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Mega Edition: Bryan Kohberger And The Attempt To Use His Autism As A Defense (9/10/26) · 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 keep the train rolling up
• 0:05
  Speaker 1: in Moscow, and this time we're taking a look at
• 0:08
  Speaker 1: the order by Judge Hippler that has to do with
• 0:10
  Speaker 1: the state's motion in limine, neuropsychological and psychiatric evidence. Case
• 0:16
  Speaker 1: number CR01-24-31665. State of Idaho Plaintiff, 1st Brian C.
• 0:19
  Speaker 2: Kohlberger, the defendant. Introduction.
• 0:27
  Speaker 1: The state seeks to prohibit the defendant from offering any
• 0:30
  Speaker 1: testimony during the penalty phase in connection with his neuropsychological
• 0:35
  Speaker 1: and psychiatric evaluations performed by his disclosed experts, Dr. Rachel
• 0:39
  Speaker 1: Orr and Dr. Eileen Ryan. The state argues the proposed
• 0:43
  Speaker 1: testimony falls outside the mental conditions evidence allowed by I.C.
• 0:47
  Speaker 1: Section 18-207. Defendant responds that he is not relying on
• 0:52
  Speaker 1: the proposed testimony as a mental element defense under I.C.,
• 0:56
  Speaker 1: Section 18207, noting his relevant diagnosis, are physical conditions, not
• 1:02
  Speaker 1: mental conditions. Rather, he intends to present the evidence to
• 1:05
  Speaker 1: aid the jury in understanding both the physical implications of
• 1:09
  Speaker 1: his diagnoses and contextualizing his allegedly unconventional courtroom demeanor. Oral
• 1:15
  Speaker 1: argument on this motion was held on April 9, 2025,
• 1:19
  Speaker 1: after which the court took the matter under advisement. The
• 1:22
  Speaker 1: court finds that if defendant does not testify... Evidence of
• 1:26
  Speaker 1: his diagnosis to explain his courtroom demeanor is not relevant
• 1:30
  Speaker 1: and or inadmissible under IRE 403. Ruling is reserved as
• 1:35
  Speaker 1: to certain behaviors that may become relevant in rebuttal except
• 1:39
  Speaker 1: for expert testimony that he was physically unable to commit
• 1:42
  Speaker 1: the crimes for which there is no disclosed opinion. 2.
• 1:46
  Speaker 1: Standard The question of whether the evidence is relevant, one
• 1:50
  Speaker 1: of law, while the decision to admit relevant evidence is discretionary.
• 1:54
  Speaker 1: State v. Schutz, 143, Idaho, 200-202-141, p. 3d, 1069-1071, 2006. On
• 2:05
  Speaker 1: discretionary matters, the trial court must 1. Correctly perceive the
• 2:09
  Speaker 1: issue as one of discretion, 2. Act within the outer
• 2:12
  Speaker 1: boundaries of its discretion, 3. Act consistently with the legal
• 2:16
  Speaker 1: standards applicable to the specific choices available to it, and 4.
• 2:21
  Speaker 1: Reach its decision by the exercise of reason. Lumberg v.
• 2:25
  Speaker 1: My Fun Life, 163 Idaho, 2018.
• 2:29
  Speaker 2: Three, the facts.
• 2:31
  Speaker 1: During the course of this case, the defense team retained Dr.
• 2:33
  Speaker 1: Rachel Orr, a clinical neuropsychologist, to conduct a comprehensive neuropsychological
• 2:39
  Speaker 1: evaluation of defendant and issue a report. She ultimately diagnosed
• 2:43
  Speaker 1: defendant with autism spectrum disorder level 1 without any intellectual
• 2:48
  Speaker 1: or language impairment, an obsessive compulsive disorder, among others. Defense Exhibit,
• 2:55
  Speaker 1: and Expert Disclosure, D7B, page 16. She also listed various
• 3:00
  Speaker 1: diagnoses for which defendant met criteria in the past. One
• 3:04
  Speaker 1: of these was developmental coordination disorder. According to Dr. Orr,
• 3:08
  Speaker 1: ASD is a complex, heterogeneous, neurodevelopmental disorder rooted in brain
• 3:14
  Speaker 1: differences and characterized by social and behavioral features. It causes
• 3:20
  Speaker 1: deficits in which affected individuals perceive and react to others
• 3:24
  Speaker 1: and their environment, causing problems in social communication and interactions,
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  Speaker 1: repetitive behaviors, and narrow range of interests. There is a
• 3:32
  Speaker 1: wide range of autism symptoms and severity. Deficits can include
• 3:37
  Speaker 1: a restricted range of effect, atypical eye contact, displaying facial
• 3:41
  Speaker 1: expression or movements that do not match what is being said,
• 3:44
  Speaker 1: failure to consider social cues, having trouble with speech, reciprocity,
• 3:49
  Speaker 1: and repetitive behaviors. While defendant is diagnosed with the least
• 3:53
  Speaker 1: severe form of ASD and by all accounts is highly functioning,
• 3:57
  Speaker 1: both Dr. Orr and Dr. Ryan noted deficiencies in his
• 4:00
  Speaker 1: behavior to include intense eye contact, restricted range or effect,
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  Speaker 1: occasional subtle rocking of upper torso while seated, awkward gestures
• 4:09
  Speaker 1: and interaction, atypical tone, lack of appreciation for personal space,
• 4:13
  Speaker 1: and pedantic speech. Sounds like all of our elected officials, honestly.
• 4:18
  Speaker 2: However, Dr.
• 4:19
  Speaker 1: Orr also observed that defendant demonstrated typical social behaviors such
• 4:23
  Speaker 1: as fairly consistent through intense eye contact, polite demeanor, and
• 4:27
  Speaker 1: social conventions, e.g. shaking hands upon greeting, or report at
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  Speaker 1: page 8 and 9. She noted defendant engaged in conversation
• 4:36
  Speaker 1: and never overtly inappropriate. Dr. Orr noted that defendant manages
• 4:41
  Speaker 1: sensory processing differences by self-soothing activities like driving and extensive
• 4:45
  Speaker 1: time in the dark. Defendant's OCD is manifested through compulsive
• 4:50
  Speaker 1: cleaning behaviors and taking precautions to avoid contamination, sickness, or germs.
• 4:55
  Speaker 1: Or report page 18. He excessively washes his hands and
• 4:59
  Speaker 1: reported uses gloves during basic everyday tasks. Although defendant does
• 5:05
  Speaker 1: not carry a current diagnosis of DCD, Dr. Orr opines
• 5:08
  Speaker 1: that he met the criteria for the diagnosis in the past.
• 5:12
  Speaker 1: She explains in her report, defendant's educational history, parent report,
• 5:16
  Speaker 1: and evaluation results all provide evidence that defendant experienced significant
• 5:21
  Speaker 1: deficits in motor functions in the course of development, which
• 5:24
  Speaker 1: in turn contributed to problems meeting typical motto and coordination
• 5:28
  Speaker 1: milestones of childhood, e.g. problems catching balls, handwriting, riding a bicycle.
• 5:34
  Speaker 1: While motor problems have not impacted his functioning significantly in
• 5:38
  Speaker 1: many years, defendant continues to present with impairment in fine
• 5:42
  Speaker 1: motor dexterity and vulnerabilities in visual motor functions, evidence in
• 5:46
  Speaker 1: his cognitive profile and observations of his behavior. The only
• 5:51
  Speaker 1: observation Dr. Rohr made with regard to defendant's fine motor
• 5:54
  Speaker 1: dexterity was that defendant moved his whole arm and repositioned
• 5:58
  Speaker 1: his upper body slightly to manipulate the items effectively. ID
• 6:02
  Speaker 1: page 7. In her cognitive profile, she stated that defendant's
• 6:06
  Speaker 1: visual motor skills were relatively weak in the context of
• 6:09
  Speaker 1: his overall profile, particularly when precision or dexterity were involved.
• 6:15
  Speaker 2: E.g.
• 6:15
  Speaker 1: Copying visual motor sequencing, consistent with her history of fine
• 6:19
  Speaker 1: motor deficits. When isolated, defendant's fine motor dexterity and speed
• 6:23
  Speaker 1: were impaired bilaterally, first percentile, likely impacting his visual motor
• 6:28
  Speaker 1: performances as well. According to the declaration by Dr. Jeffrey Lewine,
• 6:33
  Speaker 1: submitted by defendant as Exhibit D1 to his response to
• 6:37
  Speaker 1: state's motion, ASD, OCD, and DCD are either neurodevelopmental or
• 6:44
  Speaker 1: neurobiological disorders as opposed to mental conditions caused by external
• 6:49
  Speaker 1: psychological factors or events. He notes that an MRI of
• 6:54
  Speaker 1: defendant's brain shows objective evidence of disruptive brain structure in
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  Speaker 1: several nodes of the social network, ID page 4. Part 4.
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  Speaker 1: The Analysis A. I see Section 18-07 is not applicable.
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  Speaker 1: Section 18.207 Idaho Code applies to any issue of mental
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  Speaker 1: condition in any legal proceeding at which the defendant's mental
• 7:19
  Speaker 1: health condition may be an issue.
• 7:21
  Speaker 2: State v.
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  Speaker 1: Samuel 165, Idaho, 746, 2019. It provides in relevant part, 1.
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  Speaker 1: Mental condition shall not be a defense to any charge
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  Speaker 1: of criminal conduct. 3. Nothing herein is intended to prevent
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  Speaker 1: the admission of expert evidence on the issue of any
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  Speaker 1: state of mind. which is an element of the offense
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  Speaker 1: subject to the rules of evidence. IC Section 18207. Under
• 7:46
  Speaker 1: the statute, the evidence of mental condition is expressly permitted
• 7:49
  Speaker 1: to rebut the state's evidence offered to prove criminal intent
• 7:53
  Speaker 1: or mens rea. State v. Diaz, 170, Idaho, 2022. Any
• 7:58
  Speaker 1: expert testimony admitted on the issue of mens rea or
• 8:01
  Speaker 1: state of mind under Idaho Code Section 18207 must speak
• 8:06
  Speaker 1: to an element of the crime. ID at 85. 507 p. 3d
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  Speaker 1: at 1115. Here, however, defendant is not intending to use
• 8:15
  Speaker 1: his diagnosis to challenge the state of mind element of
• 8:18
  Speaker 1: the crimes for which he is charged. In fact, he
• 8:21
  Speaker 1: is not intending to use his diagnosis as a reflection
• 8:24
  Speaker 1: of his mental state at all and disputes that there
• 8:27
  Speaker 1: are mental conditions in the first place. Thus, because defendant
• 8:30
  Speaker 1: is seeking to introduce his diagnosis to explain physical deficits,
• 8:35
  Speaker 1: Rather than mental deficits that qualify them from forming the
• 8:38
  Speaker 1: intent necessary to commit the crimes, IC Section 18207 does
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  Speaker 1: not govern the analysis. B. Evidence of Defendant's Diagnosis Having
• 8:50
  Speaker 1: determined that IC Section 18207 does not apply, the next
• 8:53
  Speaker 1: question is whether evidence of defendant's diagnosis is relevant. Evidence
• 8:58
  Speaker 1: is relevant if it has a tendency to make the
• 9:01
  Speaker 1: existence of any fact that is of consequence to the
• 9:04
  Speaker 1: determination of of the action more probable or less probable
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  Speaker 1: than it would be without the evidence. IRE 401 Whether
• 9:12
  Speaker 1: a fact is of consequence or material is determined by
• 9:16
  Speaker 1: its relationship to the legal theories presented by the parties.
• 9:19
  Speaker 1: State v. Abdullah 158, 2015 Even if relevant, the trial
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  Speaker 1: court has discretion to exclude the evidence if the probative
• 9:27
  Speaker 1: value is substantially outweighed by the danger of unfair prejudice,
• 9:31
  Speaker 1: confusion of the issues, or misleading the jury. or by
• 9:34
  Speaker 1: considerations of undue delay, waste of time, or needless presentation
• 9:39
  Speaker 1: of cumulative evidence. IRE 403. Unfair prejudice is prejudice that
• 9:44
  Speaker 1: tends to suggest a decision on an improper basis. State v.
• 9:50
  Speaker 1: Diaz 2022. 1. Evidence of ASD to explain demeanor is
• 9:54
  Speaker 1: only admissible if defendant testifies. With regard to evidence of
• 9:58
  Speaker 1: his ASD, defendant can it's relevant to explain that his
• 10:02
  Speaker 1: ASD diagnosis is a physical condition and how it presents
• 10:06
  Speaker 1: in his demeanor. Specifically, defendant asserts testimony about his ASD
• 10:11
  Speaker 1: will help the jury understand that his behavioral characteristics, such
• 10:15
  Speaker 1: as his flat effect, intense eye contact, awkward body posture,
• 10:19
  Speaker 1: and lack of a motive response are associated with his
• 10:22
  Speaker 1: ASD and should not be interpreted in a sinister light.
• 10:26
  Speaker 1: Defendant argues that he should be able to introduce the
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  Speaker 1: evidence at the outset of trial. The state responds that
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  Speaker 1: defendant's demeanor is not a fact of consequence in this
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  Speaker 1: case and not even evidence the jury can consider, at
• 10:38
  Speaker 1: least if he does not testify. To this end, the
• 10:41
  Speaker 1: state relies on a body of law regarding prosecutorial misconduct
• 10:45
  Speaker 1: and commenting on a defendant's demeanor as evidence of guilt.
• 10:49
  Speaker 1: In one representative case, United States v. Shuler, the court
• 10:52
  Speaker 1: observed that a defendant's courtroom behavior off the witness stand
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  Speaker 1: is not admissible evidence and is legally irrelevant to the
• 10:59
  Speaker 1: question of his guilt of the crime charged. Thus, in
• 11:07
  Speaker 1: the absence of a curative instruction from the court, a
• 11:10
  Speaker 1: prosecutor's comment on a defendant off the stand behavior constitutes
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  Speaker 1: a violation of the Due Process Clause of the Fifth Amendment.
• 11:18
  Speaker 1: The clause encompasses the right not to be convicted except
• 11:21
  Speaker 1: on the basis of evidence adduced at trial. While the
• 11:25
  Speaker 1: relevance of defendant's demeanor is raised in a different context here,
• 11:29
  Speaker 1: the principles of his body of law apply equally. The
• 11:33
  Speaker 1: Supreme Court declared that one accused of a crime is
• 11:36
  Speaker 1: entitled to have guilt or innocence determined solely on the
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  Speaker 1: basis of the evidence introduced at trial and not on
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  Speaker 1: the grounds not adduced as proof at trial.
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  Speaker 2: Taylor v.
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  Speaker 1: Kentucky states, 436 U.S.
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  Speaker 2: 478, 1978. The jury will be.
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  Speaker 1: Instructed as to what evidence is allowed to consider in
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  Speaker 1: arriving at its determination of guilt or innocence, sworn testimony
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  Speaker 1: of witnesses, exhibits, which have been admitted into evidence, and
• 12:03
  Speaker 1: facts to which the parties have stipulated. ICJI 202. A
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  Speaker 1: non-testifying party's demeanor is not included and therefore legally irrelevant
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  Speaker 1: to the question of guilt. Alright, we're going to wrap
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  Speaker 1: up right here and in the next episode we're going
• 12:17
  Speaker 1: to pick up where we left off. All of the
• 12:19
  Speaker 1: information that goes with this episode can be found in
• 12:23
  Speaker 1: the description box. What's up everyone and welcome back to
• 12:25
  Speaker 1: the program. In this episode we're getting right back to
• 12:28
  Speaker 1: Judge Hippler's order when it comes to autism and the
• 12:32
  Speaker 1: neurodivergent issues that Brian Kohlberger has. While defendant cites the
• 12:37
  Speaker 1: case law, allowing evidence of ASD in the criminal context,
• 12:41
  Speaker 1: those cases are distinguishable. In State v. Burr, which defendant
• 12:45
  Speaker 1: predominantly relies upon, the New Jersey Supreme Court found evidence
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  Speaker 1: of the defendant's ASD was properly admitted in a child
• 12:52
  Speaker 1: molestation case for two independent reasons. One, to explain that
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  Speaker 1: the defendant's actions of having his young piano student sit
• 12:59
  Speaker 1: on his lap was not intended as sexual grooming. but
• 13:03
  Speaker 1: rather a way to relate to his students, and two,
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  Speaker 1: to educate the jury about oddities in behavior that defendant
• 13:09
  Speaker 1: might exhibit in court or that were described in the
• 13:11
  Speaker 1: testimony of witnesses. Those oddities in behavior were not discussed
• 13:16
  Speaker 1: in the opinion. However, in a prior decision in the
• 13:19
  Speaker 1: case by the New Jersey Superior Court Appellate Division, the
• 13:23
  Speaker 1: court provided more detail thus placing the ruling in its
• 13:26
  Speaker 1: proper context. State v. Burr, New Jersey Supreme Court, Appellate Division,
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  Speaker 1: November 16, 2006. There, the court noted that during a
• 13:36
  Speaker 1: pretrial court appearance, the trial judge became alarmed by defendant's
• 13:40
  Speaker 1: odd appearance and demeanor when he arrived to the court
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  Speaker 1: with a bag or large sign draped over his head.
• 13:47
  Speaker 1: When the trial judge inquired about his dress, the defendant
• 13:50
  Speaker 1: began quoting from the book of Deuteronomy. Concerned, the trial
• 13:54
  Speaker 1: judge ordered a competency examination which revealed that the defendant
• 13:58
  Speaker 1: was demonstrating signs of Asperger's disorder with which was subsequently diagnosed.
• 14:04
  Speaker 1: The state sought to exclude expert medical testimony at trial
• 14:08
  Speaker 1: about the defendant's diagnosis, but the defendant argued it was
• 14:11
  Speaker 1: relevant to show that his ability to make social judgments
• 14:14
  Speaker 1: was impaired, i.e. allowing young female students to sit on
• 14:18
  Speaker 1: his lap and to explain his odd or alarming appearance
• 14:22
  Speaker 1: and mannerisms. The trial court excluded the evidence and the
• 14:27
  Speaker 1: defendant was convicted. Not one of defendant's experts has ever
• 14:30
  Speaker 1: imputed behavior to him that remotely approaches the odd behavior
• 14:34
  Speaker 1: in Burr. Moreover, the court has had the opportunity to
• 14:37
  Speaker 1: observe defendant through multiple hearings over the past several months,
• 14:41
  Speaker 1: some lasting all day. Not once has the court perceived
• 14:44
  Speaker 1: defendant to be acting in an odd or incongruent manner
• 14:48
  Speaker 1: or otherwise demonstrating signs at counsel table that would warrant
• 14:51
  Speaker 1: any explanation to the jury. His demeanor has been entirely appropriate.
• 14:56
  Speaker 1: In addition, unlike in Burr, the state has indicated it
• 14:59
  Speaker 1: will not present any evidence from witnesses about defendant's allegedly
• 15:03
  Speaker 1: odd behavior. Consequently, testimony about defendant's ASD is simply not
• 15:08
  Speaker 1: relevant if he does not testify. Moreover, introducing such evidence
• 15:13
  Speaker 1: risks confusing the issues, misleading the jurors, wasting time, and
• 15:17
  Speaker 1: potentially unfairly prejudicing both defense and the state. The jury
• 15:22
  Speaker 1: will already be instructed about evidence it is allowed to
• 15:24
  Speaker 1: consider in determining guilt because there is no reason for
• 15:28
  Speaker 1: this testimony except to explain something that a jury is
• 15:31
  Speaker 1: not allowed to consider in the first place, i.e. defendant's demeanor,
• 15:35
  Speaker 1: it may very well cause confusion about the role of
• 15:38
  Speaker 1: expert testimony and how it plays in the overall determination
• 15:41
  Speaker 1: of guilt. While the court is not blind to the
• 15:44
  Speaker 1: fact that the jury will be scrutinizing defendant's courtroom behavior
• 15:47
  Speaker 1: during trial, allowing testimony about his ASD to explain his
• 15:51
  Speaker 1: courtroom behavior amounts to judicial endorsement of improper evidence. If anything,
• 15:56
  Speaker 1: presenting evidence of defendant's ASD will focus the jurors even
• 16:00
  Speaker 1: more on defendant's behaviors that they likely would not have
• 16:04
  Speaker 1: noticed in the first place. It may also diminish the
• 16:07
  Speaker 1: way to sign to evidence the jury is instructed to
• 16:10
  Speaker 1: consider in aiding its determination of guilt despite instructions to
• 16:14
  Speaker 1: the contrary. It essentially invites the jury to consider the
• 16:18
  Speaker 1: character of the accused to determine guilt, which is not
• 16:21
  Speaker 1: proper except as allowed by IRE 404. In this sense,
• 16:25
  Speaker 1: the evidence runs the risk of being unfairly prejudicial to defendant.
• 16:30
  Speaker 1: It additionally risks playing into the jury's sympathies to the
• 16:32
  Speaker 1: prejudice of the state. Moreover, expert testimony, particularly on a
• 16:37
  Speaker 1: diagnosis as encompassing as ASD, will consume a significant amount
• 16:42
  Speaker 1: of time in an already lengthy trial. Consequently, if defendant
• 16:46
  Speaker 1: does not testify evidence of his ASD to explain his
• 16:49
  Speaker 1: courtroom demeanor is inadmissible under ASD, IRE 401 and 403. If, however,
• 16:56
  Speaker 1: defendant testifies, evidence to explain his demeanor may become relevant
• 17:00
  Speaker 1: at that point. Defendant's demeanor, which goes to his credibility,
• 17:04
  Speaker 1: is relevant evidence a jury can consider, which the state concedes. However,
• 17:09
  Speaker 1: prior to presenting testimony on the matter, defendant must raise
• 17:12
  Speaker 1: the matter with the court outside the presence of the
• 17:15
  Speaker 1: jury to discuss the permissible scope. 2. The court reserves
• 17:19
  Speaker 1: ruling on admissibility of OCD evidence. Defendant argues that evidence
• 17:24
  Speaker 1: of his physical manifestations of OCD may be relevant in rebuttal.
• 17:30
  Speaker 1: Those manifestations, according to Dr. Orr, including compulsive handwashing, wearing
• 17:34
  Speaker 1: gloves to avoid germs, and generally avoiding anything contaminating. Defendant
• 17:39
  Speaker 1: further adds in argument only that his OCD causes sleep
• 17:42
  Speaker 1: difficulties that have led to a habit of night driving
• 17:46
  Speaker 1: and running to decompress. He argues that if the state
• 17:49
  Speaker 1: elicits testimony at trial related to these facts, In order
• 17:52
  Speaker 1: to support elements of the crimes, evidence of these manifestations
• 17:57
  Speaker 1: will be proper rebuttal. The state responds that it does
• 18:00
  Speaker 1: not intend to introduce any evidence during the guilt phase
• 18:03
  Speaker 1: as to defendants' odd behaviors, social miscues, or other unusual behaviors. However,
• 18:10
  Speaker 1: it requests that the court reserve ruling until the time
• 18:12
  Speaker 1: of trial. The court finds this an appropriate approach. Again,
• 18:16
  Speaker 1: prior to introducing such evidence or otherwise mentioning it before
• 18:20
  Speaker 1: the jury, defendant shall raise the matter outside the presence
• 18:24
  Speaker 1: of the jury. 3. Evidence of DCD is not admissible
• 18:27
  Speaker 1: to rebut ability to commit crimes. As with his OCD,
• 18:32
  Speaker 1: defendant argues he intends to introduce evidence of deficits in
• 18:36
  Speaker 1: his fine motor dexterity and visual motor function caused by
• 18:40
  Speaker 1: DCD to rebut the state's evidence that it was possible
• 18:43
  Speaker 1: for him to have acted with the speed and coordination
• 18:46
  Speaker 1: required to commit the crimes. The state responds that defendant
• 18:50
  Speaker 1: is improperly stretching the bounds of his expert's opinion to
• 18:53
  Speaker 1: reach an inference that cannot reasonably be drawn, which was
• 18:57
  Speaker 1: not disclosed, and which otherwise has no support. It argues
• 19:00
  Speaker 1: that the evidence is not relevant to guilt and or
• 19:03
  Speaker 1: barred by IRE 403. The state's challenge is well placed.
• 19:08
  Speaker 1: Whether defendant was physically capable of speed and dexterity to
• 19:11
  Speaker 1: commit the crime on account of DCD is within the
• 19:14
  Speaker 1: realm of expert opinion and As Dr. Lewine observed, DCD
• 19:18
  Speaker 1: is characterized by impairments in the development of motor coordination,
• 19:23
  Speaker 1: including dexterity, limb speed, and gross and fine motor skills.
• 19:27
  Speaker 1: Declaration at 15. It is associated with structural and functional
• 19:32
  Speaker 1: disruption of motor control and coordination networks with minimal modulation
• 19:36
  Speaker 1: by psychological factors. However, it is not a diagnosis from
• 19:41
  Speaker 1: which defendant currently suffers. In her report, Dr. Orr noted
• 19:45
  Speaker 1: DCD was a diagnosis for which defendant met criteria in
• 19:49
  Speaker 1: the past. Further, there is nothing in her disclosure or
• 19:52
  Speaker 1: report suggesting defendant was physically unable to commit the crimes
• 19:56
  Speaker 1: due to impairments associated with DCD. Her entire discussion on
• 20:01
  Speaker 1: defendant's DCD is as follows. Defendant's educational history, parent report,
• 20:06
  Speaker 1: and evaluation results all provide evidence that defendant experienced significant
• 20:11
  Speaker 1: deficits in motor functions in the course of development, which
• 20:15
  Speaker 1: in turn contributed to problems meeting typical moto and coordination
• 20:19
  Speaker 1: milestones of childhood, e.g. problems catching balls, handwriting, riding a bicycle.
• 20:25
  Speaker 1: While motor problems have not impacted his functioning significantly in
• 20:28
  Speaker 1: many years, defendant continues to present with impairment in fine
• 20:33
  Speaker 1: motor dexterity and vulnerabilities in visual motor functions, evidence in
• 20:37
  Speaker 1: his cognitive profile, and observations of his behavior. The only
• 20:42
  Speaker 1: observation Dr. Orr made with regard to defendant's fine motor
• 20:45
  Speaker 1: dexterity was that defendant moved his whole arm and repositioned
• 20:49
  Speaker 1: his upper body slightly to manipulate the items effectively. In
• 20:53
  Speaker 1: her cognitive profile, she stated that defendant's visual motor skills
• 20:57
  Speaker 1: were relatively weak in the context of his overall profile,
• 21:01
  Speaker 1: particularly when precision was of dexterity were involved, e.g. copying,
• 21:06
  Speaker 1: visual motor sequencing. Consistent with his history of fine motor deficits,
• 21:11
  Speaker 1: when isolated Brian's fine motor dexterity and speed were impaired bilaterally,
• 21:16
  Speaker 1: likely impacting his visual motor performances as well. The foregoing
• 21:21
  Speaker 1: represents the extent of expert commentary on defendant's DCD, nothing
• 21:25
  Speaker 1: therein remotely approaches an opinion about defendant's ability to commit
• 21:29
  Speaker 1: the crimes.
• 21:30
  Speaker 2: At most, Dr.
• 21:31
  Speaker 1: Orr could testify about her observations about his weak fine
• 21:34
  Speaker 1: motor dexterity and visual motor skills, but without any opinion
• 21:38
  Speaker 1: tying this evidence to his ability to commit the crime,
• 21:41
  Speaker 1: its relevance is lacking and it invites unsupported speculation by
• 21:45
  Speaker 1: the jury about defendant's ability to commit the crime. Additionally,
• 21:50
  Speaker 1: there is again the concern the expert testimony will consume
• 21:53
  Speaker 1: an inordinate amount of time on an issue for which
• 21:56
  Speaker 1: there is no foundation in a trial that will already
• 21:59
  Speaker 1: be lengthy. Weighing this concern against the lack of any
• 22:02
  Speaker 1: probative value further warrants its exclusion under IRE 403 as
• 22:07
  Speaker 1: the state of evidence stands currently. 5.
• 22:10
  Speaker 2: Order.
• 22:11
  Speaker 1: Based on the foregoing state's motion in limine, neuropsychological and
• 22:15
  Speaker 1: psychiatric evidence is granted in part and reserved in part.
• 22:19
  Speaker 1: It is so ordered. This document was signed on April 17,
• 22:23
  Speaker 1: 2025 and it was signed by Judge Hippler. All of
• 22:26
  Speaker 1: the information that goes with this episode can be found
• 22:30
  Speaker 1: in the description box. What's up everyone and welcome back
• 22:33
  Speaker 1: to the program. In this episode, we're headed right back
• 22:36
  Speaker 1: out to Moscow and we're going to take a look
• 22:38
  Speaker 1: at some more court documents. This time, we're going to
• 22:41
  Speaker 1: be taking a look at the defendant's response to the
• 22:44
  Speaker 1: state's motion in limine, neuropsychological and psychiatric evidence. Case number CR01-24-31665.
• 22:50
  Speaker 1: State of Idaho Plaintiff. First, Brian C. Koberger, the defendant,
• 22:59
  Speaker 1: comes now. Brian C. Koberger, by and through his attorneys
• 23:02
  Speaker 1: of record, and hereby responds to the state's motion, in limine,
• 23:06
  Speaker 1: neuropsychological and psychiatric evidence, filed on February 21st, 2025. The
• 23:13
  Speaker 1: state objects to the proposed testimony of Rachel L. Orr
• 23:17
  Speaker 1: and Eileen P. Ryan, arguing that the proposed testimony is
• 23:21
  Speaker 1: outside of the mental condition evidence allowable. under Idaho Code
• 23:25
  Speaker 1: Section 18-2073. This response is made pursuant to due process,
• 23:31
  Speaker 1: IRE 106, for a complete defense and a fair trial
• 23:35
  Speaker 1: guaranteed by the 5th, 6th, and 14th Amendments to the
• 23:39
  Speaker 1: United States Constitution and Article 1, Section 13 of the
• 23:43
  Speaker 1: Idaho Constitution. The minute the jury selection begins, jurors will
• 23:47
  Speaker 1: begin to study and analyze Mr. Koberger's physical presence and
• 23:51
  Speaker 1: They will watch his every move and pass judgment on
• 23:53
  Speaker 1: him every minute of the jury trial simply based on
• 23:56
  Speaker 1: how he looks and reacts to the presentation of certain
• 24:00
  Speaker 1: evidence and comments about him.
• 24:02
  Speaker 2: Mr.
• 24:02
  Speaker 1: Koberger must be able to present testimony to the jury
• 24:05
  Speaker 1: that he has certain physical disorders.
• 24:07
  Speaker 2: It will assist the trier of fact.
• 24:09
  Speaker 1: To know his physical presentation, including nonverbal reactions in the courtroom,
• 24:14
  Speaker 1: is explained by his physical condition. To exclude this evidence
• 24:18
  Speaker 1: will result in unfair bias that could cause a wrongful conviction.
• 24:22
  Speaker 1: This objection is supported by the declaration of Jeffrey Lewine,
• 24:26
  Speaker 1: an expert in neuroscience and neuroimaging.
• 24:29
  Speaker 2: Mr.
• 24:30
  Speaker 1: Koberger in no way suggests that expert testimony related to
• 24:33
  Speaker 1: his autism spectrum disorder, ASD, obsessive compulsive disorder, and developmental
• 24:39
  Speaker 1: coordination disorder are for the purpose of showing that he
• 24:42
  Speaker 1: does not know right from wrong. He has at all
• 24:45
  Speaker 1: times and continues to assert his actual innocence in the case.
• 24:49
  Speaker 1: The state correctly noted in its motion Mr. Kohlberger's disclosure
• 24:52
  Speaker 1: states that Dr. Orr's testimony and Dr. Ryan's testimony is
• 24:57
  Speaker 1: not intended to be mental element defense pursuant to Idaho
• 25:00
  Speaker 1: Code Section 18207, but rather this testimony about the state
• 25:05
  Speaker 1: of mind as well as factual defense testimony to anticipated
• 25:09
  Speaker 1: testimony elicited by the state. Defendants Exhibit D7A, page 3424.
• 25:16
  Speaker 1: Idaho Code Section 18-207 is not limited to the admission
• 25:21
  Speaker 1: of either direct or rebuttal expert testimony to elements of
• 25:25
  Speaker 1: the crime, State v. Samuel 165, Idaho, 2019. Because of
• 25:30
  Speaker 1: the statute's broad application, the Idaho Supreme Court has determined
• 25:34
  Speaker 1: that Idaho Code Section 18-207 applies to legal proceedings before trial,
• 25:40
  Speaker 1: including pretrial motions. The threshold test for the admission of
• 25:43
  Speaker 1: expert testimony is is whether the scientific or other specialized
• 25:47
  Speaker 1: knowledge of the expert will assist the trier of fact
• 25:50
  Speaker 1: to understand the evidence or determine a fact at issue,
• 25:54
  Speaker 1: IRE 702. The function of the expert is to provide
• 25:57
  Speaker 1: testimony that is beyond the common sense, experience, and education
• 26:02
  Speaker 1: of the average juror, State v. Hester 114, Idaho, 688, 1988,
• 26:05
  Speaker 1: where the normal experience and qualifications of lay jurors permit
• 26:07
  Speaker 1: them to draw proper conclusions from giving facts and circumstances,
• 26:16
  Speaker 1: then expert conclusions or opinions are admissible. In this case,
• 26:21
  Speaker 1: it is not the normal experience and qualification of lay
• 26:24
  Speaker 1: jurors to understand ASD, OCD, or Developmental Coordination Disorder. Expert
• 26:30
  Speaker 1: testimony is necessary. Autism Spectrum Disorder The anticipated testimony of Dr.
• 26:36
  Speaker 1: Orr and Dr.
• 26:37
  Speaker 2: Ryan is relevant.
• 26:38
  Speaker 1: To explain that Mr. Koberger's ASD diagnosis is a physical
• 26:42
  Speaker 1: condition and how it presents in his demeanor.
• 26:45
  Speaker 2: Mr.
• 26:46
  Speaker 1: Koberger has met the criteria for the diagnosis since childhood
• 26:50
  Speaker 1: and that is not a convenient diagnosis given his current
• 26:53
  Speaker 1: legal situation and jeopardy. Defendant Exhibit D13B, page 3938. The
• 27:00
  Speaker 1: anticipated testimony of Dr. Orr and Dr. Ryan is relevant
• 27:04
  Speaker 1: to explaining how the behaviors and mannerisms presented by Mr.
• 27:08
  Speaker 1: Koberger are consistent with the individual having ASD. In addition
• 27:13
  Speaker 1: to the opinions of Dr.
• 27:14
  Speaker 2: Orr and Dr.
• 27:15
  Speaker 1: Ryan, the declaration of Dr. Lewine explains that neuroimaging of Mr.
• 27:19
  Speaker 1: Koberger's brain supports the ASD diagnosis. ASD is a neurological
• 27:24
  Speaker 1: disorder that is physical, and while most people ordinarily think
• 27:28
  Speaker 1: of ASD as a mental health condition, it is a
• 27:31
  Speaker 1: neurological and developmental disorder that affects how people interact with others, communicate, learn,
• 27:37
  Speaker 1: and behave. Defendant's Motion to Strike Penalty of Death, Autism
• 27:42
  Speaker 1: Spectrum Disorder, page 4. According to the United States Government
• 27:46
  Speaker 1: National Institute of Mental Health, Autism Spectrum Disorder is a
• 27:50
  Speaker 1: neurological and developmental disorder that affects how people interact with others, communicate, learn,
• 27:56
  Speaker 1: and behave. Autism Spectrum Disorder, National Institute of Mental Health.
• 28:01
  Speaker 1: Last retrieved, March 16, 2025. As a neurological disorder, ASD
• 28:07
  Speaker 1: is associated with structural, and functional, i.e. physical defects in
• 28:11
  Speaker 1: the tissue of the brain that can't be seen when
• 28:14
  Speaker 1: you look at a person, but it can be observed
• 28:16
  Speaker 1: with proper microscopic examination and in some individuals through the
• 28:21
  Speaker 1: use of quantitative analysis of magnetic resonance imaging of the brain,
• 28:25
  Speaker 1: such as the case with Mr. Koberger, see attached declaration
• 28:29
  Speaker 1: of Dr. Jeffrey Lewine. Research on large groups of persons
• 28:33
  Speaker 1: with ASD has indicated the presence of structural differences in
• 28:37
  Speaker 1: the brain of these groups versus those individuals with typical
• 28:41
  Speaker 1: neurobiological development, which also supports the conclusion of NIMH and
• 28:47
  Speaker 1: others that ASD is a neurological disorder.
• 28:51
  Speaker 2: Imaging of Mr.
• 28:51
  Speaker 1: Koberger's brain is reported in Dr. Lewine's attached declaration show
• 28:56
  Speaker 1: findings of structural differences in the physical makeup of his
• 28:59
  Speaker 1: brain in areas commonly associated with the control and expression
• 29:03
  Speaker 1: of behaviors commonly seen in ASD. and listed below as
• 29:08
  Speaker 1: taken from the NIMH website. Symptoms of an actual behavior
• 29:14
  Speaker 1: commonly associated with obsessive compulsive disorder, OCD, are common in
• 29:18
  Speaker 1: people with ASD. As a physical condition, ASD may not
• 29:23
  Speaker 1: be as noticeable as some physical conditions like a missing arm.
• 29:27
  Speaker 2: If Mr.
• 29:27
  Speaker 1: Kohlberger had the physical disability of a missing arm, the
• 29:31
  Speaker 1: jury would not require explanation about how such a physical
• 29:34
  Speaker 1: condition may impact the case. ASD is visible in some ways.
• 29:39
  Speaker 2: That will be.
• 29:40
  Speaker 1: apparent to a jury but requires explanation. Without explanation, the
• 29:44
  Speaker 1: way that the public perceives the behaviors and mannerisms of
• 29:48
  Speaker 1: someone with ASD is not always favorable and may be prejudicial.
• 29:53
  Speaker 1: While Mr. Koberger's presentation is highly consistent with ASD, without
• 29:57
  Speaker 1: explanation others may misinterpret and misidentify Mr. Koberger's behaviors and
• 30:02
  Speaker 1: cast them in a more sinister light. For example, he
• 30:06
  Speaker 1: does not show emotion on his face. He has a
• 30:08
  Speaker 1: flat effect. He sits very still and holds his hands
• 30:11
  Speaker 1: in the same position. He has a piercing stare. He
• 30:14
  Speaker 1: does not show expected reactions. Facial expressions do not reflect
• 30:19
  Speaker 1: what he is feeling. He is stiff in body posture.
• 30:23
  Speaker 1: He has prosody in speech, uses repetitive phrases and large words,
• 30:27
  Speaker 1: and has developed dexterity problems. Many of his behavioral characteristics
• 30:31
  Speaker 1: are known to be commonly associated with the presence of
• 30:34
  Speaker 1: ASD and are clearly relevant to the interpretation of his
• 30:38
  Speaker 1: behavior in the courtroom by the jury and may also
• 30:41
  Speaker 1: be relevant evidence regarding the rebuttal of evidence as to
• 30:44
  Speaker 1: the commission of the crime itself. Further explanation about ASD
• 30:48
  Speaker 1: by the United States Government National Institute of Mental Health
• 30:52
  Speaker 1: is helpful. The NIMH provides the following on its website.
• 30:57
  Speaker 1: The list below gives some examples of of different types
• 30:59
  Speaker 1: of behaviors that are common among people diagnosed with ASD.
• 31:04
  Speaker 1: Not all people with ASD will have all behaviors, but
• 31:07
  Speaker 1: most will have several of the behaviors listed below. Social
• 31:11
  Speaker 1: communication and social interaction behaviors may include making little or
• 31:15
  Speaker 1: inconsistent eye contact, appearing not to look or listen to
• 31:18
  Speaker 1: people who are talking, infrequently sharing interest, emotion, or enjoyment
• 31:23
  Speaker 1: of objects or activities, including infrequently pointing at or showing
• 31:27
  Speaker 1: things to others, not responding or being slow to respond
• 31:31
  Speaker 1: to one's name or other verbal bids for attention, having
• 31:34
  Speaker 1: difficulty with the back and forth of conversation, often talking
• 31:38
  Speaker 1: at length about a subject of interest without considering social
• 31:41
  Speaker 1: cues or a conversational give and take, displaying facial expressions, movements,
• 31:47
  Speaker 1: and gestures that do not match what is being said,
• 31:50
  Speaker 1: having an unusual tone of voice that may sound flat,
• 31:53
  Speaker 1: lacking emotion, or tonal variation, having trouble understanding another person's
• 31:58
  Speaker 1: point of view, or being unable to predict or understand
• 32:01
  Speaker 1: other people's actions, difficulties adjusting behavior to different social situations,
• 32:06
  Speaker 1: difficulties sharing in imaginative play or in making friends. Restrictive
• 32:12
  Speaker 1: repetitive behaviors may include repeating certain behaviors or having unusual behaviors,
• 32:18
  Speaker 1: such as repeating words or phrases, having a lasting intense
• 32:22
  Speaker 1: interest in specific topics, such as numbers, details, or facts,
• 32:27
  Speaker 1: showing overly focused interests, such as with moving objects or
• 32:30
  Speaker 1: with parts of objects, becoming upset by slight changes in
• 32:34
  Speaker 1: a routine, and having difficulty with transitions. Autistic people often
• 32:40
  Speaker 1: have sensory differences, such as being more sensitive or less
• 32:43
  Speaker 1: sensitive than other people to sensory inputs such as light, sound, clothing,
• 32:48
  Speaker 1: or temperature. Based upon a reasoned analysis of discovery provided
• 32:53
  Speaker 1: by the state to date, Mr. Kohlberger's behaviors that are
• 32:56
  Speaker 1: attributed to his ASD and on his list of common
• 33:00
  Speaker 1: behaviors of persons with ASD as provided by the NIMH,
• 33:05
  Speaker 1: along with other behaviors attributable to his neurological condition, must
• 33:09
  Speaker 1: be presented to the jury to confront and rebut certain
• 33:12
  Speaker 1: evidence to be proffered by the state. All right, we're
• 33:15
  Speaker 1: going to wrap up part one right here. And in
• 33:17
  Speaker 1: the next episode, we're going to pick up with obsessive
• 33:20
  Speaker 1: compulsive disorder. All of the information that goes with this episode,
• 33:24
  Speaker 1: including my contact information, can be found in the description box.
• 33:29
  Speaker 1: What's up everyone and welcome back to the program. In
• 33:32
  Speaker 1: this episode, we're going to pick up where we left
• 33:34
  Speaker 1: off with Brian Koberger's response to the state's motion in limine,
• 33:39
  Speaker 1: neuropsychological and psychiatric evidence. Obsessive compulsive disorder, OCD. OCD can
• 33:46
  Speaker 1: be an independent diagnosis, but it also is a set
• 33:49
  Speaker 1: of symptomatic behaviors that are often comorbid in ASD, as
• 33:54
  Speaker 1: with Mr.
• 33:55
  Speaker 2: Kohlberger's ASD.
• 33:57
  Speaker 1: Notable, for example, on the above NIMH list of behavioral
• 34:01
  Speaker 1: issues commonly associated with ASD, Mr. Kohlberger has sleep difficulties
• 34:06
  Speaker 1: and subsequently developed a habit of night driving or running
• 34:10
  Speaker 1: to decompress, such behaviors being present most of his life.
• 34:14
  Speaker 1: He also engages in frequent compulsive hand-washing, wears gloves to
• 34:18
  Speaker 1: avoid germs, has a fear of things getting into his eyes,
• 34:21
  Speaker 1: changes his shower curtain frequently to avoid exposure to mold,
• 34:25
  Speaker 1: and avoids anything he views as contaminating. Look, just to
• 34:29
  Speaker 1: interject real quick, how does that track with somebody that's
• 34:32
  Speaker 1: going to be at crime scenes, picking up all kinds
• 34:34
  Speaker 1: of disgusting evidence? I don't buy any of this. If
• 34:39
  Speaker 1: the state elicits testimony at trial related to these types
• 34:42
  Speaker 1: of facts... that are used to build, circumstantially, the elements
• 34:45
  Speaker 1: of the crime to or show Mr. Koberger's actions as
• 34:48
  Speaker 1: reflecting his state of mind or other elements of the crime,
• 34:52
  Speaker 1: he will refute that evidence through expert testimony as behaviors
• 34:55
  Speaker 1: related to his OCD and his ASD. By the way
• 34:59
  Speaker 1: of specific example, the state has continued to claim that Mr.
• 35:03
  Speaker 1: Koberger was wearing gloves on the night of his arrest
• 35:06
  Speaker 1: and placing trash in baggies. The state asserts that this
• 35:09
  Speaker 1: demonstrates he had a consciousness of guilt and he was
• 35:11
  Speaker 1: trying to either hide his DNA or engage in the
• 35:15
  Speaker 1: cleaning of his car. This is highly prejudicial and misleading.
• 35:19
  Speaker 2: Mr.
• 35:19
  Speaker 1: Koberger frequently wears gloves to avoid germs on surfaces. He
• 35:23
  Speaker 1: was not cleaning his car on the night of his arrest.
• 35:26
  Speaker 1: He was awake at night, as is typical for him,
• 35:29
  Speaker 1: and he was cleaning his bathroom. While testimony related to
• 35:33
  Speaker 1: these topics may not be relevant until the state opens
• 35:36
  Speaker 1: the door, By eliciting testimony on these issues, once it does, Mr.
• 35:40
  Speaker 1: Koberger must be allowed to provide expert testimony refuting the
• 35:44
  Speaker 1: state's witnesses. Such relevant evidence can assist the trier of
• 35:48
  Speaker 1: fact in evaluating circumstantial evidence the state may put forward,
• 35:53
  Speaker 1: and since all such testimony would be subject to vigorous cross-examination,
• 35:57
  Speaker 1: it would clarify and not confuse the jurors. Developmental Coordination
• 36:02
  Speaker 1: Disorder Mr. Koberger suffers from deficits in fine motor dexterity
• 36:07
  Speaker 1: and visual motor function. Clearly, these are physical issues. He
• 36:11
  Speaker 1: has experienced these physical impairments all of his life. The
• 36:15
  Speaker 1: state has disclosed evidence that law enforcement will testify that
• 36:18
  Speaker 1: they did test runs at 1122 King Road and that
• 36:21
  Speaker 1: it's possible to commit four homicides in a time frame
• 36:24
  Speaker 1: of only minutes, including walking to and from a car
• 36:28
  Speaker 1: and removing clothing that would be covered in blood. Additionally,
• 36:32
  Speaker 1: the state has disclosed a forensic pathologist who will testify
• 36:35
  Speaker 1: regarding manner of death, injuries, and specific wounds on the deceased.
• 36:40
  Speaker 2: Mr.
• 36:40
  Speaker 1: Koberger has disclosed a forensic pathologist who has some differing opinions,
• 36:44
  Speaker 1: including injury and specific wounds, on the deceased. It will
• 36:49
  Speaker 1: be relevant for the jury to know that Mr. Koberger
• 36:51
  Speaker 1: has a developmental coordination disorder that impacts his fine motor
• 36:55
  Speaker 1: dexterity and visual motor function. Such speed and coordination are not.
• 36:59
  Speaker 2: Possible for him.
• 37:00
  Speaker 1: Conclusion Mr. Koberger has a right to confront the witnesses
• 37:04
  Speaker 1: and evidence presented by the state and due process under
• 37:07
  Speaker 1: the 5th, 6th, and 14th Amendments to the United States
• 37:10
  Speaker 1: Constitution and Article 1, Section 13 of the Idaho Constitution.
• 37:15
  Speaker 1: This includes presenting evidence to rebut the case against him.
• 37:19
  Speaker 1: The court should deny the state's motion to eliminate, to
• 37:22
  Speaker 1: exclude neuropsychological and psychiatric evidence. More specifically, the court should
• 37:26
  Speaker 1: allow Dr. Orr and Dr. Ryan to testify. The physical
• 37:30
  Speaker 1: disorder of ASD should be allowed at the outset of
• 37:33
  Speaker 1: the trial. Issues related to his OCD symptoms that are
• 37:37
  Speaker 1: an outgrowth of his neurological disorder, aka ASD, see NIMH
• 37:42
  Speaker 1: quotes above, and developmental coordination disorder may depend on the evidence.
• 37:47
  Speaker 2: The state elicits as the trial proceeds.
• 37:50
  Speaker 1: This document was dated March 17th of 2025 and it
• 37:54
  Speaker 1: was signed by Alyssa Massoff. Alright, moving on to the
• 37:58
  Speaker 1: next document. and that is the declaration of Jeffrey Lewine, BS, MS, PhD. I,
• 38:05
  Speaker 1: Jeffrey David Lewine, swear under penalty of perjury that the
• 38:09
  Speaker 1: information in this declaration is true and correct to the
• 38:12
  Speaker 1: best of my knowledge. My name is Jeffrey David Lewine, PhD.
• 38:17
  Speaker 1: I'm over the age of 18, mentally competent, and make
• 38:20
  Speaker 1: this declaration freely based on my own personal knowledge. I
• 38:24
  Speaker 1: have BS, MS, and PhD degrees in neuroscience. from the
• 38:28
  Speaker 1: University of Rochester, plus post-doctoral training in biophysics and neuroscience
• 38:33
  Speaker 1: as a director's fellow at Los Alamos National Laboratory. Over
• 38:38
  Speaker 1: my career, I have held academic appointments in multiple university departments,
• 38:42
  Speaker 1: including appointments in neurology, University of Kansas, University of New Mexico, radiology,
• 38:48
  Speaker 1: University of New Mexico, University of Utah, and psychiatry and
• 38:53
  Speaker 1: behavioral sciences, University of Kansas. I presently hold multiple academic
• 38:59
  Speaker 1: and business-related titles and positions, as outlined below. I'm the
• 39:03
  Speaker 1: CEO and President of Neuroscience Expert Consulting Services of America.
• 39:07
  Speaker 1: NECSOA provides data analysis and consulting.
• 39:13
  Speaker 2: Services, especially with respect to legal proceedings.
• 39:17
  Speaker 1: I am the CEO and CSO of the Center for
• 39:19
  Speaker 1: Advanced Diagnostics Evaluation and Therapeutics. Cadet NM Incorporated is involved
• 39:26
  Speaker 1: in the development and evaluation of novel therapeutics for I
• 39:20
  Speaker 1: am an affiliate professor. of Translational Neuroscience in the Mind
• 39:51
  Speaker 1: Research Network, MRN. MRN is a 501c3 organization initially established
• 39:57
  Speaker 1: through a $ 60 million allocation from the United States Congress.
• 40:02
  Speaker 1: Activities focus on the evaluation of brain structure, function, and
• 40:05
  Speaker 1: health and disease. I hold faculty appointments in the Departments
• 40:09
  Speaker 1: of Neurology and Psychology at the University of New Mexico.
• 40:14
  Speaker 1: Activities include teaching and student and faculty mentoring. I am
• 40:18
  Speaker 1: the director of research for Beyond Barriers Therapeutics, a virtual
• 40:23
  Speaker 1: pharmaceutical company developing novel treatments for TBI alpha virus exposure
• 40:28
  Speaker 1: and organ phosphate poisoning. I am the chief scientific and
• 40:32
  Speaker 1: research officer for the Research and Recognition Project, which has
• 40:36
  Speaker 1: developed a new therapy for PTSD. I have over 30
• 40:40
  Speaker 1: years of experience in the neuroscientific evaluation of the neurobiological
• 40:45
  Speaker 1: status of clients with a wide range of conditions including
• 40:49
  Speaker 1: neurodevelopmental disorders, autism, ADD, ADHD, and reading disorders. Epilepsy, traumatic
• 40:57
  Speaker 1: brain injury, PTSD, and tinnitus. As outlined in my attached
• 41:01
  Speaker 1: CV Exhibit 1, I have co-authored more than 100 scientific
• 41:05
  Speaker 1: articles and book chapters. In support of my work, I
• 41:09
  Speaker 1: have received more than $ 10 million in funding from federal, state,
• 41:13
  Speaker 1: and philanthropic sources, including the National Institutes of Health, and
• 41:17
  Speaker 1: National Science Foundation, and the Department of Defense. This includes
• 41:21
  Speaker 1: almost $ 4 million specifically awarded for my work on neurodevelopmental disorders,
• 41:27
  Speaker 1: including autism. I've been asked by the Defense Council in
• 41:30
  Speaker 1: the matter of the state of Idaho versus Brian Koberger
• 41:34
  Speaker 1: to perform quantitative volumetric analysis of Mr. Koberger's brain and
• 41:39
  Speaker 1: to comment on the neurobiological nature of his various conditions.
• 41:43
  Speaker 1: In formulating my opinions in matters like this, I routinely
• 41:46
  Speaker 1: rely upon my training and experience, the scientific literature and
• 41:50
  Speaker 1: client-related data, and reports collected directly by myself or other professionals,
• 41:56
  Speaker 1: including radiologists, neurologists, psychiatrists, and psychologists. It's my understanding that Mr.
• 42:03
  Speaker 1: Koberger has received several diagnoses for appropriate and qualified doctors.
• 42:08
  Speaker 1: For purposes of this declaration, for this motion, I am
• 42:11
  Speaker 1: addressing only three. It's also my understanding that the state
• 42:28
  Speaker 1: of Idaho has requested that the court issue an order
• 42:32
  Speaker 1: in limine prohibiting defendant from offering testimony regarding neuropsychological evaluation
• 42:38
  Speaker 1: and psychiatric evaluation of the defendant in the guilt-innocence phase
• 42:42
  Speaker 1: of the trial. The state argument relates to Idaho Code
• 42:45
  Speaker 1: Section 18-207, which provides that mental condition shall not be
• 42:50
  Speaker 1: a defense to any charge, criminal conduct, except expert evidence
• 42:54
  Speaker 1: on the issue of any state of mind, which is
• 42:57
  Speaker 1: an element of the offense. Idaho Code 18-207-1 and 3.
• 43:03
  Speaker 1: In considering this, it therefore becomes relevant to distinguish diagnosis
• 43:07
  Speaker 1: and evaluations related to mental versus physical conditions. I have
• 43:12
  Speaker 1: therefore been asked to discuss the relevant scientific evidence with
• 43:15
  Speaker 1: respect to ASD, DCD, and OCD. As an expert neuroscientist,
• 43:21
  Speaker 1: I recognize three general categories of conditions that can impact
• 43:25
  Speaker 1: a person's functional abilities and state of mind. Almost all
• 43:29
  Speaker 1: conditions associated with psychological dysfunction have some neurobiological correlates that
• 43:35
  Speaker 1: impart vulnerabilities, but in most instances these are not immediate
• 43:39
  Speaker 1: causative factors. For example, consider a person who experiences substantive
• 43:45
  Speaker 1: depressive symptoms following a divorce. Unlike major depressive disorder, which
• 43:50
  Speaker 1: has strong neurobiological underpinning, the most likely appropriate diagnosis in
• 43:55
  Speaker 1: this situation would be an adjustment disorder. Adjustment disorders can
• 43:59
  Speaker 1: be associated with some biological dysregulation, but few would argue
• 44:04
  Speaker 1: that adjustment disorder is not a mental condition. In contrast,
• 44:08
  Speaker 1: some state of mind changes clearly reflect physical biological factors.
• 44:13
  Speaker 1: For example, ALS sometimes leads to mental health impairments such
• 44:17
  Speaker 1: as violence and disinhibition. These are most commonly a direct
• 44:21
  Speaker 1: consequence of structural and functional disruption of frontal lobe brain
• 44:25
  Speaker 1: circuits as induced by the ALS. Here the psychological disturbance
• 44:30
  Speaker 1: should not be considered a mental condition as it has
• 44:33
  Speaker 1: clear neurobiological basis separate from extreme psychological factors. Finally, there
• 44:39
  Speaker 1: are some conditions in the gray area with strong neurobiological
• 44:44
  Speaker 1: and psychological underpinning. For example, arachnophobia furis spiders has both
• 44:48
  Speaker 1: biological and psychological underpinnings. It's clearly triggered in relationship to
• 44:54
  Speaker 1: external factors, but it reflects an abnormal biological response of
• 44:59
  Speaker 1: the brain. As outlined by Dr. Orr in Exhibit D7B, Mr.
• 45:04
  Speaker 1: Koberger has multiple diagnostic conditions identified by qualified doctors. In
• 45:09
  Speaker 1: my opinion, these conditions span the range from neurodevelopmental to
• 45:13
  Speaker 1: mental conditions. Herein, I will discuss the subset of three conditions,
• 45:18
  Speaker 1: autism spectrum disorder, developmental coordination disorder, and obsessive-compulsive disorder, which
• 45:24
  Speaker 1: are predominantly neurobiological rather than mental, and relevant to the
• 45:28
  Speaker 1: guilt-innocent phase of the trial. As argued by counsel, references
• 45:32
  Speaker 1: are provided in Exhibit 2. The other conditions may be
• 45:36
  Speaker 1: relevant to a sentencing phase of a trial if this
• 45:39
  Speaker 1: case proceeds that far and therefore will be discussed in
• 45:42
  Speaker 1: a separate report. Autism Spectrum Disorder Level 1 Without Intellectual
• 45:48
  Speaker 1: or Language Impairment Mr. Koberger has a current diagnosis of
• 45:52
  Speaker 1: autism spectrum disorder. On the one hand, his overall level
• 45:56
  Speaker 1: of intellectual function and his general language skills have been
• 46:00
  Speaker 1: adequate to allow him to complete a master's degree, but
• 46:03
  Speaker 1: neuropsychological evaluation reveals deficits in several subdomains, including motor skills,
• 46:09
  Speaker 1: processing speed, and executive function. Perhaps most importantly, he demonstrates
• 46:15
  Speaker 1: substantive impairments in social cognition that date back to early childhood.
• 46:19
  Speaker 1: As noted by Dr. Orr, he demonstrates anomalies in nonverbal communication, e.g.
• 46:25
  Speaker 1: poor integration, of verbalizations and eye contact, limited use of
• 46:29
  Speaker 1: descriptive gestures, restricted range of effect, and atypical tone, poor
• 46:34
  Speaker 1: social-emotional reciprocity, e.g. self-focused conversation, awkward interaction, limited perspective talking,
• 46:41
  Speaker 1: limited sharing of effect, emotions of others, and impaired relationships, e.g.
• 46:46
  Speaker 1: superficial and logical descriptions of relationships, poor insight into his
• 46:52
  Speaker 1: role in relationships, all consistent with autistic patterns. Whereas most
• 46:57
  Speaker 1: patients with autism spectrum disorder, ASD, demonstrate intellectual and language impairments,
• 47:03
  Speaker 1: it's well established that there is a significant minority of
• 47:06
  Speaker 1: patients like Brian where the dominant dysfunction is selectively seen
• 47:10
  Speaker 1: with respect to social cognition. In part, this likely reflects
• 47:14
  Speaker 1: the neurobiological reality of relatively distinct brain networks for language
• 47:19
  Speaker 1: versus social skills. Whereas there was a brief period of
• 47:23
  Speaker 1: history where autism was thought to be a psychological response
• 47:27
  Speaker 1: to environmental factors, e.g. refrigerator parents, for more than half
• 47:31
  Speaker 1: a century, it has been almost universally recognized to have
• 47:35
  Speaker 1: a strong biological basis. Indeed, although ASD diagnostic criteria are
• 47:41
  Speaker 1: most formally described within the DSM-V, Diagnostic and Statistical Manual
• 47:46
  Speaker 1: of Mental Disorders, the DSM clearly indicates the ASD to
• 47:50
  Speaker 1: be a neurodevelopmental disorder. Evidence that the ASDs are of
• 47:55
  Speaker 1: a neurodevelopmental and physical biological origin and not a mental
• 48:00
  Speaker 1: condition caused by external psychological factors or events comes from
• 48:04
  Speaker 1: several sources including timeline of development with typical onset prior
• 48:09
  Speaker 1: to three years of age with many parents recognizing signs
• 48:12
  Speaker 1: as early as six months of age. Very strong Heritability
• 48:17
  Speaker 1: estimated concordance in identical twins 60%, with some chromosomal abnormalities
• 48:23
  Speaker 1: leading to very high incidence of comorbid autism. High comorbidity
• 48:29
  Speaker 1: with other clearly neurobiological conditions, including epilepsy. More than 30%
• 48:35
  Speaker 1: of people with ASD experience seizures by adolescence, and upwards
• 48:38
  Speaker 1: of 60% show epileptiform.
• 48:42
  Speaker 2: Activity on EEG.
• 48:44
  Speaker 1: Strong evidence of brain abnormalities through autopsy imaging, electrophysiology, and
• 48:50
  Speaker 1: neurochemical assessments. For Brian specifically, there is objective evidence of
• 48:55
  Speaker 1: disrupted brain structure in several nodes of the social network.
• 48:59
  Speaker 1: As outlined in detail in Exhibit 3, volumetric analysis of
• 49:03
  Speaker 1: magnetic resonance imaging data for Brian's brain reveals several brain
• 49:08
  Speaker 1: areas to demonstrate volume within the lowest 10th percentile. as
• 49:12
  Speaker 1: compared to all sex and age range plus five years,
• 49:16
  Speaker 1: match neurotypical control subjects drawn from a normative database of
• 49:20
  Speaker 1: over 10,000 subjects. Of particular relevance is evidence of reduced
• 49:24
  Speaker 1: volume of the left and right fusiform gyri, the left
• 49:28
  Speaker 1: and right orbital frontal area, and the left temporal pole,
• 49:32
  Speaker 1: and the right anterior cingulate area, all regions within the
• 49:36
  Speaker 1: brain social network, The fusiform, especially of the right, is
• 49:40
  Speaker 1: especially important for the recognition and evaluation of the emotional
• 49:44
  Speaker 1: characteristics of faces. The orbital frontal cortex plays a key
• 49:48
  Speaker 1: role in the emotional regulation of behavior. The temporal pole
• 49:52
  Speaker 1: plays a crucial role in social and emotional processing, especially
• 49:57
  Speaker 1: with respect to the integration of complex perceptual inputs and
• 50:01
  Speaker 1: visceral emotional responses. The anterior cingulate is critical for social decision-making.
• 50:07
  Speaker 1: and supporting empathy, pro-social behavior, and processing information about others' motivations.
• 50:13
  Speaker 1: Developmental Coordination Disorder DCD is a neurodevelopmental condition that can
• 50:19
  Speaker 1: occur with but which is distinct from the ASDs. Also
• 50:23
  Speaker 1: known as Dyspraxia DCD is characterized as by impairments in
• 50:28
  Speaker 1: the development of motor coordination including dexterity, limb speed, and
• 50:33
  Speaker 1: gross and fine motor skills. Like the ASDs, dyspraxia has
• 50:38
  Speaker 1: high heritability on the order of 70%, a strong indication
• 50:42
  Speaker 1: of biological etiology. DCD is associated with structural and functional
• 50:47
  Speaker 1: disruption of motor control and coordination networks with minimum modulation
• 50:52
  Speaker 1: by psychological factors. It is noteworthy that Brian continues to
• 50:56
  Speaker 1: show evidence of significant motor and coordination issues as revealed
• 51:00
  Speaker 1: through formal testing with Dr. Orr. Obsessive Compulsive Disorder with
• 51:05
  Speaker 1: Absent Insight Brian reportedly developed compulsive hand-washing behaviors as a
• 51:10
  Speaker 1: young child, a fear of getting things in his eyes,
• 51:13
  Speaker 1: and avoidance of germs. There is substantial evidence that OCD
• 51:17
  Speaker 1: is primarily a neurobiological disorder, although it is not necessarily
• 51:21
  Speaker 1: a neurodevelopmental disorder. Evidence supports for its biological basis include
• 51:27
  Speaker 1: a large study of over 15,000 twin pairs indicates the
• 51:31
  Speaker 1: heritability of OCD to by about 47%. OCD can actually
• 51:37
  Speaker 1: be caused by certain viral infections, including strep infection, which
• 51:41
  Speaker 1: can lead to autoimmune condition pandas. Imaging studies also demonstrate
• 51:46
  Speaker 1: a clear neurobiology for OCD with disruption of the corticostriato-thalamo-cortical
• 51:53
  Speaker 1: loop Importantly, this loop includes the anterior cingulate and orbital
• 51:57
  Speaker 1: frontal cortices, regions and overlaps with the neurobiology of ASDs,
• 52:03
  Speaker 1: and which were found to be disrupted on Brian's MRI.
• 52:06
  Speaker 1: The severity and timing of OCD behavior is admittedly partly
• 52:10
  Speaker 1: influenced by psychological factors, including stress. Also, the specific nature
• 52:15
  Speaker 1: of each person's obsessions and compulsions probably relate to learned
• 52:19
  Speaker 1: factors rather than core neurobiology. In general, OCD is not
• 52:24
  Speaker 1: considered to be neurodevelopmental condition per se, but it is
• 52:27
  Speaker 1: biological in nature, and in Brian's case, manifested early in development.
• 52:32
  Speaker 1: In summary, based on my training, experience, review of the
• 52:35
  Speaker 1: scientific literature, and the available data and reports on Mr. Koberger,
• 52:39
  Speaker 1: I believe that the conditions discussed above are a clear
• 52:43
  Speaker 1: neurobiological and physical etiology. Brian's developmental coordination disorder and autism
• 52:49
  Speaker 1: spectrum disorder are specifically neurodevelopmental. neurodevelopmental conditions with physical origins
• 52:55
  Speaker 1: in his brain, structure, and function. His OCD also has
• 52:59
  Speaker 1: predominantly neurobiological basis, although it's modulated by psychological factors. This
• 53:05
  Speaker 1: document was signed on March 16, 2025, and it was
• 53:10
  Speaker 1: signed by Dr. Lewine. All of the information that goes
• 53:13
  Speaker 1: with this episode, including my contact information, can be found
• 53:17
  Speaker 1: in the description box.