The University of Idaho Murders: Four Orders

Summary

Summary of "Murder Sheet" Episode: The University of Idaho Murders – Four Orders

Release Date: May 1, 2025

Introduction

In this episode of Murder Sheet, hosts Áine Cain and Kevin Greenlee delve into the intricate legal developments surrounding the University of Idaho murders case. This case involves former PhD student Brian Kohberger, accused of brutally murdering four University of Idaho students in Moscow, Idaho. The discussion centers on four significant court orders that shape the impending trial, offering listeners a comprehensive analysis of the legal strategies, motions, and implications involved.

Overview of the Four Court Orders

The episode systematically breaks down four critical court orders issued by Judge Steven Hippler on April 24, 2025. These orders address various defensive motions and the prosecution's attempts to admit specific evidence. The hosts examine each order's content, the arguments presented, and the judge's rulings.

1. Motion to Remove the Death Penalty Due to Unorganized Discovery
2. Motion to Strike the Death Penalty Based on Autism Spectrum Disorder
3. Motion to Eliminate Vague and Undisclosed Expert Testimony
4. State’s Motions in Limine Regarding Text Messages and 911 Calls

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1. Motion to Remove the Death Penalty Due to Unorganized Discovery

Defense’s Argument: The defense sought to strike the death penalty, arguing that the state's discovery process was "voluminous and unorganized," thereby violating Kohberger's due process rights (00:55). They contended that the chaotic presentation of evidence hindered meaningful review and investigation, making the death penalty an unconstitutional sentencing option.

Prosecution’s Response: The state rebutted, asserting full compliance with discovery obligations, including Brady disclosures, and dismissed the need for additional organizational assistance.

Judge’s Ruling: Judge Hippler sided with the prosecution, stating, “Defendant has failed to show discovery violation or due process violation by the state. Sanctions are not warranted” (08:30). The judge emphasized that the state had met its discovery obligations and declined to enforce any organizational support for the defense.

Hosts' Analysis: Kevin remarked, “....the state doesn’t have to organize it for you” (08:58), highlighting the futility of the defense's argument. Anya compared the situation to a mechanic refusing to ensure a car’s safety, emphasizing the defense’s responsibility to manage their own review of evidence (09:52).

2. Motion to Strike the Death Penalty Based on Autism Spectrum Disorder

Defense’s Argument: The defense introduced a recent diagnosis of Kohberger with Autism Spectrum Disorder Level 1 (ASD Level 1), arguing it equates to an intellectual disability, which categorically exempts one from the death penalty (12:34). They posited that Kohberger’s ASD should disqualify him from facing capital punishment.

Prosecution’s Response: The state maintained that ASD Level 1 does not qualify as an intellectual disability under the legal standards set by cases like Atkins v. Virginia. They argued that the diagnosis did not undermine Kohberger’s capacity to understand the proceedings or his culpability.

Judge’s Ruling: Judge Hippler rejected the motion, stating that the ASD diagnosis, while notable, does not meet the criteria for exclusion from the death penalty. He referenced the American Psychiatric Association’s DSM-5 criteria and highlighted that Kohberger does not have an intellectual disability (14:10).

Hosts' Analysis: Anya questioned the relevance of ASD in this context, noting, “...the symptoms... do not sound similar to an intellectual disability” (26:18). Kevin concurred, pointing out Kohberger’s high IQ of 119 and academic achievements, arguing that the defense's stance was unconvincing (26:54).

3. Motion to Eliminate Vague and Undisclosed Expert Testimony

Defense’s Argument: The defense aimed to limit or exclude several experts disclosed by the state, claiming their testimonies were vague and not sufficiently detailed (12:34). They focused on experts related to forensic analysis and financial transactions, questioning the relevance and clarity of their reports.

Prosecution’s Response: The state countered that all disclosures met discovery obligations and that any deficiencies could be addressed through cross-examination rather than exclusion from the trial.

Judge’s Ruling: Judge Hippler found no grounds to exclude or limit the expert testimonies, allowing them to stand unless the defense objects to their scope during the trial (35:12).

Hosts' Analysis: Kevin described the defense's efforts as "pretty thin," suggesting that such broad objections might be more about creating a record for appeal rather than substantive legal challenges (35:23). Anya agreed, emphasizing the strategic nature of defense attorneys to cover all bases, even weak ones (35:59).

4. State’s Motions in Limine Regarding Text Messages and 911 Calls

Prosecution’s Argument: The state sought to admit text messages and 911 call transcripts between the surviving roommates, Daniella “DM” and her roommate “BF,” arguing they are not hearsay or fit within hearsay exceptions like present sense impressions and excited utterances (37:38).

Defense’s Argument: The defense objected, labeling these communications as hearsay and challenging their admissibility based on their unsolicited and unsworn nature.

Judge’s Ruling: Judge Hippler ruled in favor of the prosecution, deeming the text messages and 911 call transcripts admissible. He cited exceptions to hearsay rules, noting the statements were made under stress and provided immediate descriptions of startling events (48:09). The judge allowed these communications to be used for establishing a timeline rather than proving the truth of the statements.

Hosts' Analysis: Anya and Kevin discussed the legal nuances of hearsay, clarifying how certain statements, especially those made under duress, can gain admissibility in court (37:40 – 48:13). They appreciated the judge’s empathetic understanding of the roommates' trauma, acknowledging that their actions were consistent with individuals under extreme stress (52:05).

Mock 911 Call Insight: The hosts recreated portions of the chaotic 911 call, illustrating the roommates' confusion and fear during the incident (46:02 – 46:43). They emphasized the emotional turmoil the roommates experienced, reinforcing the judge’s rationale for admitting these statements as exceptions to hearsay.

Conclusion

Áine Cain and Kevin Greenlee provided a thorough examination of the four court orders impacting the University of Idaho murders case. Their analysis highlighted the robustness of the prosecution’s position and the challenges faced by the defense in mitigating the possibility of a death penalty. The episode offered listeners an in-depth understanding of the legal maneuvers, the significance of ASD in capital cases, and the complexities of admitting evidence under hearsay exceptions.

Key Quotes:

• Kevin Greenlee (08:58): “...the state doesn’t have to organize it for you.”
• Anya Cain (09:52): “...if you really don't feel you have the time... to ask for a delay.”
• Judge Hippler (12:28): “...it's not up to us to organize it for you...”
• Kevin Greenlee (35:23): “But at what point are you just kind of wasting the court's time?”
• Judge Hippler (48:13): “...the girl's fear and confusion is evidence in their words...”

Final Thoughts

The episode underscores the critical nature of pretrial motions and court rulings in shaping the trajectory of high-profile criminal cases. Cain and Greenlee adeptly navigated the legal jargon, making complex court decisions accessible to their audience. As the trial approaches, listeners are left with a clear understanding of the strategic positions each side holds and the potential outcomes based on the current legal standings.

Transcript

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[Kevin Greenlee]

Quince.commsheet content warning this episode contains discussion of murder and violence. So there's been a flurry activity as usual in the University of Idaho murders case. This is of course the case against former PhD student at Washington State University Brian Kohberger. He was a criminology PhD student who is accused of murdering four University of Idaho students in nearby Moscow, Idaho, across the border from Washington.

[Anya Cain]

And there's been a lot of this pretrial activity and it's absolutely crucial to pay attention to it because the trial is, at least in theory, fast approaching and these pre trial hearings and motions and the like are basically setting the ground rules for how that trial will be conducted.

[Kevin Greenlee]

Yes, and this is obviously a very important case. It concerns the the loss of four young people, Zanna Kernodle, Ethan Chapin, Madison Mogan and Kaylee Gonzalez. These are four young people who were in a house on King Road in Moscow, Idaho, late, you know, early, early in the morning and they're in their beds and they're attacked and murdered. So I mean, their families have been in agony, I imagine, ever since. And this case has spurred a lot of discussion. But we wanted to cover this in depth in terms of the legal filing. So we're going to what we have now is four orders from the judge that we're going to about. These are in response to different motions that went out there. So we're having the judge weigh in and say what he, you know, thinks should happen going forward. So that's we're going to talk about today. All right. My name is Anya Cain, I'm a.

[Anya Cain]

Journalist and I'm Kevin Greenlee. I'm an attorney.

[Kevin Greenlee]

And this is the Murder Sheet.

[Anya Cain]

We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases. We're the Murder Sheet and this is.

[Kevin Greenlee]

The University of Idaho Murders four Orders. So let's talk about these orders and just go through the what they're about quickly and then we'll go into each in depth. One is about removing the death penalty from consideration in this case. The death penalty is on the table for Bryan Kohberger. And Taylor is a public defender who has experience with death penalty cases. It's my personal opinion that if she is able to get Coburger off without getting the death penalty, that would be a huge accomplishment for her. What I'm talking about is even if he's convicted, if she gets him away from the death penalty, that's a big win.

[Anya Cain]

That's a win for her.

[Kevin Greenlee]

The next one is motion to strike death penalty, specifically because Coburger has been diagnosed with autism spectrum disorder. We've talked about that on the show. We're going to go into more detail about the. What that diagnosis looked like and what happened and what. What people are seeing in him. So that'll be some interesting insights into Coburger himself. We're going to go into the motion, the order, rather on the motion, the defense's motion in limine regarding vague and undisclosed expert testimony. That's going to have some interesting information about some of the experts that may come and testify at this trial. And finally, we're going to go on the state's motions in limine regarding text Messages and the 911 call. And that has to do with getting some of these 911 call statements and text messages into the. Into the trial, um, you know, despite hearsay rules. So let's get down to it. This first one, and of course, what we're talking about here, when we're talking about Idaho, the judge is, of course, Judge Steven Hippler. Hippler is the judge overviewing it. It used to be a guy named Judge Judge, but the. There was a change of venue, so we no longer have that amusing name, but now we have Judge Hitler. And these all came out April 24, 2025. So let me read the opening of the first order around the motion to strike death penalty. Quote, defendant contends that the discovery produced by the state in this case has been voluminous and unorganized, thus rendering him unable to meaningfully review and investigate the state's evidence in time for trial. Asserting his due process rights have been violated, Defendants seek sanctions in the form of striking the death penalty and imposing certain organizational requirements upon the state. The aid defendant's review of discovery. The state responds that it has complied with all discovery obligations, including Brady, and that there is no basis for sanctions or other measures. Oral argument on the motion was held on April 9, 2025, after which the court took the matter under advisement because defendant has Failed to show discovery violation or due process violation by the state. Sanctions are not warranted. The court further declines to require the state to provide further organizational assistance to the defendant. End quote.

[Anya Cain]

So, in other words, the defense said, hey, you've given us a lot of discovery. It's not organized in a clear enough way for us. So because of this, you shouldn't be allowed to do the death penalty. And the state says, what? It's not up to us to organize it for you? And by the way, we gave you everything we were supposed to. And the judge said, yeah, the state's right. And the state doesn't have to organize it for the defense. Am I reading that? Is that what you mean?

[Kevin Greenlee]

I feel like you summed it up better than I ever could have. And I don't even know if it's worth it. Worth further dwelling on this because that's it. Don't do death penalty. Because discovery. I want to make this really clear because we saw this in the Delphi murders case, and I suppose it's a strategy, citing discovery issues to try to get leverage. And I understand that it's the defense's job to be scrappy and make any argument they can, although, frankly, some of these arguments seem borderline ridiculous in my opinion. I mean, I would argue that their job is to advocate for their client, but if it kind of means putting up embarrassing stuff like this, then I hopefully. I mean, maybe they can find a better way to do that. I mean, this was just. There are. Okay, it's so much discovery. Blah, blah, blah. No one's holding our hand or chewing our food for us. It's like, I don't. That in no way is the state responsible for organizing anything for them.

[Anya Cain]

And one thing that really jumps out at me in what you read, I will reread it. Defense contends that the discovery in this case has been voluminous and unorganized, thus rendering him unable to meaningfully review and investigate the state's evidence in time for trial. So if they are saying, golly, there's so much discovery, we don't have time to go through and review it and prepare for trial, then there seems to be an obvious remedy for that. Maybe delay the trial, continue it so you have the time to do this review you're saying you don't have time to do. If I took my car into a mechanic, and I said to the mechanic, I'm having trouble with the car. I want the car to be safe. And the mechanic says to me, kevin, we don't have time to make your car safe. We'll do the best we can and give to you in like 20 minutes. I'm going to say no, take all the time you need to make my car safe. And if you really don't feel you have the time for whatever reason, to be fully prepared for this trial before its scheduled date, I think you would owe it to the defendant, Mr. Kohberger, to ask for a delay.

[Kevin Greenlee]

I would think so, too. And frankly, the judge seemed to agree with some of that. I'm going to read a quote from this motion, from this order quote. In addition, defendant's complaints of being unable to meaningfully review the discovery ring hollow. Defendant has been receiving discovery in the same manner for over two years. In that time, he has not once sought remedy from this court to regulate discovery, such as requiring the state to provide discovery in a different format. He has not sought additional resources under ICR 12.2 to hire additional staff to review discovery or obtain litigation document control software to help organize and sort the evidence. His lead counsel insisted that she be allowed to take on a second high profile capital case, despite the voluminous discovery in this case. Further, an oral argument, lead counsel indicated that her practice is to personally review all the discovery herself rather than rely on associates and staff to review materials to cut through the less relevant information and point to what materials need review by lead counsel. These actions are not indicative of an overburdened defense team. In fact, it is evidence the defendant has been able to capably navigate the discovery given his more than robust motion practice, the scope and breadth of the experts retained, and the disclosures filed, end quote. That's pretty brutal.

[Anya Cain]

Yeah. He's saying, yeah, you've had, you've had time. You don't need more time. There's no problem here. What are you saying? That's what he's saying.

[Kevin Greenlee]

Yeah. And it's like, you know, Ann Taylor, like, you know, you're, you're complaining about this, but you want to jump onto yet another similar case. So, you know, can't be that overburdened. And maybe this is a you problem as far as delegation issues go. You know, we hear from lawyers. They have, sometimes lawyers have trouble delegating. They can, they, they want to do it themselves because they feel like they are the ones who need to do it. But in a case like this, with such voluminous discovery, perhaps that's not the best practice. So the judge is siding against Coburger on this. This, you know, he's not going to, he's not going to issue Any penalties against the state or anything like that.

[Anya Cain]

When you talk about lawyers being potentially control freaks, you're not talking about.

[Kevin Greenlee]

Oh, no, no, no.

[Anya Cain]

Not personal experience.

[Kevin Greenlee]

Oh, no, not at all. Sir, your face. Thank goodness.

[Anya Cain]

Calling me out in the middle of.

[Kevin Greenlee]

The show, calling out the lawyers. The lawyers have been called on the carpet by me. But, yeah, I mean, one thing that's fun about this order is it has the phrase hot documents in it, but that's neither here nor there. I just found that amusing. So let's move on to the next order with that. Really insightful. With that insightful statement, we can segue. This is the order on defendant's motion to strike death penalty regarding autism spectrum disorder. So now we're seeing another run at the death penalty penalty. There's a lot of work being done by Taylor's team on the death penalty aspect of this. That makes sense. That's probably the most important thing. Their client could be killed by the state and executed if they fail to get the death penalty off the table. So it makes sense to me that they are putting a lot of resources into that.

[Anya Cain]

And also it makes sense. No matter how you personally feel about the death penalty, taking the life of a human being is one of the biggest powers the government potentially has. It should not be easy. You. If. If you. If they. The defense wants to make you jump through a bunch of hurdles in order to make that happen, I say fine.

[Kevin Greenlee]

Yeah, I mean, certainly their jobs. And this is how we start. So I'm going to read the opening of the order. Quote. Having been recently diagnosed with autism spectrum disorder, ASD by clinical neuropsychologists retained by his defense team. His defense team, defendant seeks to strike the death penalty as sentencing as a sentencing option, arguing it violates his constitutional rights. He contends ASD is the functional equivalent of an intellectual disability, which is categorically recognized as disqualify as a disqualifying exemption to the death penalty, even if the court rejects categorical approach, he argues the death penalty option should nevertheless be stricken in his case, given the intense media attention on the defendant's disability. End quote. So we actually found out more about Kohberger's autism diagnosis. This was something I was really curious about because I was wondering, is this something that he was diagnosed with as a child long ago, prior to, you know, adulthood? Is this something he was diagnosed with in the course of these proceedings? And the answer is the latter. He was recently diagnosed. This was after he's in jail and, you know, being incarcerated for what, you know, he's alleged to have done. And what we find out is a little bit of interesting information about how that happened. So clinical neuropsychologist Dr. Rachel Orr was the one who did a neuropsychological evaluation of this defendant and she issued the report diagnosing him. And she also interviewed not only CO Burger, but his family and quote, other relevant adults from defendants childhood, including former teachers, end quote. And she administered several cognitive tests. She looked, she observed his behavior and quote, based on her evaluation, Dr. Or diagnosed defendant with Autism Spectrum Disorder Level 1 without accompanying intellectual or language impairment, end quote. These days we're all vulnerable to surveillance and data breaches. Delete Me is a service that lets you remove your personal data online. And it's easy, quick and safe.

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We love Deleteme. We've used it long before this company even sponsored us. The reason we love it is because it works. And to be frank, we've run into our fair share of weirdness online. That includes all manner of threats, a few stalkers, and one person who even said they wanted to harm Kevin so that they could marry me. So fun. The thing is, when you run a true crime podcast and you talk about some of these cases, you just attract the attention of some people who are kind of unhinged. And seriously, that can be pretty scary.

[Anya Cain]

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[Anya Cain]

So the key thing to remember is when lawyers make arguments, one thing they like to do is the sort of thing that maybe your child does or maybe your spouse does, where they say, well, you let me do this in this case. This other case is similar to that, so therefore you should let me do that here. Like if Anya says, kevin, it's your birthday, it's a special occasion, let's go out to a fancy restaurant, then what? What if I then say, with the next month, Anya, it's the weekend, that's a special occasion. You've established a precedent that if there's special occasions, we get to go to fancy restaurants. She might say, well, a birthday is just different from a regular weekend. You just can't.

[Kevin Greenlee]

And also, Kevin, Captain D's is not a fancy restaurant.

[Anya Cain]

And so what they're doing is there's an established precedent that you cannot execute a person with an intellectual disability. And golly, having autism is just like that. So therefore that should apply. And so.

[Kevin Greenlee]

Well, yeah, we're going to get to that. We're going to get to what the judge is saying, but first, we're even just finding out, does this guy actually have autism?

[Anya Cain]

Right.

[Kevin Greenlee]

And what does that mean? We heard from people, we heard feedback from people. As we've talked about autism spectrum Disorder, we've heard people who have autism and one thing we hear a lot is you meet a person with autism and you meet a person with autism, it can look different and can manifest differently in people, even though there may be commonalities. And one thing that is really important that we may have kind of skipped over, but we can go into more depth here is they describe him as level one. Now when we're looking at autism spectrum disorder, when you're talking about levels, that refers to essentially level of support necessary. So there's, there's three levels. Um, level one requires support, but perhaps the least amount of support for someone with asd, Level three requires the most support. So that the symptoms are going to be looking different and the support needs are going to be different from those two individuals. And in addition to that, we actually get some really interesting information about CO Burger himself. So I'm going to go into that a little bit because I think it just kind of gives more of a picture of who this guy is and what, what he's, what he's like. And I think that's something that we've all been probably pretty curious about. So one thing we found out was Dr. Orr, in talking with people who knew him, said that he had always, since early childhood, had difficulty in social settings. He had trouble, quote, adjust. He had. He had trouble adjusting his behavior, quote to suit the social context. He had hard times in conversations. There were like non verbal behavior things regarding personal space. He could really had struggled to take others perspectives into account and quote. She notes that these difficulties played a role in the eventual termination of his funding for his graduate program. At the time of his arrest, he was pursuing a PhD in criminal justice and Criminology at Washington State University. End quote. So indicating here that there was a problem with his behavior or in some way that actually jeopardized his graduate degree. So that's interesting. In their communications, in their sort of interviews, or saw this is what. Or described the defendant as demonstrating, quote, some typical social behaviors such as fairly consistent though intense eye contact, polite demeanor and social conversations and social conventions, eg, shaking hands upon greeting, engaged in conversation and was never overtly inappropriate. However, Dr. Or also noted social behavior consistent with that reported by others, such as lack of fluidity in his verbal interactions, awkward comments or abrupt responses, inconsistent understanding or acknowledgment of humor and occasional intense gaze. She noted that he had poor reciprocity. Reciprocity. I don't know how to say that word. I'm sorry. Of interaction, including very frequent refocus of conversation back on his own experiences. Or unusual responses to my sharing. She also noted his lack of close friends and his poor insight into his role in relationships. And Dr. Orr further observed in deficits in defendant's nonverbal communication, noting poor integration of verbalizations and eye contact, limited use of descriptive gestures, restricted range of affect, atypical tone. Dr. Orr observed that defendant was generally clearly articulated and his speech was appropriate in rate and volume, but overall monotone and end quote. He has an overly formal affect and kind of extensive vocabulary, often over inclusive and disorganized, highly repetitive with frequent scripted phrases. For instance, he. He likes to say, objectively speaking, mind you, to be fair and moral of the story. Those are his favorite phrases. He'll kind of rock back and forth with his upper torso while he's sitting down. A lot of repetitive language, lots of scripting, rigidity in thinking, and very interested in kind of random topics that didn't really have anything to do with what they're talking about, like forensic psychology. And very, very easily distracted by sounds. So, yeah, a lot of those things certainly sound like autism to me. So that's what they are talking about. But what you just hinted at is, what does this matter?

[Anya Cain]

Well, it doesn't matter. Certainly it's possible for a person to have autism and have an intellectual disability. If that's the case here, just say he has an intellectual disability and that should be the reason the things you describe do not sound to me to be tantamount or overly similar to an intellectual disability.

[Kevin Greenlee]

We know it's not. He has an IQ. He has an IQ of 119.

[Anya Cain]

So this is a person. The thinking is, if someone has a severe intellectual disability and they don't even understand that what they did was wrong, it seems abhorrent to kill them for their crimes. This man obviously doesn't fall into that category. And to say that the symptoms Anya just described that he supposedly has are similar to an intellectual disability just seems not to be a terribly convincing argument.

[Kevin Greenlee]

He had a 4.0 GPA from his master's program, and quote, at the time of the homicides, he was enrolled in a doctoral program. His experts have described him as highly intelligent, having strong verbal abilities, abstract reasoning, memory, concept formation and reading skills. They noted no evidence of formal thought disorder or thought disorganization. He understands the proceedings against him and the penalty he is possibly facing. He is generally clearly articulated and demonstrated some typical social behavior, such as fairly consistent, though intense eye contact, polite demeanor, and social conventions. There's no indication he is susceptible to false confession, nor is there anything approaching Confession in this case to the court's understanding. In fact, Dr. Ryan notes that defendant continues to adhere rigidly to the belief that he will be found not guilty. While he is noted to have flat affect and other physical mannerisms that can potentially be interpreted by the jury as lack of remorse. Atkins demands more of a reduced capacity than this. Further, any danger that the jury will interpret as affect of lack of remorse can be mitigated by addressing ASD and voir dire and through expert testimony and evidence in the penalty phase, end quote. So he's saying if you're concerned about this when it comes to sentencing, if it comes to that, then just bring up the autism then. And he's also noting that Atkins is what you're talking about as far as Atkins vs. Virginia was the case that holds that individuals who commit murder before the age of 18, individuals incompetent to be executed and in the intellectually disabled cannot be executed. That basically that those, those three categories should be exempt. And it's very obvious that he does not fall into that. And that's what the judge is saying now. The judge is saying, figure it out during penalty. This, this doesn't count. He can't, we can't rule out death penalty because he's autistic. Now for the next order. 3 out of 4. This is the order on defendant's motion. Eliminate revague and undisclosed expert testimony. Quote, defendant moves to limit or exclude several different experts disclosed by the state on the grounds that their disclosures are deficient in some regard. The state responds that it has complied with all discovery obligations and its disclosures are sufficient. It adds that several defendants challenges are fodder for cross examination, not exclusion. Oral argument on the motion was held on April 9, 2025, after which the court took the matter under advisement. The court finds no basis to exclude or limit the or limit the disclosed expert testimony at the time. But if the defendant believes an expert is testifying at trial outside the scope of his or her disclosure, he may object at the time and the court will consider it, end quote. So pretty self evident there. You know, if you want to deal with it, deal it on, deal with it on cross examination. It doesn't need to be excluded. Let's talk about a couple of the witnesses listed in this order because I just think it's interesting for what we might expect a trial. First we have Jenny Ayers, a forensic scientist with the Idaho State Police Forensic Services. She does evidence collecting and she's going to talk about collecting DNA, blood stains, fingerprints, hair and Fibers, shoe impressions, various things about DNA and quote, defendants challenges misapprehend the type of expert Ms. Ayers is much like law enforcement, Ms. Ayers is a hybrid factor SL expert witness as opposed to a traditional expert. She will be educating the jury on crime scene investigation procedures to provide foundation for her testimony regarding the work she and her team performed in this case. As outlined in lab reports 25 and 11 and the accompanying field notes, the testimony is factual in nature, despite that fact that it requires special knowledge, skill, experience and training, end quote. So fact versus expert witness, what is that sort of referring to as far as what's the difference?

[Anya Cain]

So there's between a fact evidence and.

[Kevin Greenlee]

An expert witness, a fact witness and an expert witness.

[Anya Cain]

A fact witness describes, testifies to the actual details of what may or may not have happened based on their own observations. So a fact witness would be, I saw Anya go into the grocery store and slip a box of cereal into her purse. An expert witness would be someone who did not see anything relevant to the crime, but has expert knowledge of perhaps here's how you look at someone's mental state when they did this or that or things of that nature.

[Kevin Greenlee]

And as the judge noted, there can be hybrids, and often that's in law enforcement. Because the law enforcement witness might be able to say, I observed the suspects doing X, Y and Z. But they can also say, in my training as a detective, I've been told to look for this, this and that. So that's what exactly that's clarifying here. The next one they single out is Special Agent Nicholas Balance. He is a Federal Bureau of Investigation special agent, and he analyzed cell phone records. In this investigation, he's going to talk about AT&T cell phone records for Coburger, Madison, Mogan and Zanner Kernodle and his own drive testing measurements to determine the use and general location of their cell phones between June 2022 and November 2022. And he has a large, long report about this. And so he's going to be getting into this. So this is one of the people who kind of came under attack from the defense's cell phone data expert, Syray. We recently did an interview with expert Mark Poff, who talked a little bit about Cyray and some of his concerns on that. And Ray kind of filed some pretty wild affidavits where he was sort of alleging that the FBI was like, hiding information. And it was just sort of like, very clearly over the top because, like, what he was asking for is something that would have very much been deleted had the FBI not gotten it within 7 days of the crimes happening and they didn't even know who Coburger was. So like how could they ask for a guy's phone records if they didn't know who that guy was?

[Anya Cain]

Exactly.

[Kevin Greenlee]

So, so basically. And what, what, what, what Ray was essentially saying is balance has all this information that he's not giving me and there's a discovery violation. So this is what the judge says, quote. However, the fact remains that defendant has all the facts and the data that agent Balance relied upon to form his opinions which are expressed within his cast report, end quote. So he's saying just kind of like, no, the next one. Married couple, Heather and Jared Barnard. They are from. They're both digital specialists with Celebrate, which is a company that is, you know, sort of analyzing cell phones, things like that. And they. Yeah. So, quote, nowhere do the disclosures or the report indicate that the Barnharts will testify about habit evidence. Rather, the disclosures state they will testify to their findings pertaining to the defendant's activities on his PC and cell phone for a period of time before and after the homicides and why the gaps in data over that time period are abnormal, end quote. So something about co breaker's behavior may have changed on his personal computer around this time. And that'll be interesting to see. Michael Douglas is the next one. Forensic accountant for the FBI will talk about financial transaction data for the defendant, the four victims and the two other roommates who survived us. Yeah, so they. The defendant takes issue with him possibly talking about his spending habits, quote. However, Mr. Douglas's disclosure makes clear that he is intended as a fact witness and is only being disclosed as an expert in the event the court determines his testimony was based on specialized knowledge under IRE 702, end quote. And also a number of ISP forensic lab scientists, a number of forensic detectives and a toxicologist to talk about the intoxication levels of Madison Mogan and why that would have prevented her from fighting back. So the judge obviously didn't find any of this compelling. And you know, are you surprised by that?

[Anya Cain]

No, not at all.

[Kevin Greenlee]

What do you, what do you think about this? Like some of these things, like they're kind of defense has to shoot their shot obviously, but dude, some of these seem pretty thin. Thin.

[Anya Cain]

You have to shoot your shot and you want to get your objections on the record.

[Kevin Greenlee]

But at what point are you just kind of wasting the court's time? Because it feels like a lot of this was in that category, at least in my non lawyer opinion.

[Anya Cain]

I think Defense attorneys, for better or for worse, would argue that it's best to be overly broad in terms of objections and stuff like this. You never know what's going to catch the attention of a judge. You never know what might catch the attention of an appellate judge down the road.

[Kevin Greenlee]

So you make a record and then the appeals court can eventually look at it and at least you put it on the record so they can consider it. Yes, but all this seems incredibly weak.

[Anya Cain]

I don't disagree, but certainly if I was on trial for my life, I would probably encourage the might attorneys to be extremely broad with all the objections they can think of.

[Kevin Greenlee]

Makes sense. The last one we're going to talk about is the order on state's motions in limine regarding text messages and 911 call. So this gets into a lot of information on the. On essentially the night of the killings and what the witnesses say. Of course, some of this you may already know, but I think this has some interesting details and I'm going to read from it so we can kind of get into those details. Quote, DM and BF are the two surviving roommates of 1122 King Road. @ the time the homicides were believed to have occurred, DM saw a mass intruder in the house and began calling and texting the other roommates, including BF. Approximately eight hours after DM saw the intruder, BF called 911 from her phone. Before the court is before the court is the state's motion to allow the text messages by DM and BF Testimony about their conversations with each other about what DM saw and the 911 call. State argues that these communications are either not hearsay or qualify under one or more exception to the hearsay rule. It also asks that the Transcript of the 911 call be provided to the jury to view. While listening to the audio. Defendant challenges several of the communications and objects to the use of the transcript, end quote. So hearsay, that's something we certainly hear a lot about, right, Kevin?

[Anya Cain]

Yes, we do indeed, in this case.

[Kevin Greenlee]

And in many cases, and we've talked about it extensively on this show. But just for people who are following along and kind of getting used to some of this terminology, what are we talking about when we're talking about hearsay?

[Anya Cain]

We want evidence that is considered in a trial to meet certain standards. And one of the standards is we want the things people say to be things they have sworn to. You know, take the oath to tell the truth, the whole truth, and nothing but the truth. Because our thinking is that if people are swearing that oath. And they are saying what they. They're saying under the penalty of perjury, which means that if they're caught perjuring themselves or saying something that's not true, they can be punished for it. In those circumstances, you're more likely to get the truth. And so that means when you have statements that are unsworn, that take place outside of court, those are held to have a lower value and so usually are not included in court sessions. And those unsworn testimony, the unsworn statements outside of court, called hearsay.

[Kevin Greenlee]

Okay, can you ever bring hearsay into a court case though? Is that just totally impossible?

[Anya Cain]

There's lots and lots of exceptions.

[Kevin Greenlee]

Okay, so if you can match whatever the statement is to one of those exceptions, you could possibly get something that might otherwise be considered hearsay into trial. So that's what we're trying to do here. As far as the prosecution is concerned, they're saying, yes, it's hearsay, but it's an exception. And we get some information factually from this judge's order that I think it's interesting to read. He discusses how dmbf, Kaylee and Madison, they're all roommates and their fifth roommate is of course, Zanna. And they are. It's the early morning hours of November 13, 2022. At 2:00am, they are all hanging out in Kaylee's bedroom. They're talking. Then they start to go to bed. Zanna is not there. Zanna is out with her boyfriend, Ethan Chapin. So they're not home yet. The roommates are all debating should we go out to a food truck or a late night snack? DM at 210 texts an Uber driver she knew and says, hey, like, are you driving? But they all decide just to go to bed instead. 4am, DM says she hears strange noises and crying coming from the bathroom. Quote, she opened her door at one point and saw a man dressed in all black with a ski mask on walking by her bedroom door. She then placed calls and text the other roommates to see if they were awake. Only BF who resided on the ground floor answered. They spoke once for 24 seconds, during which DM told BF she thought she heard something. They spoke again minutes later for 41 seconds. When DM told BF she saw Amanda's ski mask leaving the house. They then exchanged the following text messages. So these are text messages I think we've kind of seen. It's basically they're both expressing confusion. What's going on? What's happening? I saw Xana wearing all black. I'M freaking out. Someone saw like a ski mask. They're, they're freaking out. And one of them saying DM is saying my phone is going to die and BFC come to my room. So they're kind of, they're kind of freaked out. And DM also tries around this time contacting Ethan Chapin, tries calling Kaylee and Zanna. They're not responding. DM exits her room, runs towards BF's room. On her way, this is crucial quote, on her way, she noticed Zanna lying on the floor of her bedroom with her head towards the wall and her feet toward the door. DM thought Zanna was drunk. End quote. There in for me lies so much. So much hatred and kind of like suspicion, I think has needlessly been exhibited towards these roommates by sort of random members of the public. You know, I don't believe their story. Why would anyone act like this? They were drinking. Everyone was drinking. They're in college. It was a night where they were drinking and everyone is, they're assuming everyone's drunk. So you see your friend in that situation, you think, oh, she passed out and missed the bed. You don't think. You think. You see a man walking around the house where there's people in and out and you think he just hooked up with somebody or he was a friend who was visiting one of my roommates in college. Nobody wants to be the girl who has a freakout and calls campus police and have them come in and basically bust everyone for being drunk. Okay, like, that's not, that's something that would be at top of mind for people. Everyone is dead and murdered would not be top of mind for most normal people. And all of us, we're all true crime people. Maybe we would have handled things differently, maybe not. You know, I think we have to put ourselves in the heads of intoxicated 20 somethings who are not expecting for a murderer to visit their house and kill their friends. And if we can look through things through that lens, through a drunken lens, through a lens of assuming everyone else is partying, I think we can find a little bit more empathy and understand the behavior a lot better. I agree you were never a drinker in college, but I certainly was. And a lot of this, when I look at it, I'm like, well, nowadays I'd be like, call the police immediately. But back then, you know, college drunk, Anya. I don't know. I don't know how things would have gone. I was still pretty paranoid back then, so maybe I would have done something differently. But I'm not going to judge other people for not necessarily being as paranoid as I am.

[Anya Cain]

She's been criticized by a lot of people, and I agree it's unjust. But let me ask you, Anya, if she had immediately called the police, what would have changed? Would her friends have lived?

[Kevin Greenlee]

No.

[Anya Cain]

Would Kohlberger have been captured quicker?

[Kevin Greenlee]

In my opinion, no.

[Anya Cain]

Yeah.

[Kevin Greenlee]

I've not seen any indication.

[Anya Cain]

So nothing she did had any consequence.

[Kevin Greenlee]

I. I don't see how it could have. It didn't. She didn't go into anyone's room and disrupt the DNA or ruin evidence. It's. There was a delay, so. Yeah, that's a really good point, Kevin. So they talk about how between 5am and 6.30am, DM engaged in activity on her phone. She's editing, deleting images, videos. Phone activity ceases until 8:05. Then she gets on Instagram for a few minutes. Then at 10am, gets on Instagram again, starts talking over Snapchat. At 10:23, she texts Madison, are you up, up or are up? And no response. And 11:29am Text Kaylee again, are you up or are up? And nothing. So DM starts checking Ethan and Zanna's Snapchat locations. 11:40, DM's father texted her about scheduling a time for a chat. DM responded, receives two texts from a person named Jenna stating, bro, and do you guys need me to come get you? And DM calls her friend E.A. at 11, 11:50. She says she's scared. She wants someone to come check the house with her. They all meet on the bottom house of the floor. They go up the stairs to the second floor. Hhj, who's the boyfriend of ea, goes to the kitchen to grab a kitchen knife. Yeah, they. They see Xana. DM sees Zanna on the floor for a split second, starts crying. And I think they start realizing something's very wrong because H.J. says, like, let's like, back up and not go any closer. HJ exits the house, tells them to call 91 1, and they. They think someone might be unconscious. They're not sure what's going on. Let's go back and forth and read the exchange between several people and the 911 operator. It's a bit unclear, so why don't you be the 911 operator, I'll be everyone else. It's. It's unidentified females as well as DM.

[Anya Cain]

Okay, I'm the 911 operator. Tell me exactly what's going on.

[Kevin Greenlee]

One of our. One of our roommates who's passed out and she was drunk last night and she's not waking up.

[Anya Cain]

Okay.

[Kevin Greenlee]

Oh, and they saw some man in their house last night. Yeah.

[Anya Cain]

And are you with the patient?

[Kevin Greenlee]

Hi, this is dm.

[Anya Cain]

Okay, need someone to keep the phone. Stop passing it around.

[Kevin Greenlee]

Can just tell. Can I just tell you what happened?

[Anya Cain]

Pretty much what is going on currently? Is someone passed out right now?

[Kevin Greenlee]

I don't really know, but pretty much.

[Anya Cain]

At 4:00am Okay, I need to know what's going on right now. If someone has passed out. Can you find that out?

[Kevin Greenlee]

Yeah, I'll. Come on. We gotta check, but we have to. She's passed out. What's wrong? She's not waking up. Zanna. So there's obviously kind of a chaotic situation at the end there. It's a bit chaotic and hard to follow. So imagine a lot of upset and a lot of emotion. It's very. It's very sad, honestly. So what this. What the state is asking for is all of these various things to be allowed in. The defense is saying no, and the judge is sort of looking at things. The judge is looking for things like present sense, impression, exception, which quote, authorizes the admission of hearsay if it is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it. So this is just stuff like that would be. You know, it's immediately. It's. There's no time to kind of pretend. And I mean, is that basically what that is?

[Anya Cain]

Yes.

[Kevin Greenlee]

And also, the quote excited utterance exception to the hearsay rule authorizes the admission if. Of hearsay if the testimony recounts a statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition. End quote. So this can be a lot of 911 calls. Because if I'm seeing some crime in progress and I'm calling 91 1, you know, I'm saying, oh my gosh, someone is like holding up a store. You know that that's a startling, scary event. I'm seeing it.

[Anya Cain]

You have not time to cook up a lie. So it's more likely to be true.

[Kevin Greenlee]

Yes. So first the judge looks. This is. This is. The judge finds the text messages and verbal conversations between DM and BF are likely admissible. That they are not hearsay. The acts of making phone calls, sending or receiving texts, other phone activity, accessing social media. They're saying hearsay only captures an oral assertion, written assertion, or nonverbal conduct intended as an assertion. End quote. So the things they're doing on their phones isn't hearsay because it's just their actions. Then the text to the Uber driver. They note that the defendant didn't really challenge that and the court finds that is not hearsay. The State is trying to introduce it to establish a timeline. The text message is between 4:22 and 4:26. These are four minutes between DM and BF and then also one from DM to Kaylee. Those are admissible as either present sense impressions or excited utterance according to the State. Defendant says no. And what the judge said I thought was really interesting. Quote first, the present sentence impression exception does not require a startling event. It simply requires the speaker describe or explain a condition while personally perceiving it or immediately thereafter. End quote. So the judge says those are likely to be admissible as far as that goes. Quote in addition, the events are sufficiently startling to both DM and BF for purposes of the excited utterance exception. DM and BF are young female college students and the self described scaredy cats of the house. They were awoken from sleep after a night of drinking, with DM reporting she heard noises and saw a masked intruder in their home. None of the other roommates were responding to their calls or texts, further indicating something was amiss. It would be potentially terrifying for anyone, including these young women, to argue that they would have run out of the house or called someone else for help had they really been startled. Unempathetically ignores these circumstances and the trauma and confusion they were evidently experiencing, which likely offset logical thought. Indeed, the girl's fear and confusion is evidence in their words, with both questioning what was going on, DM stating she was freaked out, scared and confused, and BF attempting to get them together quickly for safety. They're clearly under stress and attempting to make sense of a frightening situation, end quote. I really appreciate what the judge is saying there as far as unempathetically judging people. Yeah, so kudos to him. And next one, DMs texts to the victims. Quote Again, the court does not find these texts to be assertions. They're inquiries, not declarative statements, even if they were assertions. However, if the State intends to admit the statements to establish a timeline of events, they are not hearsay because they're not offered to establish the truth. Therefore they are not barred by ire801, end quote. Yeah, a lot of this is they're saying as long as the state can build the foundation for these things, they can come in. And this also goes for verbal communication between BF and dm. They can testify about the content of the calls, the text, the conversations. These are obviously going to be pretty important witnesses to the state and basically what the court is saying, they're going to reserve ruling on that and deal with any hearsay objections. At the time. I think they said there were a couple of moments in the 911 call where there could be hearsay, but what it sounds like is they are going to just go ahead and potentially redact. What do you think about that?

[Anya Cain]

I, I think it's a, it's a sensible ruling. It looks like the defense had a, a lot of defeats in this, in this round.

[Kevin Greenlee]

Oh, yeah, it was pretty much a blowout. Oh, also a transcript of the 911 call will be allowed as demonstrative evidence. So. Yeah, I mean, they lost everything. I don't think that's particularly surprising. Their arguments weren't really strong and the facts are not really on their side for a lot of this. The law is not on their side. They gotta try though, and that's their job. So we shouldn't be critical necessarily of, of them for doing their jobs. But we can also, as members of the public, I think it's fine to say, like that wasn't a very right strong argument. It's just, it's not personal. It's just, it just wasn't. I think, I think they have a real. I think Coburger's team has an uphill battle that is a hard position to be in for them, I think.

[Anya Cain]

I agree completely.

[Kevin Greenlee]

So is that all we have to say about Idaho? For now we have. All right, well, we'll keep, keep you posted on other developments in that case, but thanks for listening.

[Anya Cain]

Thanks so much for listening to the Murder Sheet. If you have a tip concerning one of the cases we cover, please email [e-mail] if you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[Kevin Greenlee]

If you're interested in joining our Patreon, that's available at www.patreon.com murdersheet if you want to tip us a bit of money for records requests, you can do so at www. Buymeacoffee.com murdersheet. We very much appreciate any support.

[Anya Cain]

Special thanks to Kevin Tyler Greenlee, who composed the music for the Murder Sheet and who you can find on the [e-mail] if you're looking to talk with.

[Kevin Greenlee]

Other listeners about a case we've covered, you can join the Murder Sheet discussion group on Facebook. We mostly focus our time on research and reporting, so we're not on social media much. We do try to check our email account, but we ask for patience as we often receive a lot of messages. Thanks again for listening.