  Speaker 1: essentially offers the court, and ultimately the jury, a confusing
• 16:39
  Speaker 1: opinion that the science does not follow for conclusive determination
• 16:43
  Speaker 1: of how and when of transfer and what both scenarios,
• 16:46
  Speaker 1: direct and indirect transfer, are possible. But she believes that
• 16:50
  Speaker 1: the direct transfer is more likely. This opinion cannot be
• 16:53
  Speaker 1: more speculative. An opinion that is speculative suggests only possibilities
• 16:58
  Speaker 1: and may be properly excluded since the opinion would not
• 17:01
  Speaker 1: assist the trier in fact. This opinion would not be
• 17:04
  Speaker 1: helpful to a jury and would tend to confuse and
• 17:07
  Speaker 1: mislead the jury. Nowlin only offers possibilities based on no
• 17:11
  Speaker 1: substantive scientific principles and which flies in the face of
• 17:15
  Speaker 1: the science that Nowlin herself agrees with that this type
• 17:18
  Speaker 1: of opinion cannot be conclusively determined. Mr. Koberger would be
• 17:23
  Speaker 1: prejudiced by this speculative opinion and substantial court time would
• 17:27
  Speaker 1: be consumed in the cross-examination and impeachment of this witness
• 17:31
  Speaker 1: and and this opinion, and therefore this opinion, should be excluded. Conclusion. Mr.
• 17:36
  Speaker 1: Kohlberger's motion to exclude the use of the words touch
• 17:40
  Speaker 1: and contact DNA, as well as the opinion of Nowlin,
• 17:43
  Speaker 1: regarding the how and when of the DNA, should be excluded.
• 17:47
  Speaker 1: This document was dated March 24th of 2025, and it
• 17:51
  Speaker 1: was signed by Bicca Barlow. All of the information that
• 17:55
  Speaker 1: goes with this episode can be found in the description box.