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Mega Edition: Bryan Kohberger An The Bushy Eye Brow Motions (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 spinning right back up to Moscow and
• 0:05
  Speaker 1: we're going to take a look at the order on
• 0:07
  Speaker 1: defendant's motion in Limonet, witness identification by bushy eyebrows. Case
• 0:13
  Speaker 1: number CR 01-24-31665 State of Idaho Plaintiff 1st Brian C. Kohlberger,
• 0:22
  Speaker 1: the defendant 1. Introduction DM, a roommate of the victims
• 0:28
  Speaker 1: in this case was the sole eyewitness to the intruder
• 0:31
  Speaker 1: believed to have carried out the homicides at 1122 King Road.
• 0:35
  Speaker 1: During her interviews with law enforcement and at a preliminary
• 0:38
  Speaker 1: hearing in this matter, DM described the intruder as having
• 0:42
  Speaker 1: bushy eyebrows. Defendant moves in limine to exclude any evidence
• 0:46
  Speaker 1: at trial referencing bushy eyebrows, arguing DM's description is unreliable
• 0:51
  Speaker 1: and therefore irrelevant and or barred by IRE 403. The
• 0:56
  Speaker 1: state responds that DM's description is based on her personal knowledge,
• 1:00
  Speaker 1: is relevant, and there is no basis for an exclusion.
• 1:04
  Speaker 1: Oral argument on the motion was held on April 9, 2025,
• 1:08
  Speaker 1: after which the court took the matter under advisement. The
• 1:11
  Speaker 1: court concludes that DM's description of the suspect's eyebrows is admissible,
• 1:16
  Speaker 1: to standard. The question of whether evidence is relevant, one
• 1:19
  Speaker 1: of law, while the decision to admit relevant evidence is discretionary.
• 1:24
  Speaker 1: State v. Schutz 143, Idaho 200-02. 2006. On discretionary matters,
• 1:31
  Speaker 1: the trial court must 1. Correctly perceive the issue as
• 1:35
  Speaker 1: one of discretion. 2. Act within the outer boundaries of
• 1:38
  Speaker 1: its discretion. 3. Act consistently with the legal standards applicable
• 1:43
  Speaker 1: to the specific choices available to it. And 4. Reach
• 1:47
  Speaker 1: its decision by the exercise of reason. Lumberg v. My
• 1:51
  Speaker 1: Fun Life, Idaho 856. 2018. Three facts. On November 13th, 2022,
• 1:59
  Speaker 1: sometime before 419 AM, DM observed a person inside her residence,
• 2:04
  Speaker 1: which she shared with her four roommates at 1122 King Road.
• 2:09
  Speaker 1: DM placed several phone calls and sent several text messages
• 2:12
  Speaker 1: to her roommates, ID, the only roommate who responded was BF,
• 2:17
  Speaker 1: who resided in a downstairs bedroom. They had two short
• 2:21
  Speaker 1: phone conversations and exchanged texts. Within those phone calls and
• 2:24
  Speaker 1: text messages, DM relayed to BF that she saw a
• 2:28
  Speaker 1: person in the residence wearing black and he had on
• 2:30
  Speaker 1: a ski mask that covered his forehead and his mouth.
• 2:34
  Speaker 1: That same day at approximately 11.56 a.m., a 911 call
• 2:38
  Speaker 1: was placed from 1122 King Road for a reported unresponsive female.
• 2:44
  Speaker 1: Moscow Police Department responded to the scene and Officer Mitch
• 2:47
  Speaker 1: Nunez took a statement from DM and she told Officer Nunez,
• 2:52
  Speaker 1: She saw a male, not insanely tall, wearing all black,
• 2:55
  Speaker 1: and a mask that was just covering his forehead and mouth. Later,
• 2:59
  Speaker 1: DM repeated the description, he was a little bit taller
• 3:01
  Speaker 1: than me, I couldn't really see much of him, and
• 3:04
  Speaker 1: I'm almost positive that he was wearing a full black outfit,
• 3:07
  Speaker 1: and he had this mask that was just over his
• 3:09
  Speaker 1: forehead and over his mouth. DM gave the description a
• 3:13
  Speaker 1: third time, repeating he had a mask, he was an
• 3:16
  Speaker 1: inch or two taller than her, he was a basketball
• 3:18
  Speaker 1: player kind of skinny, and a voice she did not recognize.
• 3:22
  Speaker 1: ID at 318323. DM also told Detective Nunes, she was
• 3:28
  Speaker 1: kind of in and out of it because I was
• 3:30
  Speaker 1: so scared and I was really, I was really tired.
• 3:34
  Speaker 1: She did not mention anything during the interview about the
• 3:36
  Speaker 1: intruder's eyebrows. At approximately 1.47, that same day, DM was
• 3:42
  Speaker 1: interviewed at the Moscow Police Department by Detective Lawrence Mowry.
• 3:46
  Speaker 1: During this interview, DM reported that she saw a white
• 3:48
  Speaker 1: male she did not know, maybe my height, a few
• 3:51
  Speaker 1: inch taller, skinny, athletic built, wearing all black, wearing this
• 3:56
  Speaker 1: mask that covers just his forehead and here. Regarding his height,
• 3:59
  Speaker 1: she reported, I'm 5'10, so he's probably around 6 foot.
• 4:04
  Speaker 1: She responded, no, when asked if she saw what color
• 4:06
  Speaker 1: his eyebrows were, and added, I don't remember what his
• 4:09
  Speaker 1: eyes look like either. But, she saw his eyes, and
• 4:13
  Speaker 1: he was definitely a white guy. She again mentioned she
• 4:16
  Speaker 1: was in and out of it, because she was tired
• 4:18
  Speaker 1: and explained everything was kind of blurry. I, like, don't
• 4:21
  Speaker 1: fully remember it, I would say. Four days later, DM
• 4:25
  Speaker 1: was interviewed by Idaho State Police Detective Victoria Gooch and
• 4:30
  Speaker 1: MPD Captain Dustin Blaker. DM gave a detailed recounting of
• 4:34
  Speaker 1: what she did on Saturday, November 12, 2022, until when
• 4:38
  Speaker 1: she went to bed at approximately 3.20 a.m. on Sunday,
• 4:42
  Speaker 1: November 13, 2022. She stated that sometime between 4 a.m.
• 4:47
  Speaker 1: and 4.20 a.m., she woke up and heard Amel's voice.
• 4:50
  Speaker 1: She did not recognize, say, it's okay, I'm going to
• 4:53
  Speaker 1: help you. She said that at the time, she was
• 4:57
  Speaker 1: out of it and probably still tipsy, and I believe
• 5:00
  Speaker 1: I was also very drunk. DM opened the door and
• 5:04
  Speaker 1: saw someone explaining, and I don't know how I knew
• 5:07
  Speaker 1: it was someone because it, from my mind, it's like
• 5:10
  Speaker 1: I was almost wearing these like blurry glasses. Like it's
• 5:13
  Speaker 1: fuzzy and cloudy, but it was like a figure of
• 5:16
  Speaker 1: someone wearing all black. And it was like they had
• 5:19
  Speaker 1: a ski mask that was covering their forehead and their
• 5:21
  Speaker 1: chin and mouth. But I could see. All I remember
• 5:25
  Speaker 1: was seeing their eyebrows. And I don't. I don't remember
• 5:28
  Speaker 1: what their eyes look like, but I remember their eyebrows.
• 5:31
  Speaker 1: I don't remember the color their eyebrows were. I just
• 5:33
  Speaker 1: remember like bushy eyebrows. That's all I could think about.
• 5:37
  Speaker 1: DM described the white male as a skinny tone, that
• 5:40
  Speaker 1: basketball kind of type. ID at 76, 2 and 3.
• 5:44
  Speaker 1: DM stated she was 5 foot 10, so she thought
• 5:47
  Speaker 1: the male was around 5'10 and then 6 foot, somewhere
• 5:50
  Speaker 1: around there. ID at 76, 8 through 10. DM stated
• 5:54
  Speaker 1: the male was approximately 3 feet from her when she
• 5:58
  Speaker 1: was standing, but added, that could be off because I, obviously, probably,
• 6:03
  Speaker 1: was still a little bit drunk. I just woke up
• 6:05
  Speaker 1: and I don't remember fully. She reiterated, I know that
• 6:10
  Speaker 1: he looked at me because I could see his eyebrows.
• 6:12
  Speaker 1: I think, I think just, I think I just saw
• 6:14
  Speaker 1: one eyebrow. I don't know why or how. DM then
• 6:17
  Speaker 1: recounted calling and texting her roommate BF that there was
• 6:21
  Speaker 1: someone in the house wearing all black and a ski mask.
• 6:24
  Speaker 1: DM conveyed to the interviewers that she did not know
• 6:27
  Speaker 1: for sure if it fully happened. I don't know if
• 6:30
  Speaker 1: my mind's like making up stuff. It just doesn't make
• 6:33
  Speaker 1: sense to me and I don't know how to fully
• 6:35
  Speaker 1: explain it, I guess. ID at 92, 10 through 18.
• 6:40
  Speaker 1: Detective Gooch explained to DM that the most important thing
• 6:43
  Speaker 1: was to tell only the things she knew were true,
• 6:46
  Speaker 1: and DM agreed. DM also agreed that she was traumatized
• 6:50
  Speaker 1: and it could affect her memory. Detective Gooch also asked
• 6:53
  Speaker 1: DM if she suffered from anxiety. DM responded that she
• 6:57
  Speaker 1: did and added that she had a lot of lucid
• 6:59
  Speaker 1: dreams of being like kidnapped or chased. She also indicated
• 7:03
  Speaker 1: she would watch Criminal Minds and fall asleep to crime podcasts.
• 7:07
  Speaker 1: Detective Gooch and Captain Blaker then sought to reconfirm the
• 7:10
  Speaker 1: facts from DM's memory. DM reiterated that she saw a
• 7:13
  Speaker 1: male figure in the hallway, approximately three feet from her.
• 7:17
  Speaker 1: He was holding something. He was wearing all black clothes.
• 7:20
  Speaker 1: His forehead was covered. He was wearing a mask. She
• 7:23
  Speaker 1: remembered his eyebrows. ID at 96, 18 through 24, 97, 3, 105,
• 7:26
  Speaker 1: 18 through 25. Captain Blaker asked what was covering his
• 7:28
  Speaker 1: face and DM stated, I don't know. Weird looking ski mask.
• 7:37
  Speaker 1: It wasn't like the regular ski mask with like eyes
• 7:39
  Speaker 1: and you know, because I saw his eyebrows. And I could,
• 7:42
  Speaker 1: I think, see his nose and like part of his face,
• 7:45
  Speaker 1: but I don't know. ID at 105-22-1061. She stated that
• 7:51
  Speaker 1: she cannot see the male's mouth and did not remember
• 7:54
  Speaker 1: if she saw his nose, but confirmed I know I
• 7:56
  Speaker 1: saw his eyebrows and I don't remember his eyes. I
• 7:59
  Speaker 1: just feel like I can see eyebrows, but I mean,
• 8:01
  Speaker 1: that could be it. I mean, that would make sense
• 8:04
  Speaker 1: why the forehead was covered and this part of his
• 8:06
  Speaker 1: face was covered. The investigators inquired if DM could provide
• 8:10
  Speaker 1: a composite for an artist, but she said she could not. Again,
• 8:13
  Speaker 1: she reiterated she did not remember what his eyes looked like.
• 8:17
  Speaker 1: I don't remember what his nose looked like. I just
• 8:19
  Speaker 1: remember eyebrows. I don't know exactly what the eyebrows look
• 8:23
  Speaker 1: like at all really. I just remember thinking like eyebrows,
• 8:26
  Speaker 1: yeah bushy, but that's all. Like I don't remember the shape.
• 8:30
  Speaker 1: I don't remember like the color. I just remember like
• 8:32
  Speaker 1: bushy eyebrows. That's the only thing that I can remember.
• 8:36
  Speaker 1: On November 13th and November 19th of 2022, law enforcement
• 8:41
  Speaker 1: took photos of DM's bedroom. On the wall, there were
• 8:44
  Speaker 1: many magazines and photos and drawn pictures pinned to corkboards.
• 8:48
  Speaker 1: The drawings were of human faces with an emphasis on
• 8:51
  Speaker 1: eyes and eyebrows. Some of the eyebrows are heavy. Defendants
• 8:55
  Speaker 1: exhibit four and five. On December 1st, 2022, 18 days
• 9:00
  Speaker 1: after her first interview, DM was interviewed by forensic interviewer
• 9:04
  Speaker 1: Erin Williamson. DM gave a detailed accounting of her day
• 9:07
  Speaker 1: on Saturday, November 12, 2022, until she went to bed
• 9:11
  Speaker 1: on Sunday, November 13, 2022. Defense Exhibit 7, pages 19
• 9:17
  Speaker 1: and 20. DM reported that she heard a man's voice,
• 9:20
  Speaker 1: and it wasn't Ethan's. It was like, it's okay, I'm
• 9:23
  Speaker 1: going to help you. Defense Exhibit 7, at 32, 9-15.
• 9:29
  Speaker 1: DM stated that she saw all black figure about my height,
• 9:33
  Speaker 1: maybe a few inches taller, skinny build, wearing a mask.
• 9:38
  Speaker 1: DM again stated, I saw like, I don't remember if
• 9:40
  Speaker 1: it was just like one eyebrow or two, but it
• 9:43
  Speaker 1: was just like this bushy eyebrow. She described texting BF
• 9:48
  Speaker 1: about a guy in all black and described the ski
• 9:50
  Speaker 1: mask stating, I couldn't see any of his hair, but
• 9:53
  Speaker 1: I remember just like seeing like, it was like almost rectangular, Like,
• 9:57
  Speaker 1: not the circle ones. It was just rectangular. because I
• 10:00
  Speaker 1: remember seeing like just like I don't know how to
• 10:02
  Speaker 1: explain it just seeing like this maybe I'd be able
• 10:05
  Speaker 1: to see like across but I don't remember seeing his
• 10:08
  Speaker 1: eyes but I feel like his eyes were there I
• 10:11
  Speaker 1: could just see like an eyebrow I feel like that's
• 10:13
  Speaker 1: how I know he saw me because I could see
• 10:15
  Speaker 1: his eyebrow like if I can see his eyebrow he
• 10:18
  Speaker 1: can see me She reiterated, from what I remember, I
• 10:22
  Speaker 1: think he was like just like walking past that little
• 10:26
  Speaker 1: wall and going towards the kitchen. And I don't know,
• 10:28
  Speaker 1: like I just remember seeing an eyebrow. I don't know
• 10:31
  Speaker 1: why I just seen one. I was just like one
• 10:34
  Speaker 1: bushy eyebrow. I don't remember the color, like the full shape.
• 10:38
  Speaker 1: I just remember them being bushy. DM also drew a
• 10:42
  Speaker 1: mask for the interviewer. While drawing, she gave a consistent
• 10:45
  Speaker 1: description of the mask and noted the eyebrows. I don't
• 10:48
  Speaker 1: remember if I saw one or two. Like it was,
• 10:50
  Speaker 1: it was weird. DM explained that she had scary lucid
• 10:53
  Speaker 1: dreams and she would always know she was dreaming. When
• 10:58
  Speaker 1: she saw the intruder, however, she did not fully understand
• 11:01
  Speaker 1: whether it was a dream or not. She also indicated
• 11:05
  Speaker 1: that when she first saw the intruder, she thought he
• 11:08
  Speaker 1: might be a fireman. Alright, we're going to wrap up
• 11:10
  Speaker 1: the first episode right here. And in the next episode,
• 11:13
  Speaker 1: we're going to pick up where we left off, and
• 11:14
  Speaker 1: that's DM also drew the mask for the interviewer. All
• 11:19
  Speaker 1: of the information that goes with this episode can be
• 11:21
  Speaker 1: found in the description box. What's up, everyone, and welcome
• 11:25
  Speaker 1: back to the program. In this episode, we're picking up
• 11:28
  Speaker 1: where we left off with Judge Hippler's order in regards
• 11:31
  Speaker 1: to bushy eyebrows. On December 29th, 2022, defendant was arrested
• 11:37
  Speaker 1: in Albrightville, Pennsylvania. The following day on December 30th, 2022,
• 11:41
  Speaker 1: 47 days after her first interview, DM was interviewed by
• 11:45
  Speaker 1: Idaho State Police detectives. They asked DM whether she had
• 11:49
  Speaker 1: seen a picture of the defendant. She stated that she
• 11:52
  Speaker 1: had seen the mugshot, but she had no clue whether
• 11:55
  Speaker 1: defendant was the person that she saw in her house.
• 11:57
  Speaker 1: She explained, from what I remember, I just remember seeing
• 12:01
  Speaker 1: this figure that was like, not fat, obviously, but more
• 12:04
  Speaker 1: of like the skinnier tone build and some mask on.
• 12:09
  Speaker 1: I don't know what the mask exactly was. But when
• 12:11
  Speaker 1: I thought about it, it was like covering here and here.
• 12:14
  Speaker 1: I don't know if it was covering his mouth, his
• 12:16
  Speaker 1: nose or below his nose and mouth. I just remember
• 12:18
  Speaker 1: knowing that he was white, but I didn't know how
• 12:21
  Speaker 1: he was white. I just knew he was. And this
• 12:24
  Speaker 1: knowing there is like I knew he had to look
• 12:27
  Speaker 1: at me because of the bushy eyebrow. That's all I remember.
• 12:30
  Speaker 1: But I have no idea what he looked like. I
• 12:32
  Speaker 1: don't like when I looked at his picture. Nothing came
• 12:35
  Speaker 1: back to me at all. So that like, I don't know.
• 12:38
  Speaker 1: I feel like if I saw that, my mind would
• 12:40
  Speaker 1: be like, oh yeah, that's him. But it just, I
• 12:43
  Speaker 1: don't remember at all. When asked whether, she told BF,
• 12:47
  Speaker 1: the male had a big nose, DM stated, all I remember,
• 12:50
  Speaker 1: but I don't remember big nose at all, like at all.
• 12:53
  Speaker 1: That's like all I remember, is like some bushy eyebrows,
• 12:56
  Speaker 1: and all black, and some sort of mask. But it
• 12:58
  Speaker 1: wasn't like one of those circle, ski masks, that's all
• 13:01
  Speaker 1: I remember. On May 15th, 2023, DM testified at the
• 13:05
  Speaker 1: grand jury proceeding, for the above titled matter, Regarding November 13th, 2022,
• 13:11
  Speaker 1: DM testified, she woke up at around 4 a.m. to noises.
• 13:16
  Speaker 1: She testified she opened her door and heard a man's
• 13:18
  Speaker 1: voice say, it's okay, I'm going to help you. And
• 13:21
  Speaker 1: I didn't know who the man's voice was. DM testified
• 13:24
  Speaker 1: she opened her door again and saw a figure in
• 13:26
  Speaker 1: all black, which I believe was a person. I knew
• 13:30
  Speaker 1: the person was white. I don't know how, but I
• 13:32
  Speaker 1: just knew it. Knew it was male. I think I
• 13:34
  Speaker 1: knew that because of the voice. The person was around
• 13:37
  Speaker 1: my height. or a few inches taller, and then I
• 13:40
  Speaker 1: knew his build wasn't like scrawny, and he wasn't fat,
• 13:43
  Speaker 1: so I figured it was like the basketball-toned lean build.
• 13:47
  Speaker 1: Regarding what the person was wearing, DM testified, there was
• 13:50
  Speaker 1: like from what I think I remember, it was like
• 13:53
  Speaker 1: all black, almost like a ski mask, but not, it
• 13:56
  Speaker 1: just like covered the head, and then maybe up to
• 13:58
  Speaker 1: the mouth, maybe more. I can't remember if it covered
• 14:01
  Speaker 1: just the chin, the mouth, or the nose, or lower.
• 14:04
  Speaker 1: She said his clothing was all black. Well, the thing
• 14:08
  Speaker 1: I can really remember was something about bushy eyebrows. I
• 14:11
  Speaker 1: don't remember seeing anything else. Just something about a bushy eyebrow. 4.
• 14:16
  Speaker 1: Analysis A. DM's testimony satisfies IRE 601 and IRE 602.
• 14:23
  Speaker 1: Defendant first suggests that DM is not competent and or
• 14:26
  Speaker 1: lacks personal knowledge to testify about bushy eyebrows because her
• 14:30
  Speaker 1: testimony is not reliable under the Mason-Biggers balancing test, a
• 14:34
  Speaker 1: test that is applied when determining whether whether witness identification
• 14:38
  Speaker 1: is reliable or whether it was the product of police suggestiveness.
• 14:42
  Speaker 1: Wordman v. State, 161, Idaho, 2017. Defendant points out that
• 14:48
  Speaker 1: DM's opportunity to see the intruder in her home was
• 14:51
  Speaker 1: seconds at most, her attention was influenced by sleepiness and alcohol,
• 14:56
  Speaker 1: and she constantly questioned what she saw. Defendant argues DM's
• 15:00
  Speaker 1: description of the physical characteristics of the intruder were general
• 15:03
  Speaker 1: in nature and could fit millions of individuals. Defendant also
• 15:07
  Speaker 1: notes that while he does not have bushy eyebrows, the
• 15:11
  Speaker 1: artwork on her wall displays individuals with prominent eyebrows. As
• 15:16
  Speaker 1: the state notes, however, the Mason-Biggers test does not apply
• 15:19
  Speaker 1: here because DM did not make an identification of defendant
• 15:22
  Speaker 1: and her descriptions were not the result of the use
• 15:25
  Speaker 1: of law enforcement identification techniques. In fact, the sole instance
• 15:29
  Speaker 1: when DM was asked to identify defendant was when she
• 15:32
  Speaker 1: was shown his mugshot after his arrest. She responded she
• 15:36
  Speaker 1: had no clue whether it was the person that she saw.
• 15:40
  Speaker 1: Not to be deterred, defendant alternatively argues that the court
• 15:44
  Speaker 1: should find Diem unreliable based on scientific rules that explain
• 15:48
  Speaker 1: the fragility and inaccuracy of memory. The court finds no
• 15:52
  Speaker 1: basis to do so. As a general matter, every person
• 15:55
  Speaker 1: is competent to be a witness. IRE 601 Incompetency, which
• 16:00
  Speaker 1: is determined by the court, applies to persons... whom the
• 16:03
  Speaker 1: court finds are incapable of receiving just impressions of the
• 16:06
  Speaker 1: facts about which they are examined or relating them accurately.
• 16:10
  Speaker 1: IRE 601A. Additionally, a witness may testify to a matter
• 16:15
  Speaker 1: only if evidence is introduced sufficient to support a finding
• 16:18
  Speaker 1: that the witness has personal knowledge of the matter. Diem
• 16:22
  Speaker 1: was a direct witness in this case. As the factual
• 16:25
  Speaker 1: recitation sets forth in detail, Diem's account of what she
• 16:28
  Speaker 1: saw and physical characteristics of the intruder were remarkably consistent
• 16:33
  Speaker 1: throughout all five interviews and her grand jury testimony. While
• 16:37
  Speaker 1: she did not mention his eyebrows in her initial interview,
• 16:39
  Speaker 1: she thereafter identified the bushy eyebrows on multiple occasions as
• 16:44
  Speaker 1: something that firmly stuck out in her mind. Although she
• 16:47
  Speaker 1: might have been intoxicated or tired or questioned her memory,
• 16:51
  Speaker 1: the consistency of her descriptions suggests a high degree of reliability.
• 16:55
  Speaker 1: While defendant may cross-examine DM about his concerns with her memory,
• 17:00
  Speaker 1: His challenges to her competency and personal knowledge as a
• 17:03
  Speaker 1: basis for exclusion are unfounded. B. There's no basis under
• 17:08
  Speaker 1: IRE 403 to exclude DM's testimony. Defendant next asserts DM's
• 17:13
  Speaker 1: testimony about bushy eyebrows must be excluded under IRE 403,
• 17:18
  Speaker 1: which permits exclusion of relevant evidence if its probative value
• 17:22
  Speaker 1: is substantially outweighed by the danger of unfair prejudice, confusion
• 17:26
  Speaker 1: of the issues, or misleading the jury against or by
• 17:29
  Speaker 1: considerations of undue delay, or a waste of time, or
• 17:32
  Speaker 1: needless presentation of cumulative evidence. IRE 403 Specifically, defendant points
• 17:39
  Speaker 1: out DM could not provide enough details about the intruder
• 17:42
  Speaker 1: to provide a description to a composite artist. He asserts
• 17:46
  Speaker 1: that to allow her to testify about bushy eyebrows would
• 17:49
  Speaker 1: confuse the issues and result in unfair prejudice because of
• 17:53
  Speaker 1: the danger the jury will believe he is guilty due
• 17:56
  Speaker 1: to his eyebrows. However, DM's testimony about bushy eyebrows is
• 18:00
  Speaker 1: highly relevant in the case. DM is the only witness
• 18:04
  Speaker 1: in the intruder responsible for the homicides. It's the jury's
• 18:07
  Speaker 1: task to determine whether the defendant is that person. Further,
• 18:12
  Speaker 1: there's nothing confusing about her testimony. Her descriptions of the
• 18:15
  Speaker 1: bushy eyebrows have been consistent and clear. While she could
• 18:19
  Speaker 1: not provide enough details for a composite sketch, it's unsurprising
• 18:22
  Speaker 1: given her observation that the intruder was wearing a mask
• 18:25
  Speaker 1: on his face. Moreover, while this description might or might
• 18:29
  Speaker 1: not implicate defendant, it will not result in unfair prejudice.
• 18:33
  Speaker 1: Unfair prejudice arises only when the evidence has an undue
• 18:37
  Speaker 1: tendency to suggest a decision on an improper basis and
• 18:40
  Speaker 1: appeals to the juror's sympathies, arouses their sense of horror,
• 18:44
  Speaker 1: provokes their instincts to punish, or otherwise causes the jury
• 18:48
  Speaker 1: to base its decision on something other than established propositions
• 18:51
  Speaker 1: in the case. State v. Russo, 157 Idaho, 299-309 2014.
• 18:59
  Speaker 1: DM's description of the intruder having bushy eyebrows will not
• 19:02
  Speaker 1: reasonably compel a jury to find defendant guilty simply because
• 19:06
  Speaker 1: he may have similar eyebrows. There's a large gulf between
• 19:09
  Speaker 1: a finding that a witness is not competent to testify
• 19:12
  Speaker 1: about what they personally witnessed and simply allowing impeachment by
• 19:16
  Speaker 1: vigorous cross-examination. This is a matter for cross-examination by defendant
• 19:21
  Speaker 1: and concerns with DM's ability to perceive and remember what
• 19:25
  Speaker 1: she claimed she saw may be tested in that manner.
• 19:28
  Speaker 1: The Mason-Biggers test looks at 1. The opportunity of the
• 19:31
  Speaker 1: witness to view the criminal at the time of the crime, 2.
• 19:34
  Speaker 1: The witness degree of attention, 3. The accuracy of the
• 19:38
  Speaker 1: witness prior description of the criminal, 4. The level of
• 19:41
  Speaker 1: certainty demonstrated at the identification, and 5. The length between
• 19:46
  Speaker 1: the crime and the identification. Werdeman 161 161, Idaho at 718, 390, P. 3D
• 19:53
  Speaker 1: at 444. Even if the court were inclined to consider
• 19:57
  Speaker 1: defendants' arguments about why science supports a finding of unreliability,
• 20:02
  Speaker 1: the application of scientific principles to DM's reported memory for
• 20:06
  Speaker 1: purposes of determining reliability is squarely within the realm of
• 20:10
  Speaker 1: an expert. All defendant has presented to the court, however,
• 20:13
  Speaker 1: are citations to scientific articles. This is not an appropriate
• 20:17
  Speaker 1: substitute for expert testimony. The order. Based on the foregoing
• 20:22
  Speaker 1: defendant's motion in limine, witness identification by bushy eyebrows is denied.
• 20:28
  Speaker 1: This document was dated April 16th of 2025 and it
• 20:32
  Speaker 1: was signed by Judge Hippler. All of the information that
• 20:36
  Speaker 1: goes with this episode can be found in the description box.
• 20:39
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 20:42
  Speaker 1: this episode, we're getting right back to the court documents
• 20:45
  Speaker 1: up in Moscow, and we're going to be taking a
• 20:48
  Speaker 1: look at Brian Kohlberger's reply to the state's response to
• 20:53
  Speaker 1: Brian Kohlberger's motion in limine number seven, witness identification by
• 20:58
  Speaker 1: bushy eyebrows. Case number CR01-24-31665. State of Idaho, Plaintiff, vs.
• 21:08
  Speaker 1: Brian C. Kohlberger, the defendant. Comes now. Brian C. Kohlberger
• 21:14
  Speaker 1: buying through his attorneys of record and hereby replies to
• 21:17
  Speaker 1: the state's response to defendant's motion in Limine, witness identification
• 21:22
  Speaker 1: by bushy eyebrows, filed on March 17, 2025. The argument.
• 21:28
  Speaker 1: Mistaken identifications have been one of the leading causes of
• 21:31
  Speaker 1: wrongful convictions in the United States for decades, and they
• 21:34
  Speaker 1: still are. When a witness swears under oath to the
• 21:37
  Speaker 1: identification of the person on trial, the impact cannot be understated.
• 21:42
  Speaker 1: In this case, if DM is allowed to say that
• 21:45
  Speaker 1: she saw bushy eyebrows, it will not be different than
• 21:48
  Speaker 1: her pointing to Mr. Kohlberger and saying that's him. To
• 21:51
  Speaker 1: make matters even more prejudicial, the state wants to admit
• 21:55
  Speaker 1: into evidence a picture of Mr. Kohlberger as if DM
• 21:58
  Speaker 1: identified him in the photo. This is how wrongful convictions occur.
• 22:04
  Speaker 1: The photo of Mr. Kohlberger that the state attached to
• 22:06
  Speaker 1: its response is not relevant and is overly prejudicial. This
• 22:11
  Speaker 1: is akin to the state trying to identify Mr. Kohlberger
• 22:14
  Speaker 1: for DM or create its own corroboration for her. DM
• 22:19
  Speaker 1: previously said that she cannot identify him. Motion in Limonet
• 22:23
  Speaker 1: Exhibit 9 Lake Interview There are literally millions of people
• 22:27
  Speaker 1: in the world who might be described as having bushy eyebrows.
• 22:31
  Speaker 1: The term itself is subjective. and DM has a fascination
• 22:35
  Speaker 1: with drawing eyes and eyebrows. The state contends that DM's
• 22:39
  Speaker 1: statements are independently reliable as law enforcement did not employ
• 22:43
  Speaker 1: a witness identification procedure. Mr. Kohlberger is not suggesting that
• 22:49
  Speaker 1: DM's descriptive words were developed in conjunction with the lineup.
• 22:53
  Speaker 1: DM was interviewed five times. Law enforcement was involved with
• 22:57
  Speaker 1: each interview. According to the state, DM's multiple descriptions of
• 23:01
  Speaker 1: the intruder were based on our own recollection and were
• 23:05
  Speaker 1: not the result of suggestive identification procedures employed by law enforcement. Mr.
• 23:10
  Speaker 1: Koberger points the court to the following instances which are suggestive. 1.
• 23:16
  Speaker 1: In the second interview on November 13, 2022, Diem was
• 23:20
  Speaker 1: interviewed at the police department by Detective Mowry, who inquired
• 23:24
  Speaker 1: about facial features and asked Diem if she knew what
• 23:27
  Speaker 1: color the intruder's eyebrows were. Motion in Limonet Exhibit 3,
• 23:32
  Speaker 1: Mowry Interview Transcript. Detective Mowry is the person who mentioned eyebrows,
• 23:37
  Speaker 1: not Diem. 2. In the third interview, on November 17, 2022,
• 23:43
  Speaker 1: Diem was interviewed by Detective Gooch, who asked Diem if
• 23:46
  Speaker 1: she knew what a baklava was and showed her a picture.
• 23:51
  Speaker 1: Motion in Limonet Exhibit 6. In the fourth interview, on
• 23:55
  Speaker 1: December 1, 2022, Diem drew the mask for the interviewer.
• 24:00
  Speaker 1: State's response, page 6, motion in limine. Exhibit 7 Williamson
• 24:04
  Speaker 1: interview transcript. It looks remarkably similar to a balaclava. The
• 24:09
  Speaker 1: state argues that DM is a reliable witness. Should the
• 24:12
  Speaker 1: court apply five-factor Manson-Biggers balancing test to evaluate witness reliability,
• 24:18
  Speaker 1: it should not ignore either the limited amount of time
• 24:21
  Speaker 1: that DM had to view the intruder or her state
• 24:24
  Speaker 1: of intoxication. Motion in limine, pages 6 and 7. A
• 24:28
  Speaker 1: witness is less likely to provide an accurate identification from
• 24:32
  Speaker 1: a fleeting view and a witness's attention is likely compromised
• 24:36
  Speaker 1: when they are intoxicated. State v. Almaraz, 154 Idaho, 2013
• 24:43
  Speaker 1: DM saw the intruder briefly in a dark hallway. In
• 24:46
  Speaker 1: her own words, she was probably very drunk and tired
• 24:49
  Speaker 1: when she saw the intruder at 4 a.m. Motion in limine, 7,
• 24:54
  Speaker 1: page 6 and 7 Should the court apply relevance test?
• 24:58
  Speaker 1: and weigh the reliability of DM, exclusion of the term
• 25:02
  Speaker 1: bushy eyebrows is appropriate for all the reasons explained in
• 25:05
  Speaker 1: the Manson-Biggers test and intoxication as referenced in Almaraz. If
• 25:10
  Speaker 1: the court decides not to rely upon Manson-Biggers and Almaraz,
• 25:14
  Speaker 1: it should consider the scientific studies that explain the fragility
• 25:18
  Speaker 1: and inaccuracy of memory. This analysis, which is applicable to
• 25:22
  Speaker 1: the court's decision to exclude or limit this evidence, is
• 25:27
  Speaker 1: the fact that scientific studies conducted on memory show that
• 25:30
  Speaker 1: there are several steps to creating and retaining memory, and
• 25:34
  Speaker 1: influences such as amount of time of exposure to view,
• 25:38
  Speaker 1: the amount of stress involved, level of intoxication, and post-event
• 25:42
  Speaker 1: influences among others should be taken into consideration when determining reliability.
• 25:48
  Speaker 1: The science of memory is laid out below. The first
• 25:52
  Speaker 1: phase is the development of memory, is the acquisition or
• 25:55
  Speaker 1: encoding phase. The acquisition of memories depends on perception and
• 26:00
  Speaker 1: all of the factors that affect perception, such as distance, lighting,
• 26:04
  Speaker 1: and duration of exposure. Because perception also depends on several
• 26:08
  Speaker 1: individualized factors, the encoding phase of developing memories is affected
• 26:13
  Speaker 1: by many of those same criteria. The contents of short-term
• 26:17
  Speaker 1: memory are limited and the highly subject to interference by
• 26:20
  Speaker 1: subsequent sensory, cognitive, emotional, or behavioral events The contents can
• 26:26
  Speaker 1: be also biased by prior knowledge, expectations, or beliefs, resulting
• 26:31
  Speaker 1: in a distorted representation of experience. Short-term memories of events
• 26:36
  Speaker 1: that happened early in a witness proceeding may simply be
• 26:40
  Speaker 1: forgotten with the passage of time or badly compromised by
• 26:44
  Speaker 1: attention directed to subsequent emotional events or cognitive and behavioral demands, e.g. anxiety, fear,
• 26:51
  Speaker 1: the need to escape. In such cases... The compromised information
• 26:56
  Speaker 1: may never be consolidated fully into long-term storage or that
• 27:00
  Speaker 1: storage may contain distorted content. At the same time, the
• 27:04
  Speaker 1: quality of encoding of stimuli that are attended is commonly
• 27:08
  Speaker 1: enhanced by highly emotional content. Sensory overload has particular relevance
• 27:14
  Speaker 1: to the encoding phase. It can lead to so much
• 27:17
  Speaker 1: incomplete sensory acquisition that confabulation, the creation or substitution of
• 27:23
  Speaker 1: of false memories through later suggestion, can occur to fill
• 27:26
  Speaker 1: in the many gaps that exist. In this case, the
• 27:30
  Speaker 1: time period of observation was seconds at most, with limited lighting,
• 27:35
  Speaker 1: under stress, and expressed fear, and with a witness who
• 27:38
  Speaker 1: has repeatedly expressed she is unsure. Motion in Limine, 7,
• 27:42
  Speaker 1: pages 4 and 6. She was in frozen shock phase,
• 27:46
  Speaker 1: she did not know if it's a dream, and there
• 27:49
  Speaker 1: is a time delay in her reporting what she saw.
• 27:51
  Speaker 1: The next part of the memory process is the retention
• 27:54
  Speaker 1: or storage phase. During this phase, the brain stabilizes and
• 27:58
  Speaker 1: consolidates memories for storage until they are called upon for retrieval.
• 28:03
  Speaker 1: The amount of data being encoded and retained is one
• 28:06
  Speaker 1: factor that affects this phase. The greater the amount of
• 28:09
  Speaker 1: data presented, especially in shorter periods of time, the less
• 28:13
  Speaker 1: that will be retained. A second key factor in the
• 28:16
  Speaker 1: retention interval, how much time passes between storage of the
• 28:20
  Speaker 1: memory and retrieval of it. A third factor has the
• 28:24
  Speaker 1: most potentially negative effect on the memory retention, the post-event
• 28:28
  Speaker 1: misinformation effect. Exposure to subsequent information affects how earlier memories
• 28:34
  Speaker 1: are retained and retrieved. This means that an eyewitness exposed
• 28:38
  Speaker 1: to post-event misinformation can accept erroneous or even non-existent details
• 28:44
  Speaker 1: as if they were true. In this case, not only
• 28:47
  Speaker 1: was there an 8-hour delay in reporting, Prior to the
• 28:50
  Speaker 1: first law enforcement interview, DM was allowed to mingle with
• 28:53
  Speaker 1: BF and many other friends. Law enforcement did not separate
• 28:57
  Speaker 1: all of the friends who came to 1122 King Road
• 29:00
  Speaker 1: prior to interviews, and no warning was given to not
• 29:03
  Speaker 1: discuss the facts, and no effort was made to limit
• 29:07
  Speaker 1: such a discussion. Many of the friends who were at
• 29:11
  Speaker 1: 1122 King Road when police arrived also stayed in the
• 29:13
  Speaker 1: same hotel room the night of November 13, 2022. there
• 29:18
  Speaker 1: was also extensive media coverage. Post-event misinformation must be considered
• 29:23
  Speaker 1: as a factor on the accuracy of DM's memory retention. Finally,
• 29:27
  Speaker 1: during the retrieval phase, the brain searches for the pertinent information,
• 29:32
  Speaker 1: retrieves it, and communicates it. This process occurs when eyewitnesses
• 29:36
  Speaker 1: describe what they observe to police, when they participate, in
• 29:40
  Speaker 1: identification confrontations, and when they testify in court. Several factors
• 29:47
  Speaker 1: affect retrieval. Time is a very important factor in memory retrieval.
• 29:51
  Speaker 1: As a rule, the longer the period between acquisition, retention,
• 29:56
  Speaker 1: and retrieval, the more difficulty we have retrieving the memory.
• 30:00
  Speaker 1: a phenomenon referred to as memory decay. By the time
• 30:03
  Speaker 1: DM testifies, almost three years will have passed after law
• 30:07
  Speaker 1: enforcement interviews where her recitation of the events of November 13,
• 30:12
  Speaker 1: 2022 changes, and after extensive media coverage about this case,
• 30:17
  Speaker 1: which almost always includes pictures of Mr. Kohlberger. Memory retrieval
• 30:22
  Speaker 1: in these circumstances weighs against reliability. Conclusion For the reasons
• 30:28
  Speaker 1: addressed above, In Mr. Kohlberger's initial brief, the court should
• 30:32
  Speaker 1: grant Mr. Kohlberger's motion in limine to exclude DM from
• 30:35
  Speaker 1: using the words bushy eyebrows to identify the intruder that
• 30:39
  Speaker 1: she saw and exclude DM from identifying Mr. Kohlberger based
• 30:43
  Speaker 1: on bushy eyebrows. The court must additionally prohibit the state
• 30:47
  Speaker 1: from acting as an identifying witness by admitting a picture
• 30:51
  Speaker 1: of Mr. Kohlberger in evidence in support of DM's testimony
• 30:55
  Speaker 1: or for any other reason. This document was dated on
• 30:59
  Speaker 1: March 24th, 2025, and it was signed by Elisa Massoth.
• 31:04
  Speaker 1: All of the information that goes with this episode can
• 31:07
  Speaker 1: be found in the description box. What's up everyone and
• 31:10
  Speaker 1: welcome back to the program. After Brian Kohlberger's marathon court
• 31:14
  Speaker 1: appearance last week, Judge Hippler had several different motions that
• 31:17
  Speaker 1: he said he was going to rule on, and on Friday...
• 31:20
  Speaker 1: That's exactly what he did. And in this episode, we're
• 31:23
  Speaker 1: going to talk about those rulings and how they're going
• 31:25
  Speaker 1: to impact the upcoming trial. And to do that, we
• 31:28
  Speaker 1: have an article from the Daily Mail. Headline, Idaho murders
• 31:32
  Speaker 1: trial judge rules on Brian Kohlberger's autism defense and if
• 31:35
  Speaker 1: roommate can say bushy eyebrows. This article was authored by
• 31:39
  Speaker 1: Rachel Sharp. An Idaho judge has dealt a series of
• 31:42
  Speaker 1: blows to Brian Kohlberger's defense in his capital murder trial,
• 31:46
  Speaker 1: striking down his efforts to have the term bushy eyebrows banned.
• 31:50
  Speaker 1: from the case and ruling that his autism diagnosis cannot
• 31:53
  Speaker 1: be presented as an excuse for his courtroom behavior. And
• 31:57
  Speaker 1: when we were talking about this initially, there was no
• 31:59
  Speaker 1: way that I thought that Brian Kohlberger was going to
• 32:02
  Speaker 1: be successful here by keeping this sort of testimony out.
• 32:05
  Speaker 1: I never had any doubt that the judge would allow
• 32:07
  Speaker 1: the testimony about bushy eyebrows to be let in as evidence.
• 32:12
  Speaker 1: There was no way that he was going to exclude that.
• 32:15
  Speaker 1: And as far as the autism goes, well, isn't that
• 32:17
  Speaker 1: a bit convenient that all of a sudden Brian Koberger
• 32:20
  Speaker 1: is diagnosed with autism? My man has went under quite
• 32:23
  Speaker 1: the radical change since being in jail, huh? Diagnosed with autism,
• 32:26
  Speaker 1: found God, the whole thing. And according to his team,
• 32:29
  Speaker 1: that autism is so severe that it precludes him from
• 32:33
  Speaker 1: getting the death penalty. But it didn't preclude him from
• 32:36
  Speaker 1: getting the PhD or being on a path to get one.
• 32:39
  Speaker 1: Didn't preclude him from going to college. Didn't preclude him
• 32:42
  Speaker 1: from graduating from college, did it? but all of a
• 32:44
  Speaker 1: sudden it's this big deal, this big mitigating factor? Sorry,
• 32:48
  Speaker 1: I'm not buying it. The 30-year-old criminology PhD student is
• 32:52
  Speaker 1: facing the death penalty for the murders of Ethan Chapin,
• 32:55
  Speaker 1: Zanna Kernodle, Madison Mogan, and Kaylee Gonsalves in Moscow, Idaho,
• 33:00
  Speaker 1: back on November 13th, 2022. The four University of Idaho
• 33:04
  Speaker 1: students were brutally stabbed to death in the early hours
• 33:07
  Speaker 1: of the morning in the off-campus home in Moscow, Idaho,
• 33:11
  Speaker 1: that the three young women shared with two other roommates.
• 33:14
  Speaker 1: A flurry of court orders were handed down in the
• 33:16
  Speaker 1: case on Friday, one week after the defense and the
• 33:18
  Speaker 1: prosecution went to battle in a courtroom showdown over critical
• 33:22
  Speaker 1: evidence in the high-profile case. In one of the orders,
• 33:25
  Speaker 1: Judge Stephen Hipler ruled that the term bushy eyebrows would
• 33:29
  Speaker 1: not be struck from the trial, paving way for the
• 33:31
  Speaker 1: surviving roommate Dylan Mortensen's critical eyewitness testimony about what she
• 33:36
  Speaker 1: saw the night of the murders. And it's going to
• 33:39
  Speaker 1: be critical, but it's not going to be the kind
• 33:42
  Speaker 1: of thing that convicts Brian Kohlberger. It's just a little
• 33:45
  Speaker 1: more seasoning for the stew. The real ingredient here, obviously,
• 33:50
  Speaker 1: is the DNA on the sheath. DM's testimony about the
• 33:54
  Speaker 1: bushy eyebrows is highly relevant in this case, the judge ruled.
• 33:57
  Speaker 1: DM is the only eyewitness to the intruder responsible for
• 34:01
  Speaker 1: the homicides. It's the jury's task to determine whether the
• 34:04
  Speaker 1: defendant is that person. And that is exactly the right
• 34:07
  Speaker 1: way to go. Leave it up to the jury. I'm
• 34:11
  Speaker 1: always of the mind that you should admit more, right,
• 34:13
  Speaker 1: as a judge? Even if it might seem ludicrous, trust
• 34:16
  Speaker 1: the jury to see through it. And that way you
• 34:19
  Speaker 1: also avoid providing fertile ground for the carnival barkers to
• 34:22
  Speaker 1: show up and start with their bullshit. Because if your
• 34:25
  Speaker 1: case is strong and you have the right person, the
• 34:27
  Speaker 1: evidence is going to show that no matter what. DM
• 34:31
  Speaker 1: is the only witness to the intruder responsible for the homicides.
• 34:35
  Speaker 1: It's the jury's task to determine whether the defendant is
• 34:37
  Speaker 1: that person. The judge pointed out that Mortensen's accounts have
• 34:41
  Speaker 1: been consistent. and that there is nothing confusing about her testimony. Well,
• 34:46
  Speaker 1: people are going to say that the testimony is jumbled,
• 34:48
  Speaker 1: that she was under the influence, the whole thing. And
• 34:51
  Speaker 1: there is certainly some truth to that. And if her
• 34:53
  Speaker 1: testimony was the only evidence that they had against Brian Kohlberger,
• 34:56
  Speaker 1: then it would be bad news for the prosecution. But
• 34:59
  Speaker 1: like I was saying earlier, her testimony is just one
• 35:02
  Speaker 1: of the ingredients in the final recipe. Mortensen came face
• 35:05
  Speaker 1: to face with the intruder inside the off-campus student home
• 35:08
  Speaker 1: in Moscow, Idaho, around the time of the murders. According
• 35:12
  Speaker 1: to investigators, she heard noises in the home at around
• 35:14
  Speaker 1: 4 a.m. in the morning, followed by a man's voice
• 35:18
  Speaker 1: that was not Chapin, saying something to the effect of,
• 35:21
  Speaker 1: It's okay, I'm going to help you. When she peered
• 35:24
  Speaker 1: around her bedroom door, she saw a man walk past
• 35:27
  Speaker 1: her room on the second floor and head in the
• 35:29
  Speaker 1: direction of the back sliding door. The intruder she described
• 35:33
  Speaker 1: was tall, dressed in all black, and was wearing a mask.
• 35:37
  Speaker 1: Due to the mask, Mortensen could only see his eyes
• 35:39
  Speaker 1: and eyebrows, of the figure and recalled seeing his bushy eyebrows.
• 35:44
  Speaker 1: The defense wanted to block the term bushy eyebrows from
• 35:47
  Speaker 1: the trial. And I can't blame them for wanting to
• 35:49
  Speaker 1: block it, right? They want to get out as much
• 35:52
  Speaker 1: bad evidence as possible. Things that make their client look bad,
• 35:55
  Speaker 1: toss it. This is all bad evidence. It was collected improperly.
• 36:00
  Speaker 1: There was no chain of custody. You know, the whole thing.
• 36:03
  Speaker 1: But the truth is, and the Brian Koberger stans aren't
• 36:06
  Speaker 1: going to want to hear it, but the truth is,
• 36:09
  Speaker 1: The prosecution has been on the up and up this
• 36:11
  Speaker 1: whole entire time. And there has not been even a
• 36:14
  Speaker 1: hint of prosecutorial misconduct. And you can cry and gnash
• 36:18
  Speaker 1: your teeth and moan and wail all you want, but
• 36:21
  Speaker 1: the truth is the truth. And the truth is, there
• 36:24
  Speaker 1: is a preponderance of evidence that's pointing directly at Brian
• 36:27
  Speaker 1: Kohlberger and nobody else. And now that all of this
• 36:29
  Speaker 1: has failed, you're going to see them start focusing on
• 36:32
  Speaker 1: the unknown assailant theory that they're cooking up. Wait and see.
• 36:35
  Speaker 1: That's the next thing coming. In last week's hearing, the
• 36:38
  Speaker 1: defense picked holes in Mortensen's reliability as a witness, including
• 36:42
  Speaker 1: that she admitted she was drunk at the time, told
• 36:44
  Speaker 1: police she was in a dreamlike state, had drawings of
• 36:46
  Speaker 1: people with prominent eyebrows on her walls, and that she
• 36:50
  Speaker 1: was not separated from other witnesses following the discovery of
• 36:53
  Speaker 1: the murders. They also argued that Mortensen did not mention
• 36:56
  Speaker 1: eyebrows at all during the first three police interviews, only
• 36:59
  Speaker 1: mentioning them when asked by officers. The linchpin, the reliability,
• 37:03
  Speaker 1: is not there, the defense said. Prosecutors, however, argue that
• 37:07
  Speaker 1: her account and description of the intruder had been consistent
• 37:11
  Speaker 1: in every interview. The man was white, a few inches
• 37:14
  Speaker 1: taller than her, dressed in all black, wearing a mask,
• 37:17
  Speaker 1: was skinny, and had a voice she did not recognize.
• 37:20
  Speaker 1: The state also argued that the focus on the eyes
• 37:23
  Speaker 1: and eyebrows was natural, given that was the only facial
• 37:26
  Speaker 1: feature she could see beneath the mask. prosecutors want to
• 37:29
  Speaker 1: show jurors a chilling selfie captured by Kohlberger around six
• 37:33
  Speaker 1: hours after the murders as evidence of his bushy eyebrows
• 37:36
  Speaker 1: at the time of the murders. And there's a whole
• 37:38
  Speaker 1: heap of relevance there. If he took this photo six
• 37:42
  Speaker 1: hours after the murders, according to metadata, and you have
• 37:44
  Speaker 1: a witness who says somebody that matches the description, including
• 37:48
  Speaker 1: the eyebrows, was the person who committed these murders, how
• 37:51
  Speaker 1: in the hell can you say that's not reliable? Now,
• 37:54
  Speaker 1: you can point to the fact that she said she
• 37:55
  Speaker 1: was drunk, and frankly, I think there was more than
• 37:58
  Speaker 1: just alcohol, right? I said before that there might have
• 38:01
  Speaker 1: been some hallucinogenics or something like that going on, but
• 38:04
  Speaker 1: there certainly wasn't enough here for the judge to exclude this.
• 38:07
  Speaker 1: This is something that the jury should take a look at,
• 38:09
  Speaker 1: they should hear, and they should make their decision. Dylan
• 38:12
  Speaker 1: Mortensen is the only living individual who saw the person
• 38:15
  Speaker 1: who's responsible for these homicides, the prosecutor said, adding that
• 38:19
  Speaker 1: this makes her irrelevant to identify the killer. In siding
• 38:23
  Speaker 1: with the state, Judge Hibbler wrote in his court order
• 38:26
  Speaker 1: that Mortensen's account of what she saw and the physical
• 38:28
  Speaker 1: characteristics of the intruder were remarkably consistent throughout all five
• 38:32
  Speaker 1: interviews and her grand jury testimony. And consistency turns into credibility.
• 38:37
  Speaker 1: Keep that in mind. Although she might have been intoxicated
• 38:41
  Speaker 1: or tired or questioned her memory, the consistency of her
• 38:44
  Speaker 1: description suggests high degrees of reliability, the judge ruled, adding
• 38:49
  Speaker 1: that challenges to her competency and personal knowledge as basis
• 38:53
  Speaker 1: for exclusion, are unfounded. There's a large gulf between finding
• 38:58
  Speaker 1: that witness is not competent to testify about what they
• 39:00
  Speaker 1: personally witnessed and simply allowing impeachment by vigorous cross-examination, the
• 39:05
  Speaker 1: judge wrote. This is a matter for cross-examination by defendant
• 39:09
  Speaker 1: and any concerns with DM's ability to perceive and remember
• 39:13
  Speaker 1: what she claimed she saw may be tested in that manner.
• 39:16
  Speaker 1: That's exactly what I said a second ago. That's a
• 39:18
  Speaker 1: cross-examination issue. It has nothing to do with the judge
• 39:21
  Speaker 1: just leaving that out. That's crazy talk. In another blow
• 39:24
  Speaker 1: to Kohlberger's defense strategy, the judge also issued a bombshell
• 39:27
  Speaker 1: court order ruling that his team can only present evidence
• 39:30
  Speaker 1: of his autism diagnosis as a reason for his courtroom
• 39:33
  Speaker 1: behavior if Kohlberger himself takes the stand to testify. There's
• 39:38
  Speaker 1: about as much of a chance as me hitting a
• 39:39
  Speaker 1: home run at Yankee Stadium as there is of Brian
• 39:42
  Speaker 1: Kohlberger getting on the stand. During the penalty phase, where
• 39:46
  Speaker 1: if convicted, jurors could sentence him to death, Kohlberger's defense
• 39:49
  Speaker 1: wanted to present expert witness testimony about his autism diagnosis.
• 39:54
  Speaker 1: The team claimed that his diagnosis could explain to jurors
• 39:57
  Speaker 1: Kohlberger's potentially odd behavior in the courtroom, something the prosecution
• 40:01
  Speaker 1: asked the judge to reject. Specifically, defendant asserts testimony about
• 40:06
  Speaker 1: his ASD will help the jury understand that his behavioral characteristics,
• 40:10
  Speaker 1: such as flat effect, intense eye contact, awkward body posture,
• 40:15
  Speaker 1: and lack of emotive responses are associated with his ASD
• 40:19
  Speaker 1: and should not be interpreted in sinister light, the court
• 40:21
  Speaker 1: order reads. While behind bars waiting trial for the murders,
• 40:25
  Speaker 1: Kohlberger underwent a comprehensive neuropsychological evaluation by defense expert Dr.
• 40:31
  Speaker 1: Rachel Orr. So his whole life he lived and he
• 40:34
  Speaker 1: never knew he had autism, huh? Now look, I'm not
• 40:36
  Speaker 1: saying that doesn't happen, but come on. Obviously, whatever sort
• 40:40
  Speaker 1: of autism Brian Kohlberger has, it's high-functioning. So the whole
• 40:44
  Speaker 1: autism debate was nothing more than some more chum in
• 40:48
  Speaker 1: the water. Just another way for the defense to say, look,
• 40:51
  Speaker 1: Brian Koberger's not being treated fairly. He's not even mentally
• 40:54
  Speaker 1: competent without saying he's not mentally competent. She ultimately diagnosed
• 40:58
  Speaker 1: him with autism spectrum disorder and obsessive compulsive disorder. The
• 41:03
  Speaker 1: court order notes that his autism diagnosis is for level
• 41:06
  Speaker 1: one without intellectual or language impairment. The least severe form
• 41:11
  Speaker 1: of ASD and that he is highly functioning. So it's
• 41:14
  Speaker 1: a non-starter, right? We're not talking about somebody who can't
• 41:17
  Speaker 1: get out of bed. We're not talking about somebody who
• 41:19
  Speaker 1: is having difficulty with his autism to live his regular life.
• 41:24
  Speaker 1: We're talking about somebody who all of a sudden, now
• 41:26
  Speaker 1: that he finds his ass in the sling, now he
• 41:28
  Speaker 1: has autism. And that should be something that factors into
• 41:32
  Speaker 1: his trial. Wrong. Not going to happen. Never was going
• 41:35
  Speaker 1: to happen. And good luck trying to get that in
• 41:38
  Speaker 1: on an appeal as well. Judge Hipler also noted that
• 41:43
  Speaker 1: he had never noticed any odd or inappropriate behavior from Kohlberger,
• 41:47
  Speaker 1: such as the described by the defense during his many
• 41:49
  Speaker 1: times in the courtroom. And that plays a big part, right?
• 41:53
  Speaker 1: Judge Hipler has seen Brian Kohlberger in the courtroom in
• 41:55
  Speaker 1: front of his own eyes now several times. And according
• 41:58
  Speaker 1: to him, none of that was a factor or was
• 42:00
  Speaker 1: going to be a factor moving forward. The court has
• 42:03
  Speaker 1: had the opportunity to observe the defendant through multiple hearings
• 42:06
  Speaker 1: over the past several months, some lasting all day. Not
• 42:10
  Speaker 1: once has the court perceived defendant to be acting in
• 42:12
  Speaker 1: an odd or incongruent manner or otherwise demonstrating signs at
• 42:17
  Speaker 1: counsel table that would warrant any explanation to the jury,
• 42:20
  Speaker 1: the judge wrote. His demeanor has been entirely appropriate. If
• 42:25
  Speaker 1: Kohlberger does not take the stand to testify at his trial,
• 42:28
  Speaker 1: then his demeanor is also not relevant, the judge wrote,
• 42:31
  Speaker 1: because jurors are already required to only weigh the evidence
• 42:34
  Speaker 1: presented by witnesses on the stand. Introducing such evidence risks
• 42:39
  Speaker 1: confusing the issues, misleading the jurors, wasting time, and potentially
• 42:43
  Speaker 1: unfairly prejudicing both defendant and the state, he wrote. Should
• 42:47
  Speaker 1: Kohlberger decide to testify, evidence to explain his demeanor may
• 42:51
  Speaker 1: become relevant, the judge wrote. While banning the presentation of
• 42:54
  Speaker 1: his autism diagnosis, the judge said he would reserve ruling
• 42:58
  Speaker 1: on whether jurors can hear the evidence of Kohlberger's OCD
• 43:01
  Speaker 1: until trial. According to the defense, Kohlberger has a tendency
• 43:05
  Speaker 1: to wear gloves and dispose of shower curtains due to
• 43:08
  Speaker 1: his OCD. Oh, give me a break. Like, people are
• 43:11
  Speaker 1: actually buying this. You have people out there simping for
• 43:13
  Speaker 1: this dude who actually believe this. No, he wasn't running
• 43:17
  Speaker 1: around in rubber gloves because of his OCD, okay? Why
• 43:20
  Speaker 1: was he throwing shit in his neighbor's trash can? Is
• 43:22
  Speaker 1: that because of OCD too? It also causes sleep difficulties
• 43:26
  Speaker 1: that have led to a habit of nighttime driving, they allege.
• 43:29
  Speaker 1: Oh yeah, that's what it was. He was sleep driving.
• 43:32
  Speaker 1: And the amount of people that I see on social
• 43:34
  Speaker 1: media talking nonsense that they have no idea about is
• 43:38
  Speaker 1: just bizarre. Like, you can tell who's read the court
• 43:41
  Speaker 1: documents and who hasn't. Kohlberger's alibi for the night of
• 43:44
  Speaker 1: the murders is that he was driving around alone looking
• 43:47
  Speaker 1: at the moon and the stars. And they have no
• 43:49
  Speaker 1: corroboration for that, by the way, unless you count their
• 43:52
  Speaker 1: expert Cy Ray, who says that he's going to partially
• 43:56
  Speaker 1: corroborate Brian Kohlberger's location via data. There's only one problem.
• 44:02
  Speaker 1: There's no such thing as partial corroboration in the state
• 44:06
  Speaker 1: of Idaho. So good luck with that. And I think
• 44:08
  Speaker 1: that Koberger's team is going to run into some problems
• 44:11
  Speaker 1: with this expert that they brought in. The judges already
• 44:14
  Speaker 1: admonished the defense for his affidavit. So I expect more
• 44:18
  Speaker 1: of that moving forward. The defense also claims he has
• 44:22
  Speaker 1: a physical condition, developmental coordination disorder, that would have made
• 44:25
  Speaker 1: it impossible for him to kill four in the roughly
• 44:28
  Speaker 1: 13-minute time frame laid out by the state. Judge Hippler
• 44:31
  Speaker 1: ruled that the OCD cannot be presented at trial in
• 44:34
  Speaker 1: part due to the fact that Kohlberger does not have
• 44:37
  Speaker 1: a current diagnosis for the condition. This dude has all
• 44:40
  Speaker 1: kinds of conditions all of a sudden, huh? What's next, leprosy?
• 44:43
  Speaker 1: He's blind? In other orders issued on Friday, the judge
• 44:48
  Speaker 1: also denied the defense request, restricting testimony about the surveillance
• 44:52
  Speaker 1: footage of the white Hyundai Elantra seen around the crime
• 44:55
  Speaker 1: scene at the time of the murders. The defense did
• 44:58
  Speaker 1: score a minor win, however. with the judge asking the
• 45:01
  Speaker 1: witnesses to avoid using the terms touch DNA, contact DNA,
• 45:05
  Speaker 1: and trace DNA in reference to the knife sheath left
• 45:08
  Speaker 1: behind at the scene. Well, call it whatever you want.
• 45:11
  Speaker 1: The fact is, Brian Koberger's DNA is on that knife sheath.
• 45:15
  Speaker 1: So until somebody can explain that, including all of the
• 45:18
  Speaker 1: weird simps out there that are simping for this dude,
• 45:21
  Speaker 1: I really don't want to hear it. All the other
• 45:23
  Speaker 1: shit you're doing is just narrative building, and I have
• 45:25
  Speaker 1: no time for it. And frankly, the time for narrative
• 45:28
  Speaker 1: building is coming to a close. We're at a point
• 45:32
  Speaker 1: now where the evidence should be apparent. And so far,
• 45:35
  Speaker 1: Brian Kohlberger hasn't brought shit to the table. During last
• 45:39
  Speaker 1: week's hearing, the judge previously ruled that the state cannot
• 45:42
  Speaker 1: use his diagnosis as an aggravating factor if he's convicted
• 45:46
  Speaker 1: and the trial enters the death penalty phase. And I
• 45:49
  Speaker 1: think that's correct, right? I certainly think that that's the
• 45:52
  Speaker 1: way to go. This is not a debilitating, you know,
• 45:56
  Speaker 1: condition that Brian Kohlberger is suffering from. This is level
• 46:00
  Speaker 1: one autism. He also banned the words sociopath and psychopath
• 46:05
  Speaker 1: from the trial and ruled that Kohlberger's Amazon purchase history
• 46:08
  Speaker 1: can be shown to jurors. Nobody was going to use
• 46:12
  Speaker 1: the words sociopath or psychopath anyway. So sure, enjoy your
• 46:16
  Speaker 1: Pyrrhic victory, buddy. Kohlberger was tied to the murders through
• 46:19
  Speaker 1: a K-Bar brown leather knife sheath featuring a U.S. Marine
• 46:22
  Speaker 1: Corps seal, which was found next to Mogan's body in
• 46:25
  Speaker 1: her bedroom on the third floor of the home. DNA
• 46:29
  Speaker 1: on the sheath was traced back to Kohlberger using investigative
• 46:32
  Speaker 1: genetic genealogy, according to prosecutors. Following his arrest, it was
• 46:36
  Speaker 1: found to be a statistical match. Oh no, but it
• 46:39
  Speaker 1: wasn't him. It was somebody else. It was the drug cartel.
• 46:43
  Speaker 1: It was the fraternity. That's the other one they like
• 46:46
  Speaker 1: to talk about. Oh, it was the fraternity who killed him.
• 46:48
  Speaker 1: Shut your dumb ass up. It's everybody but Brian Kohlberger, right?
• 46:53
  Speaker 1: Everybody but. The big problem with all of that, though,
• 46:56
  Speaker 1: is there's no evidence... That points away from Brian Koberger,
• 46:59
  Speaker 1: when in fact all the evidence points directly to him.
• 47:02
  Speaker 1: While the murder weapon has never been found, Koberger's Amazon
• 47:06
  Speaker 1: shopping history reveals he bought a K-Bar knife, sheath, and
• 47:09
  Speaker 1: sharpener from Amazon back in March of 2022, according to
• 47:13
  Speaker 1: a prosecution filing. It was shipped to his parents' home
• 47:16
  Speaker 1: in Pennsylvania. Following the murders, Koberger searched to buy a
• 47:20
  Speaker 1: replacement knife and sheath, prosecutors allege. The judge is yet
• 47:24
  Speaker 1: to rule on several other motions. Kohlberger is slated to
• 47:27
  Speaker 1: go to trial in August. He faces the death penalty
• 47:31
  Speaker 1: if convicted, an outcome that has been welcomed by some
• 47:34
  Speaker 1: of the families of the victims. Due to changes in
• 47:37
  Speaker 1: state law, he could be executed by firing squad. The
• 47:40
  Speaker 1: horror murders, the first homicide in seven years for the small,
• 47:44
  Speaker 1: tight-knit college town, plunged the community into fear and sent
• 47:48
  Speaker 1: shockwaves across the country. Around six weeks later, on December 30, 2022,
• 47:53
  Speaker 1: police swooped in on Kohlberger at his parents' home and
• 47:56
  Speaker 1: in the Poconos region of Pennsylvania, and charged him with
• 47:59
  Speaker 1: the murders. As well as DNA found on the knife sheath,
• 48:02
  Speaker 1: prosecutors say Kohlberger has been tied to the murders through
• 48:05
  Speaker 1: his white Hyundai Elantra, which matches the car seen leaving
• 48:08
  Speaker 1: the crime scene at the time of the murders. Cell
• 48:11
  Speaker 1: phone records also allegedly show that Kohlberger may have stalked
• 48:15
  Speaker 1: the King Road home at least a dozen times in
• 48:17
  Speaker 1: the lead up to the murders, and that he turned
• 48:19
  Speaker 1: his phone off while committing the crime to try to
• 48:21
  Speaker 1: cover his tracks. A not guilty plea was entered on
• 48:24
  Speaker 1: his behalf at his arraignment, He is next due in
• 48:27
  Speaker 1: court in mid-May for a pretrial hearing. Alright, so those
• 48:30
  Speaker 1: rulings pretty much fell exactly where I thought they would,
• 48:33
  Speaker 1: considering what we know about Judge Hippler and what we
• 48:36
  Speaker 1: know about the case overall. So over this weekend, I'll
• 48:38
  Speaker 1: get those orders that Judge Hippler filed into the catalog,
• 48:42
  Speaker 1: that way we keep this train rolling, and we'll continue
• 48:45
  Speaker 1: on as we continue to follow along with the trial
• 48:49
  Speaker 1: of Brian Koberger. All of the information that goes with
• 48:53
  Speaker 1: this episode can be found in the description box.