Speaker 1: What's up everyone, and welcome back to the program. In
Speaker 1: this episode, we're headed right back up to Moscow, and
Speaker 1: this time we're going to take a look at the
Speaker 1: motion in Lemana number two Vague and undisclosed expert testimony.
Speaker 1: And this is the motion that was filed by Brian
Speaker 1: Colberger case number CR zero one DASH twenty four DASH
Speaker 1: thirty one six sixty five. Motion in Lemona number two,
Speaker 1: Vague and undisclosed expert testimony, State of Idaho Plaintiff vers
Speaker 1: Brian C. Coberger. The defendant comes now Brian C. Coburger
Speaker 1: buying through his attorneys of record, and hereby moves the
Speaker 1: Court for an order excluding vague and undisclosed expert testimony.
Speaker 1: Allowing vague and undisclosed expert testimony violates Brian's federal and
Speaker 1: state constitutional rights to do process, a fair trial, of
Speaker 1: effective assistance of counsel and confrontation of witnesses. This motion
Speaker 1: is based on the fifth, sixth and fourteen amendments to
Speaker 1: the United States Constitution, Article one, Section thirteen of the
Speaker 1: Idaho Constitution, Idaho Criminal Rule sixteen, and Idaho Rules of
Speaker 1: Evidence one O two one O four seven O two
Speaker 1: seven oh one and seven oh three. The due process
Speaker 1: clause requires that criminal prosecutors co import with prevailing notions
Speaker 1: of fundamental fairness California Versus Trombeta four sixty seven US
Speaker 1: four seventy nine, four eighty five, nineteen eighty four. The
Speaker 1: requested exclusions are made to secure a fairness in administration
Speaker 1: to the end the truth may be ascertained and proceedings
Speaker 1: justly determined see Ire one O two. These matters are
Speaker 1: ripe for consideration by the court pursue into Ire one
Speaker 1: O four based on the existence of issues that involve
Speaker 1: preliminary questions of admissibility, and because the determination of these
Speaker 1: issues now fundamentally impacts the defense ability to prepare a
Speaker 1: comprehensive defense and focus on evidence and experts that will
Speaker 1: actually be at issue in the limited timeframe prior to trial.
Speaker 1: Mister Coburger hereby incorporates all arguments and authorities contained in
Speaker 1: his motion to preclude the death penalty and adopt other
Speaker 1: necessary procedures. Due to the state's numerous disclosure violations. One,
Speaker 1: Mister Coeberger requests exclusion and or limitation of the following
Speaker 1: expert testimony one S one Jenny Ayre's forensic scientist. Testimony
Speaker 1: must be limited to only her work depicted in Idaho
Speaker 1: State Police Forensic Laboratory Report twenty five and her checklist
Speaker 1: of testing in mister Colberger's apartment in office. She is
Speaker 1: not authored any laboratory reports expressing opinion. Any other testimony
Speaker 1: is outside of Idaho Criminal Rule sixteen Idaho Rules of Evidence,
Speaker 1: the Court's scheduling order, and violates mister Colberger's federal and
Speaker 1: state constitutional rights of affair, trial, confrontation, and due process s.
Speaker 1: Two FBI Special Agent Niickeol Balance testimony must be prohibited
Speaker 1: as no report containing findings or opinions has been produced.
Speaker 1: The only disclosures are two PowerPoint presentations. One is noted
Speaker 1: as a draft. The PowerPoint depicts information derived from cell
Speaker 1: tower data, call detail records, drive test data, and interpretation
Speaker 1: of the same. It's abundantly clear that in creating this PowerPoint,
Speaker 1: special Agent Balance used an unknown methodology to analyze and
Speaker 1: visualize certain data contained within the defendant's call detail records
Speaker 1: while omitting and or ignoring other relevant data. It's impossible
Speaker 1: to determine why certain data was included in the PowerPoint
Speaker 1: while no other data was omitted ignored, As Special Agent
Speaker 1: Balance as produced no report documenting his actual analysis the
Speaker 1: omitted ignored data referenced above his exculpatory evidence. In mister
Speaker 1: Kolberger's defense, the call detail records in full provide partial
Speaker 1: alhibiic corroboration. As such, the complete lack of disclosure as
Speaker 1: to any opinion and or report addressing this issue from
Speaker 1: Agent Balance makes it impossible to anticipate what he may
Speaker 1: testify to as an expert on this matter. In its
Speaker 1: expert rebuttal disclosures, the State provided a summary of Special
Speaker 1: Agent Balance proposed testimony. Portions of the summary are in
Speaker 1: direct conflict with his previous PowerPoint disclosures, further complicating mister
Speaker 1: Colberger's guesses at what his testimony may be. Mister Colberger's
Speaker 1: expert SIRAE, has conducted a detailed analysis of Special Agent
Speaker 1: Balance PowerPoint and found severely flawed findings that are well
Speaker 1: outside of established and known practices in the field. The
Speaker 1: PowerPoint is vague and makes it impossible to determine what
Speaker 1: Special Agent Balance is claiming. Thus, the additional summary does
Speaker 1: not remedy the lack of disclosure, leaving mister Colberger an
Speaker 1: inability to repair and meet the constitutional protection of confrontation.
Speaker 1: Testimony must be prohibited pursuant Idaho Criminal Rule sixteen, Idaho
Speaker 1: Rules of Evidence, the court scheduling order, and mister Colberger's
Speaker 1: federal and state constitutional rights of a fair trial, confrontation,
Speaker 1: and due process as three and s four. Mister and
Speaker 1: Miss Barnhardt testimony must exclude everything other than specifically disclosed,
Speaker 1: including purported habit evidence the state is not produced or
Speaker 1: report specifying what habits are referred to. No expert opinion
Speaker 1: has been disclosed. Mister Colburger cannot prepare to confront purported
Speaker 1: evidence against them that is undisclosed. Testimony must be prohibited
Speaker 1: pursuant Idaho Criminal Rule sixteen, Idaho Rules of Evidence, the
Speaker 1: Court scheduling Order, and mister Colburger's federal and state and
Speaker 1: constitutional rights of a fair trial, confrontation, and due process.
Speaker 1: As five. Mister Cox Amazon Amazon testimony must be excluded
Speaker 1: because no opinion or full analysis of the data has
Speaker 1: been provided. It appears that mister Cox has credentials to
Speaker 1: gather data at Amazon, but nothing disclosed indicates he has
Speaker 1: the expertise to form an opinion on data, and if
Speaker 1: he does have an opinion, based on analysis. Neither the
Speaker 1: analysis or opinion has been disclosed. The full amount of
Speaker 1: raw data received from Amazon has never been disclosed. Only
Speaker 1: narrow dates with some purchases have been disclosed, despite warrants
Speaker 1: seeking very broad materials over the span of a year,
Speaker 1: and according to warrant returns produced Excel spreadsheets apparently relied
Speaker 1: on by the state have redacted purchases without explanation context
Speaker 1: for purchases at least six months prior to what has
Speaker 1: been provided or critical for drawing opinions. There's no full
Speaker 1: disclosure or analysis of clickstream history that spans the scope
Speaker 1: of the multiple warrants and subpoenas. There's no full Amazon
Speaker 1: advertising history, AI driven recommendations or cookies desay closed or analyzed.
Speaker 1: The identification of the devices used is not disclosed or analyzed.
Speaker 1: No cart or wishless data is disclosed or analyzed. No
Speaker 1: omni channel tracking data or platforms are disclosed and analyzed.
Speaker 1: For a household where multiple members use the same Amazon account,
Speaker 1: the search warrant requests account wide data, including linked accounts
Speaker 1: and device identifiers for a year span that has not
Speaker 1: been produced, analyzed, or explained as expert opinion, Mister Coberger
Speaker 1: cannot prepare to confront purported evidence against him that is
Speaker 1: undisclosed and lacks context. The state is produced to select
Speaker 1: portion of a whole record. The state is cherry picked
Speaker 1: information he cannot determine if the state is asserting a
Speaker 1: direct search or review of items algorithmically suggested through Amazon's
Speaker 1: ad system. Testimony must be prohibited pursuant to Idaho Criminal
Speaker 1: Rule sixteen, Idaho Rules of Evidence, the Court's scheduling order,
Speaker 1: and mister Coburger's federal and constitutional rights of a fair trial, confrontation,
Speaker 1: and due process. The subject matter of this testimony has
Speaker 1: challenged separately in motion in Leamonae Number fifteen as seven
Speaker 1: Michael Douglas any opinion testimony must be excluded. All arguments
Speaker 1: at fourth in shang Cox in paragraph four above are
Speaker 1: incorporated for Michael Douglas as it relates to any testimony
Speaker 1: about Amazon and Amazon clicks. The state intends to use
Speaker 1: agent Douglas as an Amazon expert without any explanation other
Speaker 1: than what a cherry picked group of records might show.
Speaker 1: The state has produced some records and reports relating to
Speaker 1: documents collected by witnesses. Not all raw data has been disclosed.
Speaker 1: No explanation of underlying raw data or how it was
Speaker 1: analyzed has been disclosed. The state is not produced a
Speaker 1: summary of an opinion about the purported meaning of such documents.
Speaker 1: Opinion testimony must be prohibited in pursuant to Idaho Criminal
Speaker 1: Rule sixteen, Idaho rules of Evidence, the Court scheduling order,
Speaker 1: and mister Colberger's federal and state constitutional rights of a
Speaker 1: fair trial, confrontation and due process s fifteen and S
Speaker 1: twenty five. Various Idaho State laboratory expert witnesses are anticipated
Speaker 1: in trial to the extent that their opinions are limited
Speaker 1: to their reports, authored by them and based on their
Speaker 1: own expert evaluation is not the subject of this motion.
Speaker 1: In Lemonae, this motion seeks an order preventing testimony outside
Speaker 1: of their reports testimonies through any of these witnesses other
Speaker 1: than their own opinions stated in Idaho State Police forensic
Speaker 1: laboratory reports must be prohibited pursuing to Idaho Criminal Rule sixteen,
Speaker 1: Idaho rules of Evidence, the Court scheduling order, and mister
Speaker 1: Colberger's federal and state constitutional rights of a fair trial,
Speaker 1: confrontation and due process S twenty one. Riilean Nawln S.
Speaker 1: Twenty one has been disclosed challenged to her propos Testimony
Speaker 1: is covered in a separate motion in Lemina number six
Speaker 1: S twenty two Eric C. The expert opinion of this
Speaker 1: DNA technician provides an explanation of possible testimony regarding a
Speaker 1: methodology for DNA testing YSTR for which the defense has
Speaker 1: received no discovery or indication that the method has been used.
Speaker 1: In this case, there is no opinion disclosed other than
Speaker 1: because of the large volume of discovery. The state directs
Speaker 1: the defense to summary reports of the expert's ultimate conclusions,
Speaker 1: which can be found in Labraport three lab Report three
Speaker 1: Bates number five seven two one DASH five seven three
Speaker 1: one is DNA data of an alternate suspect, but no
Speaker 1: ultimate opinion or results is specified. Testimony through this witness
Speaker 1: other than that relating to an alternate perpetrator must be
Speaker 1: prohibited pursuant to Idaho Criminal Rules sixteen, Idaho Rules of Evidence,
Speaker 1: the Court's scheduling order, and mister Koberger's federal and state
Speaker 1: constitution rights of a fair trial, confrontation, and due process.
Speaker 1: All right, we're going to wrap up Part one right
Speaker 1: here and in the next episode, we're going to pick
Speaker 1: up where we left off, and that's with S ten
Speaker 1: and S thirteen. All of the information that goes with
Speaker 1: this episode, including my contact information, 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 up
Speaker 1: where we left off with motion in lemon A Number two.
Speaker 1: Vague and undisclosed expert testimony S tens thirteen and AS
Speaker 1: fourteen Maori, Tanzola and Urig. The state has provided no
Speaker 1: disclosure of any expert opinions related to sixty seven electronic
Speaker 1: devices and third party data collected during the investigation. The
Speaker 1: state is failed to identify well portions of the electronic
Speaker 1: device data, digital data, and or third party search warrant
Speaker 1: return data will be presented. The state is failed to
Speaker 1: disclose any expert opinion about what any analysis of the
Speaker 1: devices and data depict. The state is disclosed in discovery.
Speaker 1: A new report stating further examination is taking place. That
Speaker 1: disclosure came well after the state's discovery deadline. The report
Speaker 1: does not contain any sort of opinion. Recently, the states
Speaker 1: submitted robuttal expert disclosures repeatedly. The state rights that it
Speaker 1: cannot provide rebuttal is mister Colberger has not provided information
Speaker 1: about what his experts may say. The state's disclosure would
Speaker 1: seem to be proverbial chicken and egg anecdote. Except in
Speaker 1: criminal proceedings, the accused as rights under the United States
Speaker 1: Constitution and the Idaho Constitution, core proceedings are rule bound
Speaker 1: and presiding judges pronounced deadlines. As such, the state was
Speaker 1: required to provide expert opinions to which mister Colberger would
Speaker 1: rebut the state's disclosures remain vague. Mister Colburger cannot prepare
Speaker 1: to confront purported evidence that is undisclosed. The electronic evidence
Speaker 1: in this case is critical, and the state is impeding
Speaker 1: the defense from being able to prepare to confront evidence
Speaker 1: or use evidence in mister Colberger's capital trial. Testimony must
Speaker 1: be prohibited pursuant to Idaho Criminal Rule sixteen, Idaho Rules
Speaker 1: of Evidence, the Court's scheduling order, and mister Colberger's federal
Speaker 1: and state constitutional rights of a fair trial, confrontation, and
Speaker 1: due process s seven. Detective Gilbertson. The state did not
Speaker 1: disclose Detective Gilbertson in their initial disclosures, but instead listed
Speaker 1: them as a rebuttal witness. The state did not identify
Speaker 1: any specific expert or opinion that the detective will rebut Thus,
Speaker 1: this court should exclude this testimony is outside the scope
Speaker 1: of rebuttal and irrelevant. Moreover, the court should exclude the
Speaker 1: testimony under four H three B. The relevance of this
Speaker 1: testimony is minimal at best and carries the serious risk
Speaker 1: of juror confusion. The detective walked alone through a house
Speaker 1: that he is intimately familiar with in the middle of
Speaker 1: broad daylight, more than one week after the house had
Speaker 1: been vacated and changed significantly due to a homicide investigation.
Speaker 1: He simply counted out loud upon entering rooms. This is
Speaker 1: a far cry from what the state alleges occurred. Additionally,
Speaker 1: mister Coberger attempted to learn more about the experiment through discovery.
Speaker 1: He saught such things as recordings or photographs of the
Speaker 1: time to run, or written notes taken and documented during
Speaker 1: the experiment. Nothing was provided in discovery. The prosecution stated
Speaker 1: that those items did not exist. Finally, the court should
Speaker 1: exclude this testimony because it violates mister Coberger's do rights process.
Speaker 1: The house has been torn down. The defense cannot now
Speaker 1: effectively robut this inflammatory and minimally relevant testimony. And to
Speaker 1: interject real quick, let's be very clear that the defense
Speaker 1: was a okay with this house getting torn down. And
Speaker 1: if you recall, this is the exact reason why I
Speaker 1: didn't want this place to get torn down. I knew
Speaker 1: the defense was going to try and make something of it.
Speaker 1: And here we are. Gary Dawson Ebert was disclosed for
Speaker 1: the first time in the States rebuttal experts. He is
Speaker 1: a toxicology expert. Mister Kolberger did not disclose any expert
Speaker 1: relating to toxicology. This expert is not a rebuttal expert
Speaker 1: and should be excluded from trial. David Middleman, this expert
Speaker 1: was disclosed as a rebuttal expert relating Diegg matters. This
Speaker 1: expert is addressed in a separate motion see emotion in
Speaker 1: Lemonae number twelve two. It is in the interest of fairness, justice,
Speaker 1: and judicial economy to exclude the listed experts. Lake disclosed
Speaker 1: expert opinions do not allow the defense sufficient opportunity to
Speaker 1: conduct the follow up investigation necessary and put the defense
Speaker 1: at a significant disadvantage. The state is turned over numerous
Speaker 1: generic responses identifying expert names, but only vaguely describing the
Speaker 1: subject matter that they will testify too. The disclosures do
Speaker 1: not identify the content of the anticipated testimony, nor the
Speaker 1: documents or evidence that the expert relied on to reach
Speaker 1: that conclusion. As federal courts applying the analog Federal criminal Rule,
Speaker 1: if held, a mere list of topics or general subject
Speaker 1: matter about which an expert witness may testify is not
Speaker 1: a discovery or response that complies with the rule. State
Speaker 1: versus more In one fifty eight Idaho. Six twenty two,
Speaker 1: six twenty six, three forty nine p. Dot three d
Speaker 1: twelve thirteen twelve, seventeen, twenty fifteen. The disclosure rules are
Speaker 1: not simply for case management purposes, but fundamental to a
Speaker 1: defendant's right to a fair trial. The rules are designed
Speaker 1: to promote fairness and candor, facilitate fair and expedient pre
Speaker 1: trial fat gathering, and prevent surprise at trial. Edmunds versus Crainer,
Speaker 1: one forty two, Idaho. Eight sixty seven, eight seventy three
Speaker 1: through seventy eight, one thirty six, p. Three d. Three
Speaker 1: thirty eight, two thousand and six, discussing similar rules, applicable
Speaker 1: to civil cases. See also CMT ninety nine three Amendment
Speaker 1: to Federal rule a Criminal Procedure sixteen. The amendment requiring
Speaker 1: the disclosure of expert opinion testimony is intended to minimize
Speaker 1: surprise that often results from unexpected expert testimony, reduce the
Speaker 1: need for continuances, and provide the opponent with a fair
Speaker 1: opportunity to test the merit of the expert testimony through
Speaker 1: focused cross examination. These purposes are not accomplished by a
Speaker 1: generic discovery response of the type presented here. Other courts
Speaker 1: analyzing the analogous federal rules have explained why late disclosures
Speaker 1: are so prejudicial to the opposing party, even in the
Speaker 1: civil context in which constitutional protections are far fewer than
Speaker 1: those guaranteed to criminal defendants. For example, in Churchill versus Us,
Speaker 1: the trial court found that the exclusion of several expert
Speaker 1: witness testimonies when one party complied with the court's expert
Speaker 1: disclosure deadline and one party provided only the names of
Speaker 1: experts and fail to provide detail reports or opinions. Case
Speaker 1: number one zero nine CV zero one eight four to
Speaker 1: six February eighth, twenty eleven, the court found that simply
Speaker 1: reciting the names of the experts does not prevent surprise
Speaker 1: by the opponents id At eight, and specifically noted that
Speaker 1: prejudice that occurs when one party complies with the deadline
Speaker 1: and the other party does not, As in this case,
Speaker 1: the state's experts have had the benefit of being in
Speaker 1: a position to examine and robut the opinions set forth
Speaker 1: by the defendant experts in their initial reports. This is
Speaker 1: a significant litigation advantage. The party who failed to comply
Speaker 1: with the deadline set forth several reasons why the defense
Speaker 1: was not prejudiced, but the court observed that forcing the
Speaker 1: innocent party to complete everything necessary on an expedited timeline
Speaker 1: was inherently prejudicial to their case. Even assuming all the
Speaker 1: necessary investigation and preparation can be achieved in six weeks,
Speaker 1: an ambitious schedule to impose on a defendant. As the
Speaker 1: innocent party, there would be in sufficient time for the
Speaker 1: court to hear and decide non dispositive motions related to
Speaker 1: expert discovery before the dispositive motion filings deadline less than
Speaker 1: one month later, on April twelfth, twenty eleven, Document number
Speaker 1: twenty five. Thus, the cascade of time extensions will affect
Speaker 1: the deadlines set four dispositive motions. The pre trial conference
Speaker 1: is scheduled for July sixth, twenty eleven, and ultimately the trial,
Speaker 1: which is currently scheduled for August twelfth, twenty eleven. The
Speaker 1: Court then noted the importance of parties complying with the
Speaker 1: scheduling order in good faith. Plaintiff's assumption that six months
Speaker 1: is sufficient time to revamp the scheduling order in this
Speaker 1: case to timely precede the trial is mistaken and shows
Speaker 1: a fundamental misunderstanding of the purpose of the Court's scheduling orders.
Speaker 1: The dates were not haphazardly selected or unrelated to the
Speaker 1: needs of the parties or the court. Instead, the scheduling
Speaker 1: order represented the best estimate of the Court and Council
Speaker 1: as to the agenda most suitable to dispose of this case.
Speaker 1: As the Ninth Circuit is made clear, disruption to the
Speaker 1: schedule of the Court and other parties is not harmless.
Speaker 1: In these days of heavy case loads, trial courts routinely
Speaker 1: set schedules and established deadlines to foster the efficient treatment
Speaker 1: and resolution of cases Idea ten sixty. As the torrent
Speaker 1: of civil and criminal cases unleashed in recent years has
Speaker 1: threatened to inundate the federal courts. Deliverance has been sought
Speaker 1: in the use of calendar management techniques. Rule sixteen is
Speaker 1: an important component of those techniques. Johnson versus Mammoth Recreations Incorporated.
Speaker 1: Nine seven five f dot two D. Thus, a scheduling
Speaker 1: order is not a frivolous piece of paper idly entered,
Speaker 1: which can be cavalierly disregarded by counsel without peril. Parties
Speaker 1: must understand that they will pay a price for failure
Speaker 1: to comply strictly with scheduling orders, and that failure to
Speaker 1: do so may properly supports severest sanctions and exclusions of
Speaker 1: evidence see Albert Disino Construction versus Aspen Insurance UK Limited,
Speaker 1: twenty twenty, excluding witnesses. Because the report was not provided
Speaker 1: until almost three months after the deadline had passed to
Speaker 1: appriving the opposing party of time it could have used
Speaker 1: to prepare accordingly and provide the disclosing party with a
Speaker 1: litigation advantage. State vers Martinez, one thirty seven Idaho eight four,
Speaker 1: two thousand and two. In Taylor versus Illinois, the United
Speaker 1: States Supreme Court stated that when the omission was wilful
Speaker 1: and motivated by a desire to obtain a tactical advantage
Speaker 1: that would minimize the effectiveness of cross examination and the
Speaker 1: ability to adduce rebuttal evidence. It would be entirely consistent
Speaker 1: with the purposes of the compulsory process clause to exclude
Speaker 1: the witness testimony. The same analysis is applicable here and
Speaker 1: carries even more force. Mister Colberger is a capital defendant
Speaker 1: who is entitled to his day in course or without
Speaker 1: undue delay by the prosecution. He's entitled to a heightened
Speaker 1: standard of reliability because prosecutors are seeking his execution. Prejudice
Speaker 1: is magnified in a criminal case when the state has
Speaker 1: the advantage of the defendant's expert disclosures in drafting their
Speaker 1: initial expert opinions. The state has the resources of dozens,
Speaker 1: if not hundreds of people working on its behalf from
Speaker 1: various state and federal agencies. It has the advantage of
Speaker 1: technology that's available only to law enforcement agencies and not
Speaker 1: to the defense. It's bringing the full resources to the
Speaker 1: state of Idaho to bear alongside assistance from the federal government.
Speaker 1: While mister Coberger has a defense team consisting of three attorneys,
Speaker 1: one investigator, and one mitigation specialist, who must now not
Speaker 1: only review all of the state's evidence, but conduct an
Speaker 1: independent investigation into both the circumstances of the crime and
Speaker 1: into mister Colberger's entire life story. The pre existing resource
Speaker 1: disparity must be taken into account when assessing the additional
Speaker 1: tactical advantage that the state is improperly obtained. Notably, the
Speaker 1: state did not seek modification of the scheduling order to
Speaker 1: allow for a later disclosure deadline, which would have equally
Speaker 1: applied to the defense and would not have given the
Speaker 1: prosecution a tactical advantage. It's fundamentally unfair for the state
Speaker 1: to shirk the court's order and reap the tactical advantage
Speaker 1: of being able to review the defense expert opinions before
Speaker 1: making their initial disclosures. In addition to the already existing
Speaker 1: advantage to resources, the court should exclude the listed expert
Speaker 1: reports and evidence listed above and preclude the death penalty
Speaker 1: at trial in order to cure some measure of the
Speaker 1: prejudice to mister Coberger. This document was dated February twenty fourth,
Speaker 1: twenty twenty five, and it was signed by Anne Taylor,
Speaker 1: all of The information along with my contact information can
Speaker 1: be found in the description box. What's up everyone, and
Speaker 1: welcome back to the program. In this we're headed back
Speaker 1: up to Moscow and we're going to take a look
Speaker 1: at a few motions that were filed in Lemonae by
Speaker 1: the defense, and all of these motions have to do
Speaker 1: with inflammatory evidence. Case number CR zero one, DASH two four,
Speaker 1: DASH three one sixty sixty five, State of Idaho, Plaintiff
Speaker 1: first Brian C. Colberger, the defendant motion in Lemonae number one,
Speaker 1: Inflammatory evidence comes now Brian C. Colberger buying through his
Speaker 1: attorneys of record, and hereby moves the Court for an
Speaker 1: order preventing the prosecution from introducing irrelevant and unfairly prejudicial photographs, testimony,
Speaker 1: and other exhibits in violation of his right to a
Speaker 1: fair trial, protected through the fifth, sixth, and fourteenth Amendments
Speaker 1: of the United States Constitution and Section one, Article thirteen
Speaker 1: of the Idaho Constitution. Such rights are protected through application
Speaker 1: of Idaho criminal rules and Idaho rules of evidence. Mister
Speaker 1: Colberger respectfully requests this court order the State to not
Speaker 1: try the case through eliciting testimony and other evidence that
Speaker 1: is exceptionally inflammatory presenting the case in an emotional and
Speaker 1: inflammatory way is unfairly prejudicial. Any probitive value is less
Speaker 1: than the danger. Additionally, the prosecution should not present the
Speaker 1: same information in a variety of ways, which is misleading
Speaker 1: or accumulative and a waste of time. IRI four three states,
Speaker 1: although relevant evidence may be excluded if its probitive value
Speaker 1: is substantially outweighed by the danger of unfair prejudice, confusion
Speaker 1: of the issues, or misleading the jury, or by considerations
Speaker 1: of undue delay, waste of time, or needless presentation of
Speaker 1: cumulative evidence. The case contains over sixty eight terabytes of data.
Speaker 1: This data contains thousands of photographs, many depict roughly the
Speaker 1: same content. There are photographs that depict the deceased as
Speaker 1: well as the same location without the deceased. Multiple office
Speaker 1: took photographs of the same areas. Additionally, there are many
Speaker 1: hours of body worn camera footage. Body worn footage depicts
Speaker 1: the officers moving throughout the house. There are hundreds of
Speaker 1: photographs of autopsy proceedings. In addition to this evidence, over
Speaker 1: one hundred officers and investigators have been involved in the case,
Speaker 1: and hundreds of people that have been interviewed. Mister Kolberger
Speaker 1: seeks to protect the integrity of this trial and requests
Speaker 1: in order preventing inflammatory evidence, including testimonial evidence, to be excluded.
Speaker 1: Appeals to emotion, passion, or prejudice of the jury through
Speaker 1: use of inflammatory tactics are impermissible. State versus. Phillips one
Speaker 1: forty four, Idaho. Eighty two eighty seven one fifty six,
Speaker 1: p Dot three, D five eighty three, five eighty eight.
Speaker 1: See also State versus. Bab one twenty five, Idaho, nine
Speaker 1: thirty four, nine forty two, eight seventy seven, P Dot two,
Speaker 1: D nine oh five nine thirteen, nineteen ninety four. State versus.
Speaker 1: Ellington one fifty one Idaho. Fifty three two fifty three,
Speaker 1: p Dot three, D seven twenty seven, twenty eleven. Mister
Speaker 1: Colberger acknowledges the Idaho Supreme Court has held that a
Speaker 1: photograph cannot be excluded merely on the basis of being
Speaker 1: gruesome State Verse win one, twenty one, Idaho, eight fifty
Speaker 1: nineteen ninety two. However, mister Coburger is not making that motion. Rather,
Speaker 1: he is requesting that the state be prevented from introducing
Speaker 1: inflammatory evidence. Multiple studies have found that mock jurors are
Speaker 1: more likely to convict when exposed to graphic photos. Kevin S.
Speaker 1: Douglas The impact of photographic evidence on mock juror's decisions
Speaker 1: in a murder trial, probative or prejudicial twenty one, Law
Speaker 1: and Human Behavior, forty five through five oh one, nineteen
Speaker 1: ninety seven. Gruesome evidence and emotion, anger, blame, and jury
Speaker 1: decision making. Other studies have shown that judicial instructions to
Speaker 1: ignore such evidence are ineffective, while some have actually found
Speaker 1: such instructions cause jurors to place more emphasis on that evidence.
Speaker 1: Joe Lieberman and Jamie Ampt Understanding the limits of limiting instructions.
Speaker 1: Social psychological explanations for the failures of instructions to disregard
Speaker 1: pre trial publicity and other inadmissible evidence. David A. Sklangsky,
Speaker 1: Evidentiary instructions and the Jury as Others sixty five Standard Review,
Speaker 1: four seven, twenty thirteen. Michelle Cox and Sarah Tanford. Effects
Speaker 1: of evidence and instructions in civil trials and experimental investigation
Speaker 1: or Rules of admissibility. Emily R. Edwards and Karen E.
Speaker 1: Motorella Preserving the Right to a Fair Trial. An examination
Speaker 1: of prejudicial value of visual and auditory evidence Saul M.
Speaker 1: Cassen and David A. Garfield, blood and guts, general and
Speaker 1: trial specific effects of videotape crime scenes on mock. Juror
Speaker 1: verdicts mister Coberger's right to affair trial free from irrelevant, cumulative,
Speaker 1: and unfairly prejudicial evidence, as guaranteed by the Constitution of
Speaker 1: the State of Idaho and the United States of America,
Speaker 1: would be violated to allow exhibits depicting gruesome details or
Speaker 1: the emotional reactions of the police officers at the scene
Speaker 1: or during their testimony during trial. This document was dated
Speaker 1: February twenty fourth, twenty twenty five, and it was signed
Speaker 1: by Anne Taylor. All Right, Moving on to the next document.
Speaker 1: This one is motion in lemon A number three the
Speaker 1: use of the term murder Case number zero one twenty
Speaker 1: four dashed three one sixty six five, State of Idaho,
Speaker 1: Plaintiff verse Brian C. Coberger. The defendant comes now Brian C. Coburger,
Speaker 1: buying through his attorneys of record, and hereby moves the
Speaker 1: Court for an order prohibiting the use of the words murder, murderer, murdered, murder, weapon,
Speaker 1: and similar reforms of the word murder applied to Brian
Speaker 1: Colberger during the trial of this matter. This motion is
Speaker 1: not seeking a prohibition on the use of the word
Speaker 1: murder or its varying forms in the charging document or
Speaker 1: jury instructions. This motion is made pursuant ICR. Forty seven
Speaker 1: IRE four three, seven oh one seven O two, the fifth, sixth,
Speaker 1: and fourteenth Amendments to the United States Constitution, and Article one,
Speaker 1: Section thirteen of the Idaho Constitution. Whether the killing at
Speaker 1: issue or murder as allegedly committed by Brian Coolberger or
Speaker 1: by an alternate suspect or someone still unknown, is the
Speaker 1: ultimate issue. Each side will present this very argument to
Speaker 1: the jury. It's a matter of fact to be found
Speaker 1: by the jury after the court instructs the jury with
Speaker 1: the applicable instructions. To label mister Coeberger as a murderer,
Speaker 1: the alleged weapon consistent with an empty sheath as a
Speaker 1: murder weapon, or to assert that any of the four
Speaker 1: decedents was murdered by mister Colberger denies his right to
Speaker 1: a fair trial and the right to be presumed innocent.
Speaker 1: Ire four three allows exclusion of evidence that is unfairly
Speaker 1: prejudicial to a party by analogy. The same principles should
Speaker 1: apply to terminology that is unfairly prejudicial. The use of
Speaker 1: the word murder during the course of the trial is
Speaker 1: unfairly prejudicial in that it asserts a factual and legal
Speaker 1: conclusion of the evidence, a determination which is left to
Speaker 1: the jury. The prosecutor, law enforcement, and medical examiner are
Speaker 1: viewed with authority and respect by most jurors. When person
Speaker 1: with authorities speak, lay people tend to believe their statements
Speaker 1: and conclusions. If the prosecution and or its witnesses use
Speaker 1: these words in its case in chief, it would improperly
Speaker 1: apply to the jury that it's the prosecutor or witnesses
Speaker 1: belief or opinion that the defendant is guilty of murder.
Speaker 1: This is in proper opinion testimony. Under Ire seven O
Speaker 1: one through seven O four. It's improper for the prosecution
Speaker 1: to express us a personal belief unless the comment is
Speaker 1: based solely on inference. Expert testimony that concerns conclusions or
Speaker 1: opinions that the average jurors qualified to draw from the facts,
Speaker 1: utilizing the jurors common sense and normal experience is inadmissible.
Speaker 1: State Verus Ellington one fifty one, Idaho fifty three sixty
Speaker 1: six two fifty three p Dot three D seven twenty
Speaker 1: seven seven forty twenty eleven. Mister Coberger requests in order
Speaker 1: prohibiting the lawyers and witnesses from using the words murder, murderer, murdered, murder, weapon,
Speaker 1: as well as a derivative form of the word murder.
Speaker 1: This document was dated February twenty fourth, twenty twenty five,
Speaker 1: and this was also signed by Ann Taylor. All Right,
Speaker 1: Moving on to our final document for this episode, we
Speaker 1: have the motion in Lemona number four using the term
Speaker 1: psychopath or sociopath. Case number CR zero one Dash twenty
Speaker 1: four DA VAH three one sixty sixty five, State Idaho.
Speaker 1: Plaintiff first, Brian C. Coburger. The defendant comes now Brian C.
Speaker 1: Coburger buying through his attorneys of record, and hereby moves
Speaker 1: the Court for an order prohibiting this state from name calling. Specifically,
Speaker 1: this motion seeks to bar the use of the terms
Speaker 1: psychopath and sociopath. This motion is made pursuant ICR. Forty
Speaker 1: seven Ire four oh three, seven oh one through seven
Speaker 1: oh four. The fifth, sixth, and fourteenth Amendments to the
Speaker 1: United States Constitution and Article one Section thirteen of the
Speaker 1: Idaho Constitution Ire four oh three allows exclusion of evidence
Speaker 1: that is unfairly prejudicial to a party by analogy. The
Speaker 1: same principle should apply to the terminology that is unfairly prejudicial.
Speaker 1: The use of the word psychopath or sociopath during the
Speaker 1: course of the trial is unfairly prejudicial. See attached to
Speaker 1: affidavit of John Edens. This is in proper opinion testimony
Speaker 1: under Ire seven oh one through seven oh four. Neither
Speaker 1: term is a proper diagnosis and is unequivocally unfairly prejudicial.
Speaker 1: Mister Coberger requests in order prohibiting the lawyers and witnesses
Speaker 1: from using the word psychopath and sociopath. This document was
Speaker 1: dated February twenty fourth, twenty twenty five, and this document
Speaker 1: was signed by Ann Taylor. All Right, folks, that's going
Speaker 1: to do it for this one. All of the information,
Speaker 1: including my contact information, can be found in the description box.