4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, 2022 #79

[Nova]

Interesting. Now I'm trying to figure out how that would help either the State's case or the defense.

If the victims, or some of them, were chemically impaired, it might forestall a claim that no single intruder could have possibly killed all four of them in such a short time period.

Just MOO.

[ETA this is not a knock against any of the victims or survivors or their friends. I could not care less if they were drinking or doing other recreational drugs. I myself not only drank as a freshman and sophomore (18 was the legal age back then), but like almost everyone, I DROVE under the influence back when penalties for doing so were less severe. (I haven't done so in decades.)

I'm only speculating on how the toxicology results might be used.]

 

[Nova]

@BeginnerSleuther, I think your original opinion is quite valid, and I'm providing the links to support this.

IMO the prosecution would know what valid affirmative defenses BK might have and if there were evidence to support those defenses. They would know this because the laws for murder are codified, so it's not a grab-bag of excuses.

Here are the ID statutes for Justifiable Homicide, Excusable Homicide, and Manslaughter. Those are the statutes that would allow for a 'yes, I did it, but... ' affirmative defense.

Chapter 40 – Idaho State Legislature

legislature.idaho.gov

Manslaughter, though I doubt this could be reduced to manslaughter:

Section 18-4006 – Idaho State Legislature

legislature.idaho.gov

Justifiable Homicide: Section 18-4009 – Idaho State Legislature

Excusable Homicide: Section 18-4012 – Idaho State Legislature

That's it. We would have to look to case law to see how the court has interpreted those laws specifically, but they're pretty straightforward on the surface. There may be variations on the themes, but the affirmative defenses from those would be along the lines of which, on the surface, don't seem to fit:

Yes, but it was self-defense so they didn't murder me or commit a felony or hurt another.
Yes, but I was defending my home or business or car, etc.
Yes, but I was defending my spouse, child, etc.
Yes, but I was apprehending them.

or

Yes, but it was an accident.
Yes, but it was in the heat of passion.

And insanity is not a defense in Idaho, so mental condition is not a defense - scratch that one from the possible defenses:

Section 18-207 – Idaho State Legislature

legislature.idaho.gov

And unlikely any of those above would work, but the prosecution is aware of the legislation and what would constitute an affirmative defense in ID, so they would not have to throw spaghetti at wall IMO. Instead, they would look for exculpatory evidence that showed that any of the above applied. It's not a wild guess without laws to guide them.

Also, the burden of proof is discussed in detail here for those who want to dig into the ID court's analysis
(ISC Introduction & Use),

but the short version is this:

Based upon these decisions, the general rule in Idaho is that the defendant in a criminal case has the burden of producing evidence regarding any defense, but he does not have the burden of persuasion. Once the defense is properly raised, the state must disprove it beyond a reasonable doubt... In drafting these instructions, the committee has taken the position that once a defense is sufficiently raised, the state must disprove that defense beyond a reasonable doubt. The burden of persuasion has been placed on the defendant only where the legislature has expressly stated that the burden of persuasion is on the defendant and doing so would not violate the Due Process Clause of the federal constitution.

So BK can raise one of the defenses above, if he can produce evidence regarding those defenses, but that would seem unlikely - at this point. As I said above, I think a straight-up "Not Guilty" plea is more likely. Hard to fit what happened (4 brutal murders) and the facts as we know them at this point in time into an Affirmative Defense IMO. And "Not Guilty" allows the defense to chip away at the prosecution's BARD without providing evidence of an affirmative defense.

I know you weren't the first to use it, but my personal opinion is that "Yes, I did it, but..." is a misleading way to explain an affirmative defense. (I was a juror on a murder case where an affirmative claim of "self-defense" was attempted.)

An affirmative defense is not so much "I did it, but..." as it is "I didn't commit murder, I was defending my life." Or "I didn't commit murder because I was out of my mind and didn't understand the consequences of my actions at the time of the incident." Etc. and so forth.

A subtle distinction and, of course, we all knew what you meant, but the distinction is legally important.

Murder is a crime. Any affirmative defense starts with "it wasn't really murder (even though somebody died)". The same may be said of any attempt to get the jury to settle on "manslaughter" instead of "murder".

The above is MOO based on over one hundred pages of jury instructions we received in that murder trial.

I do agree with those who have doubted the facts of the Idaho Four murders will allow a successful affirmative defense (especially since Idaho doesn't allow insanity as an affirmative defense, just as a mitigating factor in sentencing (if I understand it correctly). But who knows what BK's lawyers are building?

 

[Nova]

Is Def't Required to Notify Prosecutor of Affirmative Defenses PRE-TRIAL in ID?

snipped for focus @10ofRods
If ID requires def't to notify the state of all affirmative defenses pre-trial, and if req'mt is in Idaho Criminal RULE 16(c), below, I'm missing it.
Anyone?

But re ALIBI defense specifically, Idaho Criminal RULE 12.1. Notice of Alibi,** states in its entirety:
"If the defendant intends to rely on the defense of alibi, the defendant must comply with Idaho Code § 19-519."

Idaho STATUTE*** specifically requires def't to notify the state pre-trial, of ALIBI -
--- place(s) def't claims to have been when crime occurred;
--- name(s) & address(es) of witness(es) def't intends to rely on to estab. alibi.
Also requires st. to give reciprocal info re witness name(s) & address(es) re establishing def't's presence at scene, and sets deadlines for pre-trial notice; allows ct. to extend deadlines; yadda, yadda.

So except for alibi defense, I'm not seeing that ID. requires crim def't to notify prosecutor of other affirmative defenses pre-trial. ICBW.
Welcoming clarification or correction, esp'ly from our other legal professionals.

=================================================
* I.C.R. 16. Discovery and Inspection | Supreme Court
"Idaho Criminal Rule 16. Discovery and Inspection
"(c) Disclosure of Evidence by the Defendant on Written Request. Except as otherwise provided in this rule, the defendant must, at any time following the filing of charges against the defendant, on written request by the prosecuting attorney, disclose the following information, evidence and material to the prosecuting attorney:

"(1) Documents and Tangible Objects. On written request of the prosecuting attorney, the defendant must permit the prosecuting attorney to inspect and copy or photograph:
(A) books,
(B) papers,
(C) documents,
(D) photographs, and
(E) tangible objects,
or copies or portions of them, that are in the possession, custody or control of the defendant, and that the defendant intends to introduce in evidence at the trial.

"(2) Reports of Examinations and Tests. On written request of the prosecuting attorney, the defendant must permit the prosecuting attorney to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case if they are within the possession or control of the defendant, that the defendant intends to introduce in evidence at the trial, or that were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to testimony of the witness.

"(3) Defense Witness. On written request of the prosecuting attorney, the defendant must furnish the prosecuting attorney a list of names and addresses of witnesses the defendant intends to call at trial.

"(4) Expert Witnesses. On written request of the prosecuting attorney, the defendant must provide a written summary or report of any testimony that the defense intends to introduce pursuant to Rules 702, 703 or 705 of the Idaho Rules of Evidence at trial or hearing. The summary provided must describe the witness’s opinions, the facts and data for those opinions and the witness’s qualifications. Disclosure of expert opinions regarding mental health must also comply with the requirements of Idaho Code § 18-207. The defense is not required to produce any materials not subject to disclosure under subsection (h) of this Rule, or any material otherwise protected from disclosure by defendant’s constitutional rights."

** I.R.C. 12.1. Notice of Alibi. | Supreme Court
*** Section 19-519 – Idaho State Legislature

ETA: Sorry, somehow my post did not show the link to post by @10ofRods.

4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, 2022 #79

This is so darned heartbreaking. All the loss is overwhelming. It really is, well put, @Helechawagirl It is soooo heartbreaking and overwhelming... the only thing that could possibly make this tragedy the least bit better in some small way, will be justice for Xana, Maddie, Kaylee, and Ethan =...

www.websleuths.com

Good point re ID statutes. But I feel a need to add that our laws are a patchwork of statutes, precedents, principles of English common law, and, most of all, judicial interpretations of constitutional (state and USA) provisions.

There's a reason why exculpatory disclosure is called the "Brady rule". It comes from an appellate court's decision in Brady v. Maryland (1963). I believe there's a related case that is often mentioned with Brady. It is no less binding--though defense attorneys believe prosecutors abuse their discretion--than an actual statute.

The same is true of Miranda rights, which we won't find in any state's statute book.

 

[Nova]

How would impairment affect her statement which was given without any other reference point? Due to the mask, her information can only be
"not excluding," cannot be an ID.

I think her statement is very important and will be important, and her level of intoxication is immaterial. It is only an issue because it can be used by the defense as a subtler method of character impeachment.

Well, IF her testimony remains important, then whether she was sober enough to be an accurate witness can surely be questioned!

I don't see how you can have it both ways: her eyewitness testimony is key, but it doesn't matter if she was blind-drunk? I doubt that's going to fly.

AGAIN, this is hypothetical discussion. Neither Boxer nor I are claiming to know that any of the victims or survivors was critically impaired by what s/he consumed that night.

 

[Nova]

I can't figure out how either. Irrelevant and would be inflammatory and victim shaming imo.

Rightly or wrongly, victims aren't at risk of losing their liberty and thus are not protected to the same degree a defendant is.

 

[Boxer]

Well, IF her testimony remains important, then whether she was sober enough to be an accurate witness can surely be questioned!

I don't see how you can have it both ways: her eyewitness testimony is key, but it doesn't matter if she was blind-drunk? I doubt that's going to fly.

AGAIN, this is hypothetical discussion. Neither Boxer nor I are claiming to know that any of the victims or survivors was critically impaired by what s/he consumed that night.

Because her description was given before there was a suspect, it is free of any influence.
She reported what she reported.
Her description just does not exclude BK.

 

[Nova]

Because her description was given before there was a suspect, it is free of any influence.
She reported what she reported.
Her description just does not exclude BK.

Yes, but if she were high on Molly or acid she might have hallucinated the entire encounter. Surely you can see how a tox-screen showing significant impairment would affect how her account might be perceived.

I don't claim to know whether DM's memory of an intruder will be introduced at all or how much weight it will carry. (I fully acknowledge your point that DM never claimed to have "identified" BK, at least as far as we know.)

 

[maconrich]

The recent docs - thank you @Nila Aella ! do substantiate that Det Payne did speak to BK, so that answers that.

from page 3

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/051223%20States%20Response%20to%20Defendants%20Motion%20to%20Compel%20Discovery.pdf

 

[maconrich]

Because her description was given before there was a suspect, it is free of any influence.
She reported what she reported.
Her description just does not exclude BK.

Do we know that for sure? Have we seen the interview dates or times for DM or BF? Were they interviewed more than once? If so, do we know when DM gave her description of what she remembered from the night?

 

[jepop]

Yes, but if she were high on Molly or acid she might have hallucinated the entire encounter. Surely you can see how a tox-screen showing significant impairment would affect how her account might be perceived.

I don't claim to know whether DM's memory of an intruder will be introduced at all or how much weight it will carry. (I fully acknowledge your point that DM never claimed to have "identified" BK, at least as far as we know.)

RBBM: DM's sighting of the masked, male, stranger, who from her POV was athletically built but not muscular and about 5ft10" occurred about seven or so hours before the bodies were discovered and the arrival of LE. IDK,but from my understanding reading here, tox screens are legal for impaired driver's (when pulled over by LE) and other categories of citizens who may be potentially breaking the law. But not surviving victims of crime. MOO

--------------------------------------------------------------------------------------------------Just a general comment bouncing off your post.

Thinking through DM's description of the person she saw that night (per PCA), all it really is is her best attempt to describe the person she saw using positive attributes IMO. MOO as others have suggested many times, the main point of her description is that it cannot exclude the defendant.

No matter the (valid IMO) speculations on here re potential defense tactics to discredit or nullify testimony re basic physical description, is it possible for the prosecution to use a tactic that shows how sure DM is of what she did not see? And ultimately arriving at the same place...that the person she saw cannot exclude the defendant?

Could a witness's testimony include statements such as; 'I saw a male person clad in black, wearing a mask who was not; obese; really musclely/well built; very short; broad across the shoulders?'

For e.g;
q: "what do you mean by tall/5ft10"? a:"well he wasn't really short or even noticeably short, he looked tall and thin to me, he looked taller than me..."; q; "what do you mean by athletic?"; a; "well not big and musclely or wide across the shoulders, and the person didn't look overweight or bulky, they were upright and a bit lanky looking...".

IDK, thinking as I write maybe this would be a bad tactic, because of its imprecision? Maybe negative 'this is not what I saw' statements, defy positive logic and would be impermissable?

 

[Boxer]

Yes, but if she were high on Molly or acid she might have hallucinated the entire encounter. Surely you can see how a tox-screen showing significant impairment would affect how her account might be perceived.

I don't claim to know whether DM's memory of an intruder will be introduced at all or how much weight it will carry. (I fully acknowledge your point that DM never claimed to have "identified" BK, at least as far as we know.)

MOO Even on a hallucinagen (which seems very unlikely alone at 4am) her description does not exclude BK.

 

[jepop]

MOO Even on a hallucinagen (which seems very unlikely alone at 4am) her description does not exclude BK.

Just hypothesising in a general sense; I'd think it's probable someone who was on hallucinagens might recall an incident like this, hours later, somewhat differently (a floating stranger clad in...stripes), if at all. MOO. So assuming hypothetical witness is being sincere and honest, which I do, then said witness's straighforward description of a strange person may suggest no major impairment. MOO.

It follows that defense would, hypothetically, have to do more than try to suggest major impairment of a witness, they'd also be required to insinuate the witness may have been dishonest/lied when recollecting. A sympathetic, victim friendly jury might not like that. Nor a judge. MOO

 

[Cool Cats]

Just hypothesising in a general sense; I'd think it's probable someone who was on hallucinagens might recall an incident like this, hours later, somewhat differently (a floating stranger clad in...stripes), if at all. MOO. So assuming hypothetical witness is being sincere and honest, which I do, then said witness's straighforward description of a strange person may suggest no major impairment. MOO.

It follows that defense would, hypothetically, have to do more than try to suggest major impairment of a witness, they'd also be required to insinuate the witness may have been dishonest/lied when recollecting. A sympathetic, victim friendly jury might not like that. Nor a judge. MOO

Are There Limits to Attacking a Witness's Credibility?​

Yes, and it's the judge who has the final say. When a lawyer wants to impeach a witness during a trial before a jury, rules of court will often require that the lawyer tell the judge and opposing counsel in advance, alerting them to the statement that the lawyer intends to use. That preview is necessary because

the judge has the power to disallow the impeachment if the judge thinks that its prejudicial impact on the jury will outweigh its value in calling the credibility of the witness into question.

Lawyers can take various steps to attack the credibility of witnesses (known as “impeaching” a witness). There are a few basic methods that can be used to discredit witnesses:

• Cross-examination. After a witness has testified, the lawyer for the other side can cross-examine the witness, asking questions meant to elicit answers that could raise doubts about the witness’s credibility.
• Other witnesses. Whenever possible, attorneys will try to call other witnesses whose testimony contradicts or at least calls into question testimony by a witness for the other side.
• Outside evidence. Lawyers may also introduce outside ("extrinsic") evidence that isn’t directly related to the case but is relevant to a witness’s credibility, such as documents showing the witness’s financial interest in the outcome of the case, social media posts showing that the witness is friends with the defendant, or the witness’s criminal record showing prior convictions for felonies or crimes involving dishonesty. State and federal courts have different rules on what kinds of extrinsic evidence may be used to impeach witnesses.

What Makes a Witness More or Less Believable?
Juries may consider many different factors when they’re deciding whether they believe witnesses’ testimony, including:

• Do the witnesses have a personal or financial interest in the case? For instance, do they have a relationship with the crime victim or one of the parties (the defendant or prosecution)?
• Did the government offer them leniency or immunity for their own possible crimes in return for their testimony?
• Are the witnesses biased for or against either party?
• Is the testimony clear, consistent, and convincing?
• Does other evidence support or contradict what the witnesses said? This could include a witness’s own previous statements that contradict the testimony at the trial.
• Do the witnesses have a reputation for being honest and trustworthy?
• Was there anything that hindered the witnesses’ ability to see or hear the events they testified about? Do they have visual or hearing impairments? Were they under the influence of drugs or alcohol at the time?
• Do the witnesses’ appearance and demeanor support or undermine their credibility? Do they appear confident or uncertain of their testimony? Juries might be less likely to believe witnesses whose age or mental condition suggests memory problems.

https://www.lawyers.com/legal-info/criminal/criminal-law-basics/whats-impeachment-of-a-witness.html

https://www.lawyers.com/legal-info/criminal/criminal-law-basics/a-credible-witness-is-trustworthy-and-believable.html

 

[maskedwoman]

I think the new attorney who was recently added to BK's defense team will try to get the description of the person DM describes thrown out, or at least put DM's description in doubt by the jury. The new attorney is an expert in eye witness testimony and had a famous case on America's Most Wanted overturned due to issues related to eye witness testimony.

I suspect the bushy eyebrows testimony and height and physique of the person DM described will be put into question by this new attorney, along with the experts who she puts on the stand regarding witness testimony.

The witness' state of mind and other conditions will be of interest to the experts who will testify about the credibility of witness testimony. DM is certainly a victim, but in a death penalty case, her testimony will come under intense scrutiny as the stakes are so high.

I agree with you, but that scenario really frosts my puppies. Defense attorneys are quick to disparage circumstantial evidence, and now we have attorneys specializing in proving eye witnesses aren't worthy either. Pretty soon, no one will go to jail unless there is video evidence of the crime. And then the attorneys will be trying to prove the video can't be relied upon either.

 

[maskedwoman]

The recent docs - thank you @Nila Aella ! do substantiate that Det Payne did speak to BK, so that answers that.

from page 3

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/051223%20States%20Response%20to%20Defendants%20Motion%20to%20Compel%20Discovery.pdf

I wondered if there are ALWAYS notes from an interview, even when the interview is taped. I find taking notes distracts me from the current conversation, and would certainly mean my eye was not always on the person I'm interviewing to catch signs of lying etc. I would probably tend to let the tape catch it all unless I were required by procedure to actually take notes. MOOooo

 

[wary]

Just hypothesising in a general sense; I'd think it's probable someone who was on hallucinagens might recall an incident like this, hours later, somewhat differently (a floating stranger clad in...stripes), if at all. MOO. So assuming hypothetical witness is being sincere and honest, which I do, then said witness's straighforward description of a strange person may suggest no major impairment. MOO.

It follows that defense would, hypothetically, have to do more than try to suggest major impairment of a witness, they'd also be required to insinuate the witness may have been dishonest/lied when recollecting. A sympathetic, victim friendly jury might not like that. Nor a judge. MOO

And, by an amazing coincidence, this witness hallucinated someone whose general description was compatible with the person whose DNA was found on the knife sheath beside the murder victim.

And I would guess that she gave her description long before LE had any of the evidence that pointed toward BK. 1.5 months till the preliminary!

 

[maconrich]

I wondered if there are ALWAYS notes from an interview, even when the interview is taped. I find taking notes distracts me from the current conversation, and would certainly mean my eye was not always on the person I'm interviewing to catch signs of lying etc. I would probably tend to let the tape catch it all unless I were required by procedure to actually take notes. MOOooo

It says recordings. Someone could have transcribed it after the interview? I'm not sure if it's required or not. But I'm with you and agree that taking notes can be distracting.

 

[jepop]

And, by an amazing coincidence, this witness hallucinated someone whose general description was compatible with the person whose DNA was found on the knife sheath beside the murder victim.

And I would guess that she gave her description long before LE had any of the evidence that pointed toward BK. 1.5 months till the preliminary!

BBM: Yea, that's the oddest coincidence of all, & one the defense will no doubt hypothetically rationalise. MOO. Only about 6 weeks to go till PH!

 

[Sundog]

No.

Idaho police use breathalyzers and drug tests for suspected impaired driving. Courts can require drug testing as part of the conditions for Bond/Probation/Parole.

A judge isn't going to let the defense falsely accuse a witness of being mentally impaired and prejudice the jury. The Prosecution would immediately object to this. Maybe one time they could ask a witness if they were impaired but when the witness says "no" they can't keep harping on it.

It is far more likely a defense attorney would question how awake a person was and how dark it was in the hallway - were any lights on?

2 Cents

I agree, the expert on eye witness testimony is likely to testify about the impact of "how awake a person was" and "how dark it was in the hallway," etc.

But the defense doesn't need to accuse a witness of having been impaired, nor do they need to ask the witness this question directly. They can put other witnesses on the stand who have testimony to that effect from parties or other events that night, etc. They don't need to confront a witness directly, thus alienating the jury for this kind of action.

 

[arielilane]

The chilling murders of four University of Idaho students grips the small town of Moscow, Idaho.
@ABC News' @KaynaWhitworth
brings listeners behind the scenes as she investigates the savage murders that captivated the nation.

https://twitter.com/x/status/1658140763258060800

https://twitter.com/ABC2020