Speaker 1: What's up, everyone, and welcome back to the program. In
Speaker 1: this episode, we're gonna dive into Brian Kohberger's motion to
Speaker 1: dismiss the indictment. And this is a pretty long document,
Speaker 1: so we're gonna go through it and we're going to
Speaker 1: see what kind of headway we can make before I
Speaker 1: decide if I'm gonna split it into two episodes or not.
Speaker 1: So let's dive in and let's all be surprised together
Speaker 1: with what we find. Case number c R twenty nine
Speaker 1: DASH twenty two DASH zero zero zero two eight zero five.
Speaker 1: Motion to dismiss indictment on grounds of error in grand
Speaker 1: jury instructions or in the alternative remand for preliminary hearing,
Speaker 1: State of Idaho. Plaintiff versus Brian C. Coburger. The defendant
Speaker 1: comes now Brian C. Coberger buy and, through their attorney,
Speaker 1: Jay Weston Logsden, Chief Deputy of Litigation, and hereby moves
Speaker 1: this Honorable Court for an order either dismissing the indictment
Speaker 1: in this matter, or to treat it as a presentment
Speaker 1: and remand for a preliminary hearing before a magistrate. This
Speaker 1: motion is made on the grounds that the grand jury
Speaker 1: was misled as to the standard of proof required for
Speaker 1: an indictment. Issues number one. The Idaho Constitution Article one,
Speaker 1: Section eight and I see Section nineteen Dash eleven oh
Speaker 1: seven set the standard of proof for a grand jury
Speaker 1: at beyond a reasonable doubt based on the plain language
Speaker 1: of the statute. A. The legislative history of I dot
Speaker 1: c nineteen Dash eleven O seven also supports a beyond
Speaker 1: a reasonable doubt standard. B. The Idaho Supreme Court cannot
Speaker 1: adjust the standard of proof as it is substantive. Right two.
Speaker 1: The failure to properly instruct a grand jury as to
Speaker 1: the standard of proof is grounds for a dismissal of
Speaker 1: the indictment. A. The grand jury was erroneously instructed with
Speaker 1: the standard required for a presentment. Thus this court could
Speaker 1: treat the indictment as a presentment. The argument one. The
Speaker 1: Idaho Constitution Article one, Section eight and I dot C
Speaker 1: Section nineteen Dash eleven oh seven set the standard of
Speaker 1: proof for a grand jury at beyond a reasonable doubt.
Speaker 1: Pursuant to I dot se Section nineteen Dash eleven oh seven,
Speaker 1: the grand jury ought to find an indictment when all
Speaker 1: the evidence before them taken together. If unexplained or uncontradicted
Speaker 1: would in their judgment, weren't a conviction by a trial jury.
Speaker 1: The statute was in existence at the time the Idaho
Speaker 1: cons Institution was adopted Idaho Revised Statute Section seventy six
Speaker 1: thirty six, eighteen eighty seven, previously Criminal Practice Section two
Speaker 1: eight eighteen sixty four. When construing the Idaho Constitution, the
Speaker 1: primary object is to determine the intent of the framers
Speaker 1: State vers Clark, one sixty five, Idaho, three ninety three,
Speaker 1: three ninety seven, twenty nineteen. Provisions of the Idaho Constitution
Speaker 1: must be construed in light of the law prior to
Speaker 1: their adoption. State versus Green, one fifty eight Idaho eight
Speaker 1: eighty four, eight eighty seven, twenty fifteen. Even Idaho's Constitution
Speaker 1: reflects this view. Idaho Constitution, Article twenty one, Section two.
Speaker 1: All laws now in force in the territory of Idaho
Speaker 1: which are not repugnant to this Constitution shall remain in force.
Speaker 1: In Clark, our Supreme Court found the state sta in
Speaker 1: force at the time our Constitution was ratified to be
Speaker 1: controlling in its interpretation of Article one, Section seventeen. Clark
Speaker 1: one sixty five Idaho three ninety three. In State versus Matthews,
Speaker 1: one twenty nine, Idaho eight sixty five, nineteen ninety seven,
Speaker 1: the Court considered the issue of whether search warrants needed
Speaker 1: to be signed in order to be valid. The Court
Speaker 1: found that warrants do need to be signed, or else
Speaker 1: the search pursuant to such a warrant will violate Article one,
Speaker 1: Section seventeen of the Constitution. The court arrived at this
Speaker 1: conclusion despite the fact that Article one seventeen is completely
Speaker 1: silent regarding whether a warrant needs a signature. The reason
Speaker 1: the Court was able to find the constitutional violation in
Speaker 1: this case was by acknowledging that the statutes which require
Speaker 1: a signature I dot c. Section nineteen forty four oh one,
Speaker 1: forty four her sive six, and forty four oh seven
Speaker 1: pre date the Constitution of the State of Idaho Idaho
Speaker 1: at eight sixty nine. Because these statutes which require a
Speaker 1: signature on warrants predated the Idaho Constitution, they create a
Speaker 1: substantive right which existed prior to the adoption of this
Speaker 1: state's constitution. In State verse Rasch, nineteen ninety nine, Idaho
Speaker 1: five eighty six, nineteen seventy eight, the Supreme Court found
Speaker 1: a defendant was entitled to constitutional relief for a violation
Speaker 1: of I dot C. Section nineteen six eleven Knock and announce,
Speaker 1: after finding the rights contained in the statute were long
Speaker 1: standing at common law and deeply rooted in our heritage
Speaker 1: Rausch at five ninety three. The Rausch Court was able
Speaker 1: to trace this deeply rooted heritage all the way back
Speaker 1: to sixteen oh three. Thus, whatever this language means, it
Speaker 1: must color this Court's interpretation of Article I, Section eight.
Speaker 1: That section states, no person shall be held to answer
Speaker 1: for any felony or criminal offense of any grade, unless
Speaker 1: on presentment or indictment of a grand jury, or on
Speaker 1: information of the public prosecutor after a commitment by a magistrate,
Speaker 1: except in cases of impeachment, in cases cognizable by probate
Speaker 1: courts or by justices of the peace, and in cases
Speaker 1: arising in the militia, when in actual service, in time
Speaker 1: of war or a public danger, provided that a grand
Speaker 1: jury may be summoned upon the order of the district
Speaker 1: Court in the manner provided by law, and provided further
Speaker 1: that after a charge has been ignored by a grand jury,
Speaker 1: no person shall be held to answer or for trial
Speaker 1: therefore upon information of public prosecutor, if it were not
Speaker 1: clear from the text of Article I, Section eight, and
Speaker 1: the framer's general intent behind the section was to ensure
Speaker 1: that either a grand jury or a magistrate stood between
Speaker 1: the prosecutor and the accused. See Proceedings and Deaths of
Speaker 1: the Constitutional Convention of Idaho eighteen eighty nine, Volume one,
Speaker 1: two sixty Dash seventy nine I. W. Hart Educational, nineteen twelve.
Speaker 1: Here andafter preceding and debates. Thus, it stands to reason
Speaker 1: that the standard of proof and effect at the time
Speaker 1: of the adoption of the section was incorporated into it.
Speaker 1: It would be rather ineffective to create a buffer between
Speaker 1: the government and citizens that the government could change willy nilly. However,
Speaker 1: that does not provide much information as to what standard
Speaker 1: would warrant a conviction by a trial jury actually means.
Speaker 1: The interpretation of a statute must begin with the literal
Speaker 1: words of the statute. Those words must be given their plane, usual,
Speaker 1: u and ordinary meaning, and the statute must be construed
Speaker 1: as a whole. If the statute is not ambiguous, this
Speaker 1: court does not construe it, but simply follows the law
Speaker 1: as written. State versus Schwartz one thirty nine Idaho three
Speaker 1: sixty three, sixty two seventy nine, page three D seven,
Speaker 1: nineteen seven, twenty one, two thousand and three citations omitted.
Speaker 1: We have consistently held that where statutory language is unambiguous,
Speaker 1: legislative history and other extrinsic evidence should not be consulted
Speaker 1: for the purpose of altering the clearly expressed intent of
Speaker 1: the legislature. City of Sun Valley versus Sun Valley one
Speaker 1: twenty three, Idaho six sixty five, six sixty seven, eight
Speaker 1: fifty one, page two D nine sixty one nine sixty three,
Speaker 1: nineteen ninety three. Verska versus Saint Alphonsis Regional Medical Center
Speaker 1: one one fifty one, Idaho eight eighty nine, eight ninety three,
Speaker 1: twenty eleven. The plain text of the Idaho Code nineteen
Speaker 1: Dash eleven oh seven sets a standard of proof that
Speaker 1: would warrant a conviction at trial. The justification for a
Speaker 1: conviction at trial is and was, proof beyond a reasonable
Speaker 1: doubt I dot ce Section nineteen Dash twenty one oh four,
Speaker 1: twenty twenty two Idaho Revised Statute Section seven eight five
Speaker 1: eight eighteen eighty seven. If that were not enough, i
Speaker 1: dot Se Section nineteen Dash eleven oh seven is one
Speaker 1: of many laws that were adopted in eighteen sixty three
Speaker 1: and eighteen sixty four, copied verbatim from laws adopted in
Speaker 1: eighteen fifty one in the state of California. See State
Speaker 1: versus Edmondson one thirteen, Idaho two thirty two forty four
Speaker 1: two fifty nine, nineteen eighty seven Bistline j Dissenting, the
Speaker 1: Idaho Supreme Court has held. This Court has consistently held
Speaker 1: that a statute which is adopted from another jurisdiction will
Speaker 1: be presumed to be adopted with a prior construction placed
Speaker 1: upon it by the courts of such other jurisdictions. Odinwalt
Speaker 1: versus Zering one oh two, Idaho one five, nineteen eighty one,
Speaker 1: citing Nixon versus Triber one hundred, Idaho one ninety eight
Speaker 1: two hundred, nineteen seventy nine. State versus Miles ninety seven,
Speaker 1: Idaho three ninety six, nineteen seventy six, Dogget versus Electronics
Speaker 1: Corporation of America ninety three, Idaho twenty six, nineteen sixty nine.
Speaker 1: In People versus Tinder and Smith nineteen, California five thirty
Speaker 1: nine five forty one eighteen sixty two, the defendants were
Speaker 1: indicted for murder and arrested. They applied for bell, but
Speaker 1: they were denied. On A. Hay Babea's petition challenging the
Speaker 1: denial of bell, the California Court took time to discuss
Speaker 1: the legal standard required for the finding of an indictment
Speaker 1: Idaho at five pin forty three. The court found formally,
Speaker 1: an indictment was regarded as a mere accusation, which the
Speaker 1: grand jury ought to find if probable cause evidence were
Speaker 1: adduced in its support. But great authorities, says Chitty, have
Speaker 1: taken a more merciful view of the subject, and, considering
Speaker 1: the dangers of perjury, the anxiety of delay, and the
Speaker 1: misery of a prison, have argued that the grand inquest
Speaker 1: ought as far as the evidence before them goes, to
Speaker 1: be convinced of the guilt of the defendant. What was
Speaker 1: therefore anciently said, respecting petit treason may be applied to
Speaker 1: all other offenses, that since it is preferred in the
Speaker 1: absence of the prisoner, it ought to be supported by
Speaker 1: substantial testimonies one Criminal Law three eighteen eighteen twenty six.
Speaker 1: The more merciful view of the subject thus referred to
Speaker 1: is secured by statute. In this state. The Criminal Practice
Speaker 1: Act declares that the grand jury shall receive none but
Speaker 1: legal evidence and the best evidence, in degree to the
Speaker 1: exclusion of hearsay or secondary evidence Section two ten. And
Speaker 1: though not bound to hear evidence for the defendant, that is,
Speaker 1: that is their duty to weigh all the evidence submitted
Speaker 1: to them, and when they have reason to believe that
Speaker 1: other evidence within their reach will explain away the charge,
Speaker 1: they should order such evidence to be produced Section two eleven.
Speaker 1: And that they ought to find an indictment when all
Speaker 1: the evidence before them, taken together, is such as in
Speaker 1: their judgment, would if unexplained or uncontradicted, warrant a conviction
Speaker 1: by the trial jury section two twelve, And of course
Speaker 1: ought not to find an indictment when the evidence taken
Speaker 1: to again other if unexplained or uncontradicted, would not warrant
Speaker 1: such conviction. The indictment is then something more than a
Speaker 1: mere accusation based upon probable cause. It is an accusation
Speaker 1: based upon legal testimony of a direct and positive character,
Speaker 1: and is the concurring judgment of at least twelve of
Speaker 1: the grand jurors selected to inquire into all public offenses
Speaker 1: committed or trialable within their county, that upon the evidence
Speaker 1: presented to them, the defendant is guilty. Thus, the only
Speaker 1: case on point from the time this statute was adopted
Speaker 1: clearly states that the standard for finding an indictment is
Speaker 1: higher than the probable cause standard. In addition, other jurisdictions
Speaker 1: and legal treatises have recognized that the plain language amounts
Speaker 1: to more than probable cause. See Bash Halsey, Stuart Shields, Incorporated.
Speaker 1: First Tracy Collins, Bank and Trust Company, five point fifty
Speaker 1: eight F. Superior ten forty two, District of Utah, nineteen
Speaker 1: eighty three. State versus Lawler two twenty one, Wisconsin four
Speaker 1: to twenty three two sixty seven N dot W sixty seven, Wisconsin,
Speaker 1: nineteen thirty six. Y Kamisar w Lefayvre versus j. Israel
Speaker 1: Modern Criminal Procedure ten twenty five, N. Ten twenty six,
Speaker 1: end dot nine, fifth Edition, nineteen eighty The defense does not,
Speaker 1: by all this intend to bury the lead, but merely
Speaker 1: show that under the usual approach to statutory interpretation, there
Speaker 1: is no reasonable doubt as to what a grand jury
Speaker 1: should be instructed that said, the defense recognizes that the
Speaker 1: whole of modern jurisprudence on the issue is against it,
Speaker 1: as well as at least one founding father of this state. A.
Speaker 1: The legislative history of I dot Ce Section nineteen Dash
Speaker 1: eleven seven also supports a beyond a reasonable doubt standard.
Speaker 1: The history of this formulation shows that the abandonment of
Speaker 1: this standard and the retreat to common law probable cause
Speaker 1: has no basis in law to begin. The formulation first
Speaker 1: appears in the eighteen fifties in the Code of Criminal
Speaker 1: Procedure of the State of New York. This is best
Speaker 1: known as the New York Field Code and Criminal Procedure
Speaker 1: hereinafter Field and Code. The Idaho Supreme Court and the
Speaker 1: United States Supreme Court have acknowledged this state has retained
Speaker 1: language from the Field Code in its procedural statutes. See
Speaker 1: Gannett Company Incorporated. Versus Depascual four forty three US three
Speaker 1: sixty eight three ninety en Dot twenty three, nineteen seventy
Speaker 1: nine Col's Publication Company versus Magistrate Court of the First
Speaker 1: District of the State County of Cootney one eighteen IDAHOS
Speaker 1: seven fifty three seven fifty seven nineteen ninety. To understand
Speaker 1: why the Fueld Code broke with the common law, it
Speaker 1: helps to have some knowledge of the history of grand
Speaker 1: juries and the considerable concern about them occurring in the
Speaker 1: later half of the nineteenth century In England. The original
Speaker 1: criminal proceedings Circon nine seventy eight began with a group
Speaker 1: of twelve that went on to evolve into the grand
Speaker 1: Jury George Edwards. The grand Jury considered from a historical,
Speaker 1: political and legal standpoint, and the law and practice related
Speaker 1: Thereto two through six nineteen oh six, hereinafter grand jury.
Speaker 1: The alternative arrived with the Norman Conquest, in which the
Speaker 1: accuser could raise the hue and cry, and, if successful,
Speaker 1: force the accused to choose between a guilty plea or
Speaker 1: trial by combat Idaho at six, twelve thirteen. The Assize
Speaker 1: of Clarendon established for the first time in English history
Speaker 1: the ability to break the law and be prosecuted by
Speaker 1: the government. In eleven sixty six Idaho at seven. Even then,
Speaker 1: for a prosecution raised in court, the twelve had to
Speaker 1: agree they suspected the accused. The grand jury as a
Speaker 1: shield against a government run a muck first came about
Speaker 1: in sixteen eighty one in the cases of Stephen College
Speaker 1: and the Earl of Shaftesbury for high treason Brent Tomer
Speaker 1: ring around the grand jury informing jurors of the capital
Speaker 1: consequences of aggravating factors seventeen Definition j sixty one, sixty five,
Speaker 1: two thousand and four. See also John Langbeen The Origins
Speaker 1: of Adversary Criminal Trial forty five, two thousand and three.
Speaker 1: For the years sixteen sixty through the year of eighteen hundred,
Speaker 1: Betty found that the Surrey Grand Juries dismissed eleven and
Speaker 1: a half percent of the bills of indictments for property
Speaker 1: offenses punishable by death, and seven teen point three percent
Speaker 1: of those brought for non capital property offenses, fourteen point
Speaker 1: nine percent for murder, twenty seven point four percent for infanticide,
Speaker 1: twenty five point eight percent for wounding, forty four point
Speaker 1: four percent for rape. At the time of this country's founding,
Speaker 1: colonialists had knowledge of this history and experience with the
Speaker 1: power of grand juries to prevent government abuses, as well
Speaker 1: as experience with what is known as a preliminary hearing.
Speaker 1: More importantly, the colonies had experience with something that never
Speaker 1: took hold in England local public prosecutors see Joan E.
Speaker 1: Jacobi the American prosecutor in historical context the prosecutor in
Speaker 1: nineteen ninety seven. While the development of the magistrate's power
Speaker 1: to dismiss felonies after a prelim hearing in England is
Speaker 1: mostly lost in America, a number of historical writings shed
Speaker 1: light on what was known to those that adopted the constitution.
Speaker 1: There are, however, a few known exceptions to English procedure.
Speaker 1: In Massachusetts, the examination procedures seem to have permitted witnesses
Speaker 1: to be questioned in the presence of the accused. The
Speaker 1: early New Haven colony departed further from the English model
Speaker 1: than most colonies. Here, the justice, or more often the justices,
Speaker 1: were formally permitted to dismiss charges when they became convinced
Speaker 1: of the accused innocence. In Virginia County courts initially appear
Speaker 1: to have examined arrested suspects to determine whether the accused
Speaker 1: should be tried before the general court. In seventeen o five,
Speaker 1: a new institution, the Examining Court, was introduced. After a
Speaker 1: preliminary hearing before a Justice of the peace, the case
Speaker 1: was sent to a special examining court, where the accused
Speaker 1: was again questioned by several justices of the peace. Here
Speaker 1: the accused was entitled to require the sharp to summon
Speaker 1: witnesses on his behalf. Either the accused was released or
Speaker 1: the case went to the grand jury and eventually to
Speaker 1: a trial jury. Stake's handbook indicated that this new institution
Speaker 1: enlarged the means of coming at the truth of a
Speaker 1: supposed fact and gave the accused a third opportunity of acquittal.
Speaker 1: Such protections, designed for the liberty and quiet of the subject,
Speaker 1: were not to be boasted in any other part of
Speaker 1: the British dominion. All right, folks, we're going to wrap
Speaker 1: up part one here considering how much further we still
Speaker 1: have to go. We're on page eight right now, and
Speaker 1: there are twenty three pages. So we'll pick back up
Speaker 1: in the next episode where we left off. All of
Speaker 1: the information that goes with this episode can be found
Speaker 1: in the description box. What's up, everyone, and welcome back
Speaker 1: to the program. In this episode, we're gonna pick right
Speaker 1: back up with the motion to dismiss the indictment paperwork
Speaker 1: that was filed by Brian Coohberger's team Part two. The
Speaker 1: failure to properly instruct a grand jury as to the
Speaker 1: standard of proof is grounds for dismissal of the indictment.
Speaker 1: Having shown that the jury was provided with a wrong
Speaker 1: standard of proof, the next question is what is the remedy.
Speaker 1: The Field Code adopted a somewhat complex interplay of statutes
Speaker 1: permitting a defendant to challenge an indictment that Idaho maintains.
Speaker 1: For the most part, Idaho Code nineteen sixteen oh one
Speaker 1: provides grounds for setting aside indictment. The indictment must be
Speaker 1: set aside by the court in which the defendant is
Speaker 1: arraigned upon his motion in either of the following cases.
Speaker 1: One when it is not found, endorsed and presented as
Speaker 1: prescribed in this code. Two when the names of the
Speaker 1: witnesses examined before the grand jury or whose depositions may
Speaker 1: have been read before them, are not in at the
Speaker 1: foot of the indictment or endorsed thereon. Three when a
Speaker 1: person is permitted to present during the session of the
Speaker 1: grand jury, and when the charge embraced in the indictment
Speaker 1: is under consideration, except as provided in Chapter eleven of
Speaker 1: this title. Number four, when the defendant has not been
Speaker 1: held to answer before the finding of the indictment on
Speaker 1: any ground which would have been good ground for challenge,
Speaker 1: either to the panel or to any individual grandeur. Idaho
Speaker 1: Code Section nineteen twenty four oh eight provides impertinent part.
Speaker 1: A motion in arrest of judgment is an application on
Speaker 1: the part of the defendant that no judgment be rendered
Speaker 1: on a plea or a verdict of guilty, or on
Speaker 1: a verdict against the defendant on a plea of a
Speaker 1: former conviction or acquittal. It may be founded on any
Speaker 1: of the defects in the indictment that are grounds for demure,
Speaker 1: unless the objection to the indictment has been waived by
Speaker 1: a failure to demur, and must be made before or
Speaker 1: at the time the defendant is called for judgment. Neither
Speaker 1: of these statutes was intended to create a mechanism for
Speaker 1: challenging the instructions given to the jury. The Court of
Speaker 1: Appeals of New York found as much, but concluded that
Speaker 1: defendants could still move to quash a warrant where the
Speaker 1: proceedings intrude on their constitutional rights. See People Versus Glenn
Speaker 1: sixty six, any one, twelve one, fourteen, and fifteen New York,
Speaker 1: nineteen oh three. The court then found that a showing
Speaker 1: that an instruction was prejudicial may require an indictment to
Speaker 1: be quashed. Idaho Supreme Court had adopted this holding see Gasper,
Speaker 1: seventy four, Idaho. At three ninety six. So what prejudice
Speaker 1: results from telling a jury the wrong standard? Typically, courts
Speaker 1: give the jury a standard, and it is expected to
Speaker 1: follow it, even where attorneys may misstate that standard in
Speaker 1: their arguments. See Glenn sixty six and dot E at
Speaker 1: one fifteen, finding no prejudice from defective instruction in part
Speaker 1: because jury previously told proper standard. Unfortunately, that did not
Speaker 1: happen here. When a jury has been misled as to
Speaker 1: the standard to the defendant's detriment, courts find fundamental error
Speaker 1: because the error goes to the foundation of the case
Speaker 1: and takes away an essential right. See State versus Ericson
Speaker 1: one forty eight Idaho, six seventy nine, six eighty five
Speaker 1: Appeals Court twenty ten, citing State versus Rattlebaugh one twenty four, Idaho.
Speaker 1: Seven fifty eight seven sixty nine, nineteen ninety three. Because
Speaker 1: the grand jury in this matter was only informed of
Speaker 1: the improper standard, it was a fundamental error necessarily depriving
Speaker 1: mister Coleberger of an essential right. Fundamental error necessitates reversal or,
Speaker 1: in this case, dismissal of the indictment. Sullivan versus Louisiana,
Speaker 1: five oh eight US two seventy five two eighty nineteen
Speaker 1: ninety three, Part A. The grand jury was erroneously instructed
Speaker 1: with the standard required for a presentment. Thus this court
Speaker 1: could treat the indictment as a presentment. There is one
Speaker 1: final wrinkle in this error that is worth considering. As
Speaker 1: mentioned above, there is an Idaho a thing called a presentment.
Speaker 1: It does not appear from the authorities in Idaho that
Speaker 1: this thing is well understood. However, in the words of
Speaker 1: one justice, it is the only sort of accusation any
Speaker 1: grand jury in Idaho has ever produced. Edmondson one thirteen
Speaker 1: Idaho at two forty two Bistline Jade, dissenting for the
Speaker 1: information of the Court and the bar. A presentment is
Speaker 1: what are united, says State Supreme Court would call a
Speaker 1: term of art Us versus Hanson, Supreme Court, twenty twenty three,
Speaker 1: w L. Forty one thirty eight nine to ninety four
Speaker 1: at five end date twenty twenty three. Thus although it
Speaker 1: never receives definition in the Code, it has a definition
Speaker 1: that comes to us from the Field Code. The Field
Speaker 1: Commission explains the Commissioners have proposed two modes of proceeding
Speaker 1: upon the action of the grand jury. First that, where
Speaker 1: the defendant has been held to answer the charge and
Speaker 1: in no other case, the grand jury may, if they
Speaker 1: believe him guilty, find an indictment against them. Second that, if,
Speaker 1: upon investigation of a charge against him, whether originated by
Speaker 1: themselves or presented by another, they believe his is guilty
Speaker 1: of a public offense, they must proceed by presentment. The
Speaker 1: presentment is an informal statement by the grand jury representing
Speaker 1: that a public offense has been committed which is triable
Speaker 1: within the county, and that there is reasonable ground for
Speaker 1: believing the defendant has committed it Section two fifty six
Speaker 1: and to fifty seven. Upon the former, he is of
Speaker 1: course to be held for trial, but upon the latter
Speaker 1: he is only to be held for examination before a magistrate,
Speaker 1: in the same manner as if and information had been
Speaker 1: given to the magistrate in the first instance, and with
Speaker 1: the same opportunity for explanation or defense. These provisions, though
Speaker 1: new in practice, are in principle no innovations. In the
Speaker 1: Criminal Code recently adopted in Virginia, similar provision is contained
Speaker 1: Laws of Virginia eighteen forty eight, Page one forty five,
Speaker 1: Section sixteen, and it may be safely asserted that the
Speaker 1: principle contained in them is in consonance with the common
Speaker 1: law itself. In a late case in Pennsylvania, the office
Speaker 1: of a grand jury was stated by Judge King to
Speaker 1: be confined to the examination of such cases as were
Speaker 1: presented by the Attorney General after previous binding over by
Speaker 1: a committing magistrate. This doctrine was held in a case
Speaker 1: where a communication had been received from the grand jury
Speaker 1: stating that charges had been made by one of their
Speaker 1: number to the effect that one or more members of
Speaker 1: a public trust had been guilty of converting to their
Speaker 1: own use public money, and asking that witnesses should be
Speaker 1: furnished to them to enable them to examine the charge.
Speaker 1: The spirit of the rule is embodied and carried out
Speaker 1: in the provisions proposed by the commissioners continuing in the
Speaker 1: grand jury all their powers in respect to the investigation
Speaker 1: of charges of crime. It is proposed to guard against
Speaker 1: hasty and ill advised accusations by giving to the defendant
Speaker 1: upon presentment by the grand jury, where he has not
Speaker 1: been already held to answer the same opportunity of answering
Speaker 1: or explaining the charge as if he had been preceded
Speaker 1: against by an information before a magistrate, while on the
Speaker 1: other hand, he is to be committed or belled upon
Speaker 1: the presentment in precisely the same manner as upon an indictment.
Speaker 1: In this manner, the rights of the defendant are protected
Speaker 1: and the demands of public justice are abundantly answered. Fuel
Speaker 1: Code at one nineteen and one twenty. Note the presentment
Speaker 1: originates within the grand jury, requires a lower standard of
Speaker 1: proof and requires a preliminary hearing because of it. Part one.
Speaker 1: A presentment permits the defendant to request a prelim hearing.
Speaker 1: Pursuant to I dot Se nineteen twelve oh seven, a
Speaker 1: magistrate is to proceed on a presentment as if it
Speaker 1: were an information. At first glance, this likely appears to
Speaker 1: undo much of what has come before four. After all,
Speaker 1: if a presentment is an information, then it already has
Speaker 1: had a preliminary hearing. However, history being what it is,
Speaker 1: things are not so simple. In eighteen eighty seven, when
Speaker 1: the revived statutes were adopted, an information was the same
Speaker 1: as a complaint. C Revived Statute RS Section seventy three,
Speaker 1: eighty seventy three, eighty one, seventy five, Zho nine Dash
Speaker 1: thirty two, eighteen eighty seven. See also State versus Stafford
Speaker 1: twenty six, Idaho three eighty one one forty three, page five,
Speaker 1: twenty eight, five thirty, nineteen fourteen. An information or a
Speaker 1: complaint is a paper charging a defendant with a particular offense,
Speaker 1: and it matters not whether it is called an information
Speaker 1: or a complaint. Once arrested on an information, a defendant
Speaker 1: has a preliminary hearing, referred to at the time as
Speaker 1: an examination. C Revived Statute RS Section seventy five, twenty five,
Speaker 1: seventy five, seventy. It was not until the code was revised,
Speaker 1: certainly not for the first time in nineteen sixty nine,
Speaker 1: that the terms became truly separate see SL nineteen sixty nine,
Speaker 1: Chapter seventy nine, Section one. Additionally, even in eighteen eighty seven,
Speaker 1: the word complaint was solely used in the code when
Speaker 1: discussing misdemeanors. While an information or complaint referred to a
Speaker 1: felony at least in magistrate court. Compare a revised Statute
Speaker 1: Section seventy five thirty one with Revised Statute Section eighty
Speaker 1: two eighty eighteen eighty seven. Thus, the question becomes, did
Speaker 1: the legislature change Chapter five and leave Chapter twelve alone
Speaker 1: to purposely turn a presentment into an indictment? The answer
Speaker 1: is clearly nu. Although the purpose of the individual Bill
Speaker 1: seems lost to posterity, the nineteen sixty six Court Modernization
Speaker 1: Plan and the nineteen sixty nine court reforms are still extant.
Speaker 1: In nineteen sixty six, the legislature wanted a modern court system.
Speaker 1: Part of that plan was to do away with justices
Speaker 1: of the peace, police courts and probate courts and have
Speaker 1: a two tier trial court system. According to the Committee
Speaker 1: on Court Study, the intention was district courts and magistrates.
Speaker 1: The third major area of concern of the Committee on
Speaker 1: the Courts and the Advisory Committee was to provide for
Speaker 1: a two level system of courts in Idaho. This is
Speaker 1: the heart of the preliminary report. It encompasses proposals that
Speaker 1: some may consider a radical break with tradition. However, the
Speaker 1: Committee on Courts and the Advisory Committee feel that this
Speaker 1: is a logical step that must be taken to put
Speaker 1: into effect the clearly expressed wishes of Idaho voters when
Speaker 1: they adopted a constitutional amendment in nineteen sixty two to
Speaker 1: provide for a unified and integrated judicial system. The proposals
Speaker 1: contained in this section of the preliminary Report have been
Speaker 1: prepared in separate sections for easier study. This section includes
Speaker 1: proposals to abolish the present probate justice of the peace
Speaker 1: and police courts, to create a system of district court
Speaker 1: magistrates appointed by district judges, to define more clearly the
Speaker 1: duties and authority in administrative matters of the senior district judge,
Speaker 1: to re enact provisions for a small claims department of
Speaker 1: the magistrate's division, and to change the method of paying
Speaker 1: for the costs of jury trials in the district court
Speaker 1: from the county to the state. That plan never mentions
Speaker 1: the intention to make it clear that complaints and informations
Speaker 1: are separate, but it does mention that the Colorado system
Speaker 1: does at seven. In nineteen sixty nine, much of the
Speaker 1: court reform recommended was made into law generally Idaho's Session
Speaker 1: Laws nineteen sixty nine at fourteen fifty nine and sixty.
Speaker 1: Although the purpose of Bill seventy nine is not in
Speaker 1: the Session Laws, its title in the index is Complaint Definition, Contents,
Speaker 1: transmission delivery, as well as complaint Examination of Person lodging
Speaker 1: Idaho Code at fourteen sixty one. Additionally, the legislature amended
Speaker 1: much of Chapter eight via s dot l nineteen sixty nine,
Speaker 1: Chapter four sixty seven to create the modern preliminary hearing
Speaker 1: replete with new references to the complaint. No laws were
Speaker 1: passed affecting functioning of the grand jury since nineteen sixty nine.
Speaker 1: The legislature made various adjustments to criminal procedure. However, not
Speaker 1: one law pertaining to a presentment has been passed since
Speaker 1: nineteen nineteen see Idaho nineteen nineteen, Section eighty eight oh two,
Speaker 1: Dash zero eight. For these reasons, it is clear that
Speaker 1: I dot se Section nineteen twelve oh seven still intends
Speaker 1: for a presentment to be treated as we would now
Speaker 1: treat a complaint containing a felony. Thus, if this court
Speaker 1: sees fit, it could simply remand the matter to a
Speaker 1: magistrate for the necessary prelim hearing, rather than going through
Speaker 1: a dismissal and having to determine whether the matter may
Speaker 1: be resubmitted to the grand jury conclusion. Over one hundred
Speaker 1: and fifty years ago, Idaho joined the state of California
Speaker 1: and adopting the Field Code, thereby adopting reforms to the
Speaker 1: grand jury system intended to restore to that system its
Speaker 1: function as a bulwark for freedom. The strange history that
Speaker 1: follows in this state, just as every other state with
Speaker 1: the same statutory scheme, is both tragic and unconstitutional. No
Speaker 1: court had the power to decide that legislature had made
Speaker 1: it too hard for grand juries to do their work
Speaker 1: and change the sufficiency of evidence required to indict. Mister
Speaker 1: Koberger is asking this court to recognize the law long
Speaker 1: string of error that led us here and give back
Speaker 1: the people of this state the protections they are owed.
Speaker 1: The indictment in the matter should be dismissed or remanded
Speaker 1: for a prelim hearing. Dated this twenty fourth day of
Speaker 1: July twenty twenty three and signed by Jay Weston Logsden.
Speaker 1: All right, folks, That concludes our look at Brian Kohberger's
Speaker 1: motion to dismiss the grand jury indictment. All of the
Speaker 1: information that goes along with it can be found in
Speaker 1: the description box. What's up everyone, and welcome back to
Speaker 1: the program. In this episode, we're going to pick right
Speaker 1: back up with the motion to dismiss the indictment paperwork
Speaker 1: that was filed by Brian Colberger's team, Part two. The
Speaker 1: failure to properly instruct a grand jury as to the
Speaker 1: standard of proof is grounds for dismissal of the indictment.
Speaker 1: Having shown that the jury was provided with a wrong
Speaker 1: standard of proof, the next question is what is the remedy.
Speaker 1: The Field Code adopted a somewhat complex interplay of statutes
Speaker 1: permitting a defendant to challenge an indictment that Idaho maintains.
Speaker 1: For the most part, Idaho Code nineteen sixteen oh one
Speaker 1: provides grounds for setting aside indictment. The indictment must be
Speaker 1: set aside by the court in which the defendant is
Speaker 1: arraigned upon his motion in either of the following cases.
Speaker 1: One when it is not found, endorsed and presented as
Speaker 1: prescribed in this code. Two when the names of the
Speaker 1: witnesses examined before the grand jury or whose depositions may
Speaker 1: have been read before them, are not inserted at the
Speaker 1: foot of the indictment, or endorsed thereon three when a
Speaker 1: person is permitted to present during the session of the
Speaker 1: grand jury, and when the charge embraced in the indictment
Speaker 1: is under consideration, except as provided in Chapter eleven of
Speaker 1: the US Title number four, when the defendant has not
Speaker 1: been held to answer before the finding of the indictment
Speaker 1: on any ground which would have been good ground for challenge,
Speaker 1: either to the panel or to any individual grandeur. Idaho
Speaker 1: Code Section nineteen twenty four oh eight provides impertinent part.
Speaker 1: A motion in arrest of judgment is an application on
Speaker 1: the part of the defendant that no judgment be rendered
Speaker 1: on a plea or a verdict of guilty, or on
Speaker 1: a verdict against the defendant on a plea of a
Speaker 1: former conviction or acquittal. It may be founded on any
Speaker 1: of the defects in the indictment that are grounds for
Speaker 1: demur unless the objection to the indictment has been waived
Speaker 1: by a failure to demur, and must be made before
Speaker 1: or at the time the defendant is called for judgment.
Speaker 1: Neither of these statutes was intended to create a mechanism
Speaker 1: for challenging the instructions given to the jury. The Court
Speaker 1: of Appeals of New York found as much, but concluded
Speaker 1: that defendants could still move to quash a warrant where
Speaker 1: the proceedings intrude on their constitutional rights see People versus Glenn,
Speaker 1: sixty six, Any one twelve, one, fourteen and fifteen, New York,
Speaker 1: nineteen oh three. The court then found that a showing
Speaker 1: that an instruction was prejudicial may require an indictment to
Speaker 1: be quashed. Idaho Supreme Court had adopted this holding see Gaspers,
Speaker 1: seventy four, Idaho at three ninety six. So what prejudice
Speaker 1: results from telling a jury the wrong standard? Typically, courts
Speaker 1: give the jury a standard, and it is expected to
Speaker 1: follow it, even where attorneys may misstate that standard in
Speaker 1: their arguments. See Glenn, sixty six and Nott E at
Speaker 1: one fifteen, finding no prejudice from defective instruction in part
Speaker 1: because jury pre obviously told proper standard. Unfortunately, that did
Speaker 1: not happen here. When a jury has been misled as
Speaker 1: to the standard to the defendant's detriment, courts find fundamental
Speaker 1: error because the error goes to the foundation of the
Speaker 1: case and takes away an essential right see State versus
Speaker 1: Ericson one forty eight Idaho. Six seventy nine, six eighty
Speaker 1: five Appeals Court twenty ten, citing State versus Rattlebaugh one
Speaker 1: twenty four Idaho seven fifty eight seven sixty nine, nineteen
Speaker 1: ninety three. Because the grand jury in this matter was
Speaker 1: only informed of the improper standard, it was a fundamental error,
Speaker 1: necessarily depriving mister Colberger of an essential right. Fundamental error
Speaker 1: necessitates reversal or, in this case, dismissal of the indictment.
Speaker 1: Sullivan versus Louisiana, five oh eight US two seventy five,
Speaker 1: two eighty nineteen ninety three, Part A. The grand jury
Speaker 1: was aneously instructed with the standard required for a presentment.
Speaker 1: Thus this court could treat the indictment as a presentment.
Speaker 1: There is one final wrinkle in this error that is
Speaker 1: worth considering. As mentioned above, there is an Idaho a
Speaker 1: thing called a presentment. It does not appear from the
Speaker 1: authorities in Idaho that this thing is well understood. However,
Speaker 1: in the words of one justice, it is the only
Speaker 1: sort of accusation any grand jury in Idaho has ever produced.
Speaker 1: Edmondson one thirteen Idaho. At two forty two Bistline Jay
Speaker 1: dissenting for the information of the Court and the bar
Speaker 1: a presentment is what our United States Supreme Court would
Speaker 1: call a term of art Us versus Hanson, Supreme Court,
Speaker 1: twenty twenty three w L. Forty one thirty eight nine
Speaker 1: to ninety four at five end date, twenty twenty three. Thus,
Speaker 1: although it never receives definition in the Code Code, it
Speaker 1: has a definition that comes to us from the Field Code.
Speaker 1: The Field Commission explains the Commissioners have proposed two modes
Speaker 1: of proceeding upon the action of the grand jury. First that,
Speaker 1: where the defendant has been held to answer the charge
Speaker 1: and in no other case, the grand jury may, if
Speaker 1: they believe him guilty, find an indictment against them. Second that, if,
Speaker 1: upon investigation of a charge against him, whether originated by
Speaker 1: themselves or presented by another, they believe his is guilty
Speaker 1: of a public offense, they must proceed by presentment. The
Speaker 1: presentment is an informal statement by the grand jury representing
Speaker 1: that a public offense has been committed which is triable
Speaker 1: within the county, and that there is reasonable ground for
Speaker 1: believing the defendant has committed it Section two fifty six
Speaker 1: and to fifty seven. Upon the former, he is of
Speaker 1: course to be held for trial. But upon the latter,
Speaker 1: he is only to be held for examination before a
Speaker 1: magistrate in the same manner as if and information had
Speaker 1: been given to the magistrate in the first instance, and
Speaker 1: with the same opportunity for explanation or defense. These provisions,
Speaker 1: though new in practice, are in principle no innovations. In
Speaker 1: the Criminal Code recently adopted in Virginia, similar provision is
Speaker 1: contained Laws of Virginia eighteen forty eight, Page one forty five,
Speaker 1: Section sixteen, and it may be safely asserted that the
Speaker 1: principle contained in them is in consonance with the common
Speaker 1: law itself. In a late case in Pennsylvania, the office
Speaker 1: of a grand jury was stated by Judge King to
Speaker 1: be confined to the examination of such cases as were
Speaker 1: presented by the Attorney General after previous binding over by
Speaker 1: a committing magistrate. This doctrine was held in a case
Speaker 1: where a communication had been rest received from the grand
Speaker 1: jury stating that charges had been made by one of
Speaker 1: their number to the effect that one or more members
Speaker 1: of a public trust had been guilty of converting to
Speaker 1: their own use public money, and asking that witnesses should
Speaker 1: be furnished to them to enable them to examine the charge.
Speaker 1: The spirit of the rule is embodied and carried out
Speaker 1: in the provisions proposed by the Commissioners continuing in the
Speaker 1: Grand Jury all their powers in respect to the investigation
Speaker 1: of charges of crime. It is proposed to guard against
Speaker 1: hasty and ill advised accusations by giving to the defendant,
Speaker 1: upon presentment by the grand jury where he has not
Speaker 1: been already held to answer, the same opportunity of answering
Speaker 1: or explaining the charge as if he had been proceeded
Speaker 1: against by an information before a magistrate, while on the
Speaker 1: other hand, he is to be committed or balled upon
Speaker 1: the presentment in icily the same manner as upon an indictment.
Speaker 1: In this manner, the rights of the defendant are protected
Speaker 1: and the demands of public justice are abundantly answered. Fuel
Speaker 1: Code at one nineteen and one twenty. Note the presentment
Speaker 1: originates within the grand jury, requires a lower standard of
Speaker 1: proof and requires a preliminary hearing because of it Part one.
Speaker 1: A presentment permits the defendant to request a prelim hearing.
Speaker 1: Pursuant to I dot Se nineteen twelve oh seven, a
Speaker 1: magistrate is to proceed on a presentment as if it
Speaker 1: were an information at first glance, this likely appears to
Speaker 1: undo much of what has come before. After all, if
Speaker 1: a presentment is an information, then it already has had
Speaker 1: a preliminary hearing. However, history being what it is, things
Speaker 1: are not so simple. In eighteen eighty seven, when the
Speaker 1: revised Statutes were adopted, an information was the same as
Speaker 1: a complaint. C Revised Statute RS Section seventy three, eighty
Speaker 1: seventy three, eighty one, seventy five zero nine toash thirty two,
Speaker 1: eighteen eighty seven. See also State versus Stafford twenty six,
Speaker 1: Idaho three eighty one one forty three, page five, twenty eight,
Speaker 1: five thirty, nineteen fourteen. An information or a complaint is
Speaker 1: a paper charging a defendant with a particular offense, and
Speaker 1: it matters not whether it is called an information or
Speaker 1: a complaint. Once arrested on an information, a defendant has
Speaker 1: a preliminary hearing, referred to at the time as an examination.
Speaker 1: C Revised Statute RS Section seventy five, twenty five, seventy five, seventy.
Speaker 1: It was not until the code was revised, certainly not
Speaker 1: for the first time in nineteen sixty nine, that the
Speaker 1: terms became truly separate. C SL nineteen sixty nine, Chapter
Speaker 1: seventy nine, Section one. Additionally, even in eighteen eighty seven,
Speaker 1: the word complaint was solely used in the Code when
Speaker 1: discussing misdemeanors, while an information or complaint referred to a felony,
Speaker 1: at least in magistrate court. Compare a Revised Statute Section
Speaker 1: seventy five thirty one with Revised Statute Section eighty two
Speaker 1: eighty eighteen eighty seven. Thus the question becomes, did the
Speaker 1: legislature change Chapter five and leave Chapter twelve alone to
Speaker 1: purposely turn a presentment into an indictment? The answer is
Speaker 1: clearly nu. Although the purpose of the individual Bill seems
Speaker 1: lost to posterity, the nineteen sixty six Court Modernization Plan
Speaker 1: and the nineteen sixty nine court reforms are still extant.
Speaker 1: In nineteen sixty six, the legislature wanted a modern court system.
Speaker 1: Part of that plan was to do away with justices
Speaker 1: of the peace, police courts and probate courts and have
Speaker 1: a two tier trial court system. According to the Committee
Speaker 1: on Court Study, the intention was district courts and magistrates.
Speaker 1: The third major area of concern of the Committee on
Speaker 1: the Courts and the Advisory Committee was to provide for
Speaker 1: a two level system of courts in Idaho. This is
Speaker 1: the heart of the preliminary report. It encompasses proposals that
Speaker 1: some may consider a radical break with tradition. However, the
Speaker 1: Committee on Courts and the Advisory Committee feel that this
Speaker 1: is a logical step that must be taken to put
Speaker 1: into effect the clearly expressed wishes of Idaho voters when
Speaker 1: they adopted a constitutional amendment in nineteen sixty two to
Speaker 1: provide for a unified and integrated judicial system. The proposals
Speaker 1: contained in this section of the preliminary Report have been
Speaker 1: prepared in separate sections for easier study. This section includes
Speaker 1: proposals to abolish the present probate justice of the peace
Speaker 1: and police courts, to create a system of district court
Speaker 1: magistrates appointed by district judges, to define more clearly the
Speaker 1: duties and authority in administrative matters of the senior district judge,
Speaker 1: to re enact provisions for a small claims department of
Speaker 1: the Magistrates Division, and to change the method of paying
Speaker 1: for the costs of jury trials in the district court
Speaker 1: from the county to the state. That plan never mentions
Speaker 1: the intention to make it clear that complaints and informations
Speaker 1: are separate, but it does mention that the Colorado system
Speaker 1: does at seven. In nineteen sixty nine, much of the
Speaker 1: court reform recommended was made into law, generally Idaho's Session
Speaker 1: Laws nineteen sixty nine at fourteen fifty nine and sixty.
Speaker 1: Although the purpose of Bill seventy nine is not in
Speaker 1: the Session Laws, its title in the index is Complaint
Speaker 1: Definition Contents, Transmission delivery, as well as complaint Examination of
Speaker 1: Person Life Idaho Code at fourteen sixty one. Additionally, the
Speaker 1: legislature amended much of Chapter eight via s dot l
Speaker 1: nineteen sixty nine, Chapter four sixty seven to create the
Speaker 1: modern preliminary hearing replete with new references to the complaint.
Speaker 1: No laws were passed affecting functioning of the grand jury
Speaker 1: since nineteen sixty nine. The legislature made various adjustments to
Speaker 1: criminal procedure. However, not one law pertaining to a presentment
Speaker 1: has been passed since nineteen nineteen see Idaho nineteen nineteen,
Speaker 1: Section eighty eight oh two, dash zero eight. For these reasons,
Speaker 1: it is clear that I dot see Section nineteen twelve
Speaker 1: oh seven still intends for a presentment to be treated
Speaker 1: as we would now treat a complaint containing a felony. Thus,
Speaker 1: if this Court sees fit, it could simply remand the
Speaker 1: matter to a magistrate for the necessary prelim hearing, rather
Speaker 1: than going through a dismissal and having to determine what
Speaker 1: or the matter may be resubmitted to the grand jury conclusion.
Speaker 1: Over one hundred and fifty years ago, Idaho joined the
Speaker 1: state of California and adopting the Field Code, thereby adopting
Speaker 1: reforms to the grand jury system, intended to restore to
Speaker 1: that system its function as a bulwark for freedom. The
Speaker 1: strange history that follows in this state, just as every
Speaker 1: other state with the same statutory scheme, is both tragic
Speaker 1: and unconstitutional. No court had the power to decide that
Speaker 1: legislature had made it too hard for grand juries to
Speaker 1: do their work and change the sufficiency of evidence required
Speaker 1: to indict. Mister Colberger is asking this court to recognize
Speaker 1: the long string of error that led us here and
Speaker 1: give back the people of this state the protections they
Speaker 1: are owed. The indictment in the matter should be dismissed
Speaker 1: or remanded for a prelim hearing. Dated this twenty fourth
Speaker 1: day of July twenty twenty three and signed by jay
Speaker 1: Wa Weston Logsden. All Right, folks, that concludes our look
Speaker 1: at Brian Kohberger's motion to dismiss the grand jury indictment.
Speaker 1: All of the information that goes along with it can
Speaker 1: be found in the description box