WEBVTT 1 00:00:00.080 --> 00:00:03.439 What's up everyone, and welcome back to the program. In 2 00:00:03.480 --> 00:00:06.120 this episode, we're headed right back up to Moscow, and 3 00:00:06.240 --> 00:00:09.039 this time we're going to take a look at the 4 00:00:09.039 --> 00:00:14.400 motion in Lemana number two Vague and undisclosed expert testimony. 5 00:00:14.839 --> 00:00:17.280 And this is the motion that was filed by Brian 6 00:00:17.359 --> 00:00:22.079 Colberger case number CR zero one DASH twenty four DASH 7 00:00:22.199 --> 00:00:26.760 thirty one six sixty five. Motion in Lemona number two, 8 00:00:27.160 --> 00:00:31.440 Vague and undisclosed expert testimony, State of Idaho Plaintiff vers 9 00:00:31.440 --> 00:00:37.240 Brian C. Coberger. The defendant comes now Brian C. Coburger 10 00:00:37.280 --> 00:00:39.960 buying through his attorneys of record, and hereby moves the 11 00:00:40.000 --> 00:00:44.119 Court for an order excluding vague and undisclosed expert testimony. 12 00:00:44.600 --> 00:00:49.280 Allowing vague and undisclosed expert testimony violates Brian's federal and 13 00:00:49.359 --> 00:00:53.039 state constitutional rights to do process, a fair trial, of 14 00:00:53.119 --> 00:00:58.079 effective assistance of counsel and confrontation of witnesses. This motion 15 00:00:58.240 --> 00:01:01.079 is based on the fifth, sixth and fourteen amendments to 16 00:01:01.200 --> 00:01:05.120 the United States Constitution, Article one, Section thirteen of the 17 00:01:05.120 --> 00:01:09.439 Idaho Constitution, Idaho Criminal Rule sixteen, and Idaho Rules of 18 00:01:09.439 --> 00:01:12.280 Evidence one O two one O four seven O two 19 00:01:12.480 --> 00:01:16.000 seven oh one and seven oh three. The due process 20 00:01:16.040 --> 00:01:20.280 clause requires that criminal prosecutors co import with prevailing notions 21 00:01:20.280 --> 00:01:24.840 of fundamental fairness California Versus Trombeta four sixty seven US 22 00:01:25.000 --> 00:01:29.200 four seventy nine, four eighty five, nineteen eighty four. The 23 00:01:29.280 --> 00:01:33.200 requested exclusions are made to secure a fairness in administration 24 00:01:33.359 --> 00:01:36.760 to the end the truth may be ascertained and proceedings 25 00:01:36.840 --> 00:01:41.280 justly determined see Ire one O two. These matters are 26 00:01:41.359 --> 00:01:44.519 ripe for consideration by the court pursue into Ire one 27 00:01:44.599 --> 00:01:47.920 O four based on the existence of issues that involve 28 00:01:47.959 --> 00:01:52.319 preliminary questions of admissibility, and because the determination of these 29 00:01:52.359 --> 00:01:56.280 issues now fundamentally impacts the defense ability to prepare a 30 00:01:56.319 --> 00:02:00.400 comprehensive defense and focus on evidence and experts that will 31 00:02:00.400 --> 00:02:03.560 actually be at issue in the limited timeframe prior to trial. 32 00:02:03.959 --> 00:02:08.759 Mister Coburger hereby incorporates all arguments and authorities contained in 33 00:02:08.879 --> 00:02:11.919 his motion to preclude the death penalty and adopt other 34 00:02:12.000 --> 00:02:17.120 necessary procedures. Due to the state's numerous disclosure violations. One, 35 00:02:17.639 --> 00:02:21.280 Mister Coeberger requests exclusion and or limitation of the following 36 00:02:21.319 --> 00:02:27.360 expert testimony one S one Jenny Ayre's forensic scientist. Testimony 37 00:02:27.439 --> 00:02:30.520 must be limited to only her work depicted in Idaho 38 00:02:30.560 --> 00:02:34.439 State Police Forensic Laboratory Report twenty five and her checklist 39 00:02:34.719 --> 00:02:38.639 of testing in mister Colberger's apartment in office. She is 40 00:02:38.680 --> 00:02:43.000 not authored any laboratory reports expressing opinion. Any other testimony 41 00:02:43.080 --> 00:02:47.319 is outside of Idaho Criminal Rule sixteen Idaho Rules of Evidence, 42 00:02:48.000 --> 00:02:51.639 the Court's scheduling order, and violates mister Colberger's federal and 43 00:02:51.759 --> 00:02:58.039 state constitutional rights of affair, trial, confrontation, and due process s. 44 00:02:58.080 --> 00:03:02.680 Two FBI Special Agent Niickeol Balance testimony must be prohibited 45 00:03:02.719 --> 00:03:06.000 as no report containing findings or opinions has been produced. 46 00:03:06.560 --> 00:03:10.479 The only disclosures are two PowerPoint presentations. One is noted 47 00:03:10.479 --> 00:03:14.919 as a draft. The PowerPoint depicts information derived from cell 48 00:03:15.000 --> 00:03:19.280 tower data, call detail records, drive test data, and interpretation 49 00:03:19.400 --> 00:03:23.800 of the same. It's abundantly clear that in creating this PowerPoint, 50 00:03:23.879 --> 00:03:27.840 special Agent Balance used an unknown methodology to analyze and 51 00:03:27.919 --> 00:03:32.280 visualize certain data contained within the defendant's call detail records 52 00:03:32.520 --> 00:03:37.560 while omitting and or ignoring other relevant data. It's impossible 53 00:03:37.599 --> 00:03:41.520 to determine why certain data was included in the PowerPoint 54 00:03:41.560 --> 00:03:45.039 while no other data was omitted ignored, As Special Agent 55 00:03:45.080 --> 00:03:50.039 Balance as produced no report documenting his actual analysis the 56 00:03:50.159 --> 00:03:54.400 omitted ignored data referenced above his exculpatory evidence. In mister 57 00:03:54.439 --> 00:03:59.439 Kolberger's defense, the call detail records in full provide partial 58 00:03:59.439 --> 00:04:03.919 alhibiic corroboration. As such, the complete lack of disclosure as 59 00:04:03.960 --> 00:04:07.240 to any opinion and or report addressing this issue from 60 00:04:07.240 --> 00:04:11.080 Agent Balance makes it impossible to anticipate what he may 61 00:04:11.159 --> 00:04:15.240 testify to as an expert on this matter. In its 62 00:04:15.319 --> 00:04:19.439 expert rebuttal disclosures, the State provided a summary of Special 63 00:04:19.439 --> 00:04:23.240 Agent Balance proposed testimony. Portions of the summary are in 64 00:04:23.319 --> 00:04:28.120 direct conflict with his previous PowerPoint disclosures, further complicating mister 65 00:04:28.199 --> 00:04:33.040 Colberger's guesses at what his testimony may be. Mister Colberger's 66 00:04:33.040 --> 00:04:36.920 expert SIRAE, has conducted a detailed analysis of Special Agent 67 00:04:37.000 --> 00:04:41.040 Balance PowerPoint and found severely flawed findings that are well 68 00:04:41.079 --> 00:04:45.079 outside of established and known practices in the field. The 69 00:04:45.160 --> 00:04:48.439 PowerPoint is vague and makes it impossible to determine what 70 00:04:48.560 --> 00:04:52.120 Special Agent Balance is claiming. Thus, the additional summary does 71 00:04:52.160 --> 00:04:55.360 not remedy the lack of disclosure, leaving mister Colberger an 72 00:04:55.399 --> 00:05:00.120 inability to repair and meet the constitutional protection of confrontation. 73 00:05:01.040 --> 00:05:06.040 Testimony must be prohibited pursuant Idaho Criminal Rule sixteen, Idaho 74 00:05:06.160 --> 00:05:09.720 Rules of Evidence, the court scheduling order, and mister Colberger's 75 00:05:09.720 --> 00:05:13.360 federal and state constitutional rights of a fair trial, confrontation, 76 00:05:13.759 --> 00:05:18.079 and due process as three and s four. Mister and 77 00:05:18.240 --> 00:05:23.160 Miss Barnhardt testimony must exclude everything other than specifically disclosed, 78 00:05:23.519 --> 00:05:27.160 including purported habit evidence the state is not produced or 79 00:05:27.199 --> 00:05:31.279 report specifying what habits are referred to. No expert opinion 80 00:05:31.279 --> 00:05:35.800 has been disclosed. Mister Colburger cannot prepare to confront purported 81 00:05:35.800 --> 00:05:40.240 evidence against them that is undisclosed. Testimony must be prohibited 82 00:05:40.439 --> 00:05:44.720 pursuant Idaho Criminal Rule sixteen, Idaho Rules of Evidence, the 83 00:05:44.759 --> 00:05:48.360 Court scheduling Order, and mister Colburger's federal and state and 84 00:05:48.399 --> 00:05:53.319 constitutional rights of a fair trial, confrontation, and due process. 85 00:05:54.240 --> 00:05:59.079 As five. Mister Cox Amazon Amazon testimony must be excluded 86 00:05:59.120 --> 00:06:02.160 because no opinion or full analysis of the data has 87 00:06:02.199 --> 00:06:06.079 been provided. It appears that mister Cox has credentials to 88 00:06:06.120 --> 00:06:10.199 gather data at Amazon, but nothing disclosed indicates he has 89 00:06:10.240 --> 00:06:13.560 the expertise to form an opinion on data, and if 90 00:06:13.560 --> 00:06:16.560 he does have an opinion, based on analysis. Neither the 91 00:06:16.600 --> 00:06:20.680 analysis or opinion has been disclosed. The full amount of 92 00:06:20.759 --> 00:06:24.160 raw data received from Amazon has never been disclosed. Only 93 00:06:24.240 --> 00:06:27.959 narrow dates with some purchases have been disclosed, despite warrants 94 00:06:27.959 --> 00:06:31.040 seeking very broad materials over the span of a year, 95 00:06:31.680 --> 00:06:36.879 and according to warrant returns produced Excel spreadsheets apparently relied 96 00:06:36.879 --> 00:06:42.240 on by the state have redacted purchases without explanation context 97 00:06:42.240 --> 00:06:45.040 for purchases at least six months prior to what has 98 00:06:45.079 --> 00:06:48.680 been provided or critical for drawing opinions. There's no full 99 00:06:48.720 --> 00:06:52.639 disclosure or analysis of clickstream history that spans the scope 100 00:06:52.639 --> 00:06:56.040 of the multiple warrants and subpoenas. There's no full Amazon 101 00:06:56.160 --> 00:07:01.079 advertising history, AI driven recommendations or cookies desay closed or analyzed. 102 00:07:01.920 --> 00:07:06.040 The identification of the devices used is not disclosed or analyzed. 103 00:07:06.519 --> 00:07:10.439 No cart or wishless data is disclosed or analyzed. No 104 00:07:10.519 --> 00:07:14.519 omni channel tracking data or platforms are disclosed and analyzed. 105 00:07:14.519 --> 00:07:18.199 For a household where multiple members use the same Amazon account, 106 00:07:18.920 --> 00:07:22.600 the search warrant requests account wide data, including linked accounts 107 00:07:22.600 --> 00:07:26.160 and device identifiers for a year span that has not 108 00:07:26.240 --> 00:07:31.639 been produced, analyzed, or explained as expert opinion, Mister Coberger 109 00:07:31.680 --> 00:07:35.160 cannot prepare to confront purported evidence against him that is 110 00:07:35.240 --> 00:07:38.920 undisclosed and lacks context. The state is produced to select 111 00:07:38.920 --> 00:07:41.800 portion of a whole record. The state is cherry picked 112 00:07:41.839 --> 00:07:45.319 information he cannot determine if the state is asserting a 113 00:07:45.360 --> 00:07:50.319 direct search or review of items algorithmically suggested through Amazon's 114 00:07:50.319 --> 00:07:55.079 ad system. Testimony must be prohibited pursuant to Idaho Criminal 115 00:07:55.120 --> 00:07:59.040 Rule sixteen, Idaho Rules of Evidence, the Court's scheduling order, 116 00:07:59.439 --> 00:08:04.639 and mister Coburger's federal and constitutional rights of a fair trial, confrontation, 117 00:08:05.079 --> 00:08:08.920 and due process. The subject matter of this testimony has 118 00:08:09.000 --> 00:08:12.759 challenged separately in motion in Leamonae Number fifteen as seven 119 00:08:12.879 --> 00:08:17.480 Michael Douglas any opinion testimony must be excluded. All arguments 120 00:08:17.519 --> 00:08:20.759 at fourth in shang Cox in paragraph four above are 121 00:08:20.759 --> 00:08:24.399 incorporated for Michael Douglas as it relates to any testimony 122 00:08:24.439 --> 00:08:28.480 about Amazon and Amazon clicks. The state intends to use 123 00:08:28.519 --> 00:08:33.000 agent Douglas as an Amazon expert without any explanation other 124 00:08:33.080 --> 00:08:35.799 than what a cherry picked group of records might show. 125 00:08:36.120 --> 00:08:38.759 The state has produced some records and reports relating to 126 00:08:38.799 --> 00:08:43.080 documents collected by witnesses. Not all raw data has been disclosed. 127 00:08:43.600 --> 00:08:46.519 No explanation of underlying raw data or how it was 128 00:08:46.559 --> 00:08:49.399 analyzed has been disclosed. The state is not produced a 129 00:08:49.480 --> 00:08:54.000 summary of an opinion about the purported meaning of such documents. 130 00:08:54.320 --> 00:08:58.480 Opinion testimony must be prohibited in pursuant to Idaho Criminal 131 00:08:58.519 --> 00:09:02.519 Rule sixteen, Idaho rules of Evidence, the Court scheduling order, 132 00:09:02.799 --> 00:09:06.480 and mister Colberger's federal and state constitutional rights of a 133 00:09:06.559 --> 00:09:11.879 fair trial, confrontation and due process s fifteen and S 134 00:09:12.080 --> 00:09:17.320 twenty five. Various Idaho State laboratory expert witnesses are anticipated 135 00:09:17.360 --> 00:09:20.600 in trial to the extent that their opinions are limited 136 00:09:20.600 --> 00:09:23.000 to their reports, authored by them and based on their 137 00:09:23.039 --> 00:09:26.600 own expert evaluation is not the subject of this motion. 138 00:09:27.000 --> 00:09:30.960 In Lemonae, this motion seeks an order preventing testimony outside 139 00:09:30.960 --> 00:09:35.200 of their reports testimonies through any of these witnesses other 140 00:09:35.320 --> 00:09:39.120 than their own opinions stated in Idaho State Police forensic 141 00:09:39.159 --> 00:09:43.919 laboratory reports must be prohibited pursuing to Idaho Criminal Rule sixteen, 142 00:09:44.279 --> 00:09:47.919 Idaho rules of Evidence, the Court scheduling order, and mister 143 00:09:48.000 --> 00:09:51.720 Colberger's federal and state constitutional rights of a fair trial, 144 00:09:51.799 --> 00:09:57.080 confrontation and due process S twenty one. Riilean Nawln S. 145 00:09:57.120 --> 00:10:00.720 Twenty one has been disclosed challenged to her propos Testimony 146 00:10:00.879 --> 00:10:03.840 is covered in a separate motion in Lemina number six 147 00:10:04.519 --> 00:10:07.840 S twenty two Eric C. The expert opinion of this 148 00:10:07.960 --> 00:10:12.360 DNA technician provides an explanation of possible testimony regarding a 149 00:10:12.399 --> 00:10:17.679 methodology for DNA testing YSTR for which the defense has 150 00:10:17.720 --> 00:10:21.039 received no discovery or indication that the method has been used. 151 00:10:21.080 --> 00:10:24.559 In this case, there is no opinion disclosed other than 152 00:10:24.679 --> 00:10:27.519 because of the large volume of discovery. The state directs 153 00:10:27.600 --> 00:10:31.159 the defense to summary reports of the expert's ultimate conclusions, 154 00:10:31.480 --> 00:10:34.600 which can be found in Labraport three lab Report three 155 00:10:34.679 --> 00:10:38.039 Bates number five seven two one DASH five seven three 156 00:10:38.120 --> 00:10:42.000 one is DNA data of an alternate suspect, but no 157 00:10:42.120 --> 00:10:46.919 ultimate opinion or results is specified. Testimony through this witness 158 00:10:47.240 --> 00:10:50.360 other than that relating to an alternate perpetrator must be 159 00:10:50.399 --> 00:10:55.159 prohibited pursuant to Idaho Criminal Rules sixteen, Idaho Rules of Evidence, 160 00:10:55.399 --> 00:10:59.360 the Court's scheduling order, and mister Koberger's federal and state 161 00:10:59.399 --> 00:11:03.279 constitution rights of a fair trial, confrontation, and due process. 162 00:11:04.080 --> 00:11:05.679 All right, we're going to wrap up Part one right 163 00:11:05.720 --> 00:11:07.679 here and in the next episode, we're going to pick 164 00:11:07.720 --> 00:11:10.919 up where we left off, and that's with S ten 165 00:11:11.159 --> 00:11:14.360 and S thirteen. All of the information that goes with 166 00:11:14.399 --> 00:11:18.639 this episode, including my contact information, can be found in 167 00:11:18.679 --> 00:11:21.639 the description box. What's up everyone, and welcome back to 168 00:11:21.679 --> 00:11:24.240 the program. In this episode, we're going to pick up 169 00:11:24.240 --> 00:11:27.200 where we left off with motion in lemon A Number two. 170 00:11:27.879 --> 00:11:32.799 Vague and undisclosed expert testimony S tens thirteen and AS 171 00:11:32.919 --> 00:11:37.440 fourteen Maori, Tanzola and Urig. The state has provided no 172 00:11:37.519 --> 00:11:41.399 disclosure of any expert opinions related to sixty seven electronic 173 00:11:41.440 --> 00:11:45.840 devices and third party data collected during the investigation. The 174 00:11:45.919 --> 00:11:48.799 state is failed to identify well portions of the electronic 175 00:11:48.840 --> 00:11:52.679 device data, digital data, and or third party search warrant 176 00:11:52.679 --> 00:11:55.440 return data will be presented. The state is failed to 177 00:11:55.480 --> 00:11:58.960 disclose any expert opinion about what any analysis of the 178 00:11:59.000 --> 00:12:03.000 devices and data depict. The state is disclosed in discovery. 179 00:12:03.000 --> 00:12:06.879 A new report stating further examination is taking place. That 180 00:12:06.919 --> 00:12:11.240 disclosure came well after the state's discovery deadline. The report 181 00:12:11.320 --> 00:12:15.000 does not contain any sort of opinion. Recently, the states 182 00:12:15.000 --> 00:12:18.919 submitted robuttal expert disclosures repeatedly. The state rights that it 183 00:12:18.960 --> 00:12:22.879 cannot provide rebuttal is mister Colberger has not provided information 184 00:12:23.200 --> 00:12:26.879 about what his experts may say. The state's disclosure would 185 00:12:26.960 --> 00:12:30.679 seem to be proverbial chicken and egg anecdote. Except in 186 00:12:30.720 --> 00:12:34.120 criminal proceedings, the accused as rights under the United States 187 00:12:34.159 --> 00:12:38.639 Constitution and the Idaho Constitution, core proceedings are rule bound 188 00:12:38.679 --> 00:12:42.879 and presiding judges pronounced deadlines. As such, the state was 189 00:12:42.960 --> 00:12:46.360 required to provide expert opinions to which mister Colberger would 190 00:12:46.440 --> 00:12:51.360 rebut the state's disclosures remain vague. Mister Colburger cannot prepare 191 00:12:51.360 --> 00:12:55.639 to confront purported evidence that is undisclosed. The electronic evidence 192 00:12:55.639 --> 00:12:58.320 in this case is critical, and the state is impeding 193 00:12:58.399 --> 00:13:01.840 the defense from being able to prepare to confront evidence 194 00:13:01.919 --> 00:13:05.960 or use evidence in mister Colberger's capital trial. Testimony must 195 00:13:06.000 --> 00:13:10.039 be prohibited pursuant to Idaho Criminal Rule sixteen, Idaho Rules 196 00:13:10.039 --> 00:13:14.120 of Evidence, the Court's scheduling order, and mister Colberger's federal 197 00:13:14.159 --> 00:13:18.080 and state constitutional rights of a fair trial, confrontation, and 198 00:13:18.200 --> 00:13:23.679 due process s seven. Detective Gilbertson. The state did not 199 00:13:23.759 --> 00:13:27.559 disclose Detective Gilbertson in their initial disclosures, but instead listed 200 00:13:27.600 --> 00:13:30.840 them as a rebuttal witness. The state did not identify 201 00:13:30.919 --> 00:13:35.480 any specific expert or opinion that the detective will rebut Thus, 202 00:13:35.519 --> 00:13:38.720 this court should exclude this testimony is outside the scope 203 00:13:38.840 --> 00:13:42.360 of rebuttal and irrelevant. Moreover, the court should exclude the 204 00:13:42.399 --> 00:13:45.759 testimony under four H three B. The relevance of this 205 00:13:45.840 --> 00:13:49.279 testimony is minimal at best and carries the serious risk 206 00:13:49.320 --> 00:13:53.279 of juror confusion. The detective walked alone through a house 207 00:13:53.519 --> 00:13:56.000 that he is intimately familiar with in the middle of 208 00:13:56.039 --> 00:13:59.000 broad daylight, more than one week after the house had 209 00:13:59.039 --> 00:14:03.320 been vacated and changed significantly due to a homicide investigation. 210 00:14:04.399 --> 00:14:07.799 He simply counted out loud upon entering rooms. This is 211 00:14:07.840 --> 00:14:11.159 a far cry from what the state alleges occurred. Additionally, 212 00:14:11.240 --> 00:14:15.080 mister Coberger attempted to learn more about the experiment through discovery. 213 00:14:15.399 --> 00:14:18.200 He saught such things as recordings or photographs of the 214 00:14:18.200 --> 00:14:21.440 time to run, or written notes taken and documented during 215 00:14:21.440 --> 00:14:26.200 the experiment. Nothing was provided in discovery. The prosecution stated 216 00:14:26.200 --> 00:14:29.440 that those items did not exist. Finally, the court should 217 00:14:29.440 --> 00:14:34.159 exclude this testimony because it violates mister Coberger's do rights process. 218 00:14:34.480 --> 00:14:37.120 The house has been torn down. The defense cannot now 219 00:14:37.159 --> 00:14:42.200 effectively robut this inflammatory and minimally relevant testimony. And to 220 00:14:42.200 --> 00:14:45.159 interject real quick, let's be very clear that the defense 221 00:14:45.279 --> 00:14:47.960 was a okay with this house getting torn down. And 222 00:14:48.039 --> 00:14:51.000 if you recall, this is the exact reason why I 223 00:14:51.039 --> 00:14:53.320 didn't want this place to get torn down. I knew 224 00:14:53.320 --> 00:14:55.200 the defense was going to try and make something of it. 225 00:14:56.240 --> 00:15:01.240 And here we are. Gary Dawson Ebert was disclosed for 226 00:15:01.279 --> 00:15:03.799 the first time in the States rebuttal experts. He is 227 00:15:03.840 --> 00:15:08.159 a toxicology expert. Mister Kolberger did not disclose any expert 228 00:15:08.440 --> 00:15:12.600 relating to toxicology. This expert is not a rebuttal expert 229 00:15:12.799 --> 00:15:16.879 and should be excluded from trial. David Middleman, this expert 230 00:15:16.960 --> 00:15:20.960 was disclosed as a rebuttal expert relating Diegg matters. This 231 00:15:21.039 --> 00:15:23.879 expert is addressed in a separate motion see emotion in 232 00:15:23.960 --> 00:15:30.279 Lemonae number twelve two. It is in the interest of fairness, justice, 233 00:15:30.279 --> 00:15:35.799 and judicial economy to exclude the listed experts. Lake disclosed 234 00:15:35.799 --> 00:15:39.519 expert opinions do not allow the defense sufficient opportunity to 235 00:15:39.559 --> 00:15:43.240 conduct the follow up investigation necessary and put the defense 236 00:15:43.240 --> 00:15:47.320 at a significant disadvantage. The state is turned over numerous 237 00:15:47.320 --> 00:15:52.399 generic responses identifying expert names, but only vaguely describing the 238 00:15:52.440 --> 00:15:56.879 subject matter that they will testify too. The disclosures do 239 00:15:56.919 --> 00:16:00.480 not identify the content of the anticipated testimony, nor the 240 00:16:00.519 --> 00:16:03.759 documents or evidence that the expert relied on to reach 241 00:16:03.840 --> 00:16:08.279 that conclusion. As federal courts applying the analog Federal criminal Rule, 242 00:16:08.320 --> 00:16:11.279 if held, a mere list of topics or general subject 243 00:16:11.360 --> 00:16:15.000 matter about which an expert witness may testify is not 244 00:16:15.039 --> 00:16:17.919 a discovery or response that complies with the rule. State 245 00:16:18.039 --> 00:16:20.679 versus more In one fifty eight Idaho. Six twenty two, 246 00:16:21.279 --> 00:16:23.840 six twenty six, three forty nine p. Dot three d 247 00:16:24.320 --> 00:16:29.960 twelve thirteen twelve, seventeen, twenty fifteen. The disclosure rules are 248 00:16:30.000 --> 00:16:33.320 not simply for case management purposes, but fundamental to a 249 00:16:33.320 --> 00:16:36.919 defendant's right to a fair trial. The rules are designed 250 00:16:36.919 --> 00:16:41.399 to promote fairness and candor, facilitate fair and expedient pre 251 00:16:41.440 --> 00:16:45.600 trial fat gathering, and prevent surprise at trial. Edmunds versus Crainer, 252 00:16:45.720 --> 00:16:49.320 one forty two, Idaho. Eight sixty seven, eight seventy three 253 00:16:49.360 --> 00:16:53.039 through seventy eight, one thirty six, p. Three d. Three 254 00:16:53.120 --> 00:16:57.120 thirty eight, two thousand and six, discussing similar rules, applicable 255 00:16:57.159 --> 00:17:01.320 to civil cases. See also CMT ninety nine three Amendment 256 00:17:01.360 --> 00:17:05.160 to Federal rule a Criminal Procedure sixteen. The amendment requiring 257 00:17:05.160 --> 00:17:09.079 the disclosure of expert opinion testimony is intended to minimize 258 00:17:09.119 --> 00:17:13.519 surprise that often results from unexpected expert testimony, reduce the 259 00:17:13.559 --> 00:17:16.799 need for continuances, and provide the opponent with a fair 260 00:17:16.839 --> 00:17:20.960 opportunity to test the merit of the expert testimony through 261 00:17:21.039 --> 00:17:25.359 focused cross examination. These purposes are not accomplished by a 262 00:17:25.400 --> 00:17:30.039 generic discovery response of the type presented here. Other courts 263 00:17:30.079 --> 00:17:34.759 analyzing the analogous federal rules have explained why late disclosures 264 00:17:35.119 --> 00:17:38.319 are so prejudicial to the opposing party, even in the 265 00:17:38.359 --> 00:17:42.559 civil context in which constitutional protections are far fewer than 266 00:17:42.599 --> 00:17:47.920 those guaranteed to criminal defendants. For example, in Churchill versus Us, 267 00:17:48.240 --> 00:17:51.559 the trial court found that the exclusion of several expert 268 00:17:51.640 --> 00:17:55.559 witness testimonies when one party complied with the court's expert 269 00:17:55.640 --> 00:17:58.960 disclosure deadline and one party provided only the names of 270 00:17:58.960 --> 00:18:03.039 experts and fail to provide detail reports or opinions. Case 271 00:18:03.119 --> 00:18:06.880 number one zero nine CV zero one eight four to 272 00:18:07.000 --> 00:18:12.519 six February eighth, twenty eleven, the court found that simply 273 00:18:12.559 --> 00:18:15.440 reciting the names of the experts does not prevent surprise 274 00:18:15.519 --> 00:18:19.480 by the opponents id At eight, and specifically noted that 275 00:18:19.519 --> 00:18:22.680 prejudice that occurs when one party complies with the deadline 276 00:18:22.880 --> 00:18:25.039 and the other party does not, As in this case, 277 00:18:25.319 --> 00:18:28.240 the state's experts have had the benefit of being in 278 00:18:28.279 --> 00:18:31.640 a position to examine and robut the opinions set forth 279 00:18:31.920 --> 00:18:35.599 by the defendant experts in their initial reports. This is 280 00:18:35.640 --> 00:18:39.559 a significant litigation advantage. The party who failed to comply 281 00:18:39.680 --> 00:18:42.880 with the deadline set forth several reasons why the defense 282 00:18:42.960 --> 00:18:45.880 was not prejudiced, but the court observed that forcing the 283 00:18:45.880 --> 00:18:49.880 innocent party to complete everything necessary on an expedited timeline 284 00:18:50.279 --> 00:18:54.160 was inherently prejudicial to their case. Even assuming all the 285 00:18:54.200 --> 00:18:58.119 necessary investigation and preparation can be achieved in six weeks, 286 00:18:58.400 --> 00:19:01.319 an ambitious schedule to impose on a defendant. As the 287 00:19:01.319 --> 00:19:03.920 innocent party, there would be in sufficient time for the 288 00:19:03.960 --> 00:19:07.880 court to hear and decide non dispositive motions related to 289 00:19:07.920 --> 00:19:11.960 expert discovery before the dispositive motion filings deadline less than 290 00:19:11.960 --> 00:19:15.599 one month later, on April twelfth, twenty eleven, Document number 291 00:19:15.599 --> 00:19:19.359 twenty five. Thus, the cascade of time extensions will affect 292 00:19:19.400 --> 00:19:23.319 the deadlines set four dispositive motions. The pre trial conference 293 00:19:23.359 --> 00:19:27.599 is scheduled for July sixth, twenty eleven, and ultimately the trial, 294 00:19:27.759 --> 00:19:32.599 which is currently scheduled for August twelfth, twenty eleven. The 295 00:19:32.680 --> 00:19:35.359 Court then noted the importance of parties complying with the 296 00:19:35.400 --> 00:19:39.000 scheduling order in good faith. Plaintiff's assumption that six months 297 00:19:39.000 --> 00:19:42.279 is sufficient time to revamp the scheduling order in this 298 00:19:42.440 --> 00:19:45.680 case to timely precede the trial is mistaken and shows 299 00:19:45.680 --> 00:19:49.240 a fundamental misunderstanding of the purpose of the Court's scheduling orders. 300 00:19:50.039 --> 00:19:53.519 The dates were not haphazardly selected or unrelated to the 301 00:19:53.559 --> 00:19:57.319 needs of the parties or the court. Instead, the scheduling 302 00:19:57.400 --> 00:20:00.480 order represented the best estimate of the Court and Council 303 00:20:00.759 --> 00:20:03.519 as to the agenda most suitable to dispose of this case. 304 00:20:04.359 --> 00:20:07.000 As the Ninth Circuit is made clear, disruption to the 305 00:20:07.039 --> 00:20:10.559 schedule of the Court and other parties is not harmless. 306 00:20:12.640 --> 00:20:15.480 In these days of heavy case loads, trial courts routinely 307 00:20:15.519 --> 00:20:19.240 set schedules and established deadlines to foster the efficient treatment 308 00:20:19.440 --> 00:20:23.680 and resolution of cases Idea ten sixty. As the torrent 309 00:20:23.720 --> 00:20:26.960 of civil and criminal cases unleashed in recent years has 310 00:20:27.039 --> 00:20:30.839 threatened to inundate the federal courts. Deliverance has been sought 311 00:20:30.880 --> 00:20:34.960 in the use of calendar management techniques. Rule sixteen is 312 00:20:35.000 --> 00:20:40.279 an important component of those techniques. Johnson versus Mammoth Recreations Incorporated. 313 00:20:40.640 --> 00:20:44.839 Nine seven five f dot two D. Thus, a scheduling 314 00:20:44.920 --> 00:20:47.880 order is not a frivolous piece of paper idly entered, 315 00:20:47.920 --> 00:20:52.319 which can be cavalierly disregarded by counsel without peril. Parties 316 00:20:52.400 --> 00:20:55.480 must understand that they will pay a price for failure 317 00:20:55.519 --> 00:20:58.680 to comply strictly with scheduling orders, and that failure to 318 00:20:58.759 --> 00:21:02.480 do so may properly supports severest sanctions and exclusions of 319 00:21:02.519 --> 00:21:08.759 evidence see Albert Disino Construction versus Aspen Insurance UK Limited, 320 00:21:09.680 --> 00:21:14.200 twenty twenty, excluding witnesses. Because the report was not provided 321 00:21:14.279 --> 00:21:17.279 until almost three months after the deadline had passed to 322 00:21:17.319 --> 00:21:20.279 appriving the opposing party of time it could have used 323 00:21:20.279 --> 00:21:23.359 to prepare accordingly and provide the disclosing party with a 324 00:21:23.400 --> 00:21:29.000 litigation advantage. State vers Martinez, one thirty seven Idaho eight four, 325 00:21:29.279 --> 00:21:32.559 two thousand and two. In Taylor versus Illinois, the United 326 00:21:32.599 --> 00:21:35.960 States Supreme Court stated that when the omission was wilful 327 00:21:36.200 --> 00:21:39.519 and motivated by a desire to obtain a tactical advantage 328 00:21:39.880 --> 00:21:43.119 that would minimize the effectiveness of cross examination and the 329 00:21:43.160 --> 00:21:47.279 ability to adduce rebuttal evidence. It would be entirely consistent 330 00:21:47.319 --> 00:21:50.519 with the purposes of the compulsory process clause to exclude 331 00:21:50.519 --> 00:21:54.759 the witness testimony. The same analysis is applicable here and 332 00:21:54.880 --> 00:21:58.519 carries even more force. Mister Colberger is a capital defendant 333 00:21:58.559 --> 00:22:00.839 who is entitled to his day in course or without 334 00:22:01.000 --> 00:22:04.799 undue delay by the prosecution. He's entitled to a heightened 335 00:22:04.799 --> 00:22:10.319 standard of reliability because prosecutors are seeking his execution. Prejudice 336 00:22:10.359 --> 00:22:13.079 is magnified in a criminal case when the state has 337 00:22:13.079 --> 00:22:16.759 the advantage of the defendant's expert disclosures in drafting their 338 00:22:16.799 --> 00:22:20.759 initial expert opinions. The state has the resources of dozens, 339 00:22:20.799 --> 00:22:23.960 if not hundreds of people working on its behalf from 340 00:22:24.039 --> 00:22:27.440 various state and federal agencies. It has the advantage of 341 00:22:27.480 --> 00:22:31.319 technology that's available only to law enforcement agencies and not 342 00:22:31.359 --> 00:22:34.920 to the defense. It's bringing the full resources to the 343 00:22:34.960 --> 00:22:38.519 state of Idaho to bear alongside assistance from the federal government. 344 00:22:38.960 --> 00:22:42.640 While mister Coberger has a defense team consisting of three attorneys, 345 00:22:42.720 --> 00:22:47.000 one investigator, and one mitigation specialist, who must now not 346 00:22:47.079 --> 00:22:49.839 only review all of the state's evidence, but conduct an 347 00:22:49.880 --> 00:22:53.839 independent investigation into both the circumstances of the crime and 348 00:22:53.880 --> 00:22:58.160 into mister Colberger's entire life story. The pre existing resource 349 00:22:58.200 --> 00:23:01.559 disparity must be taken into account when assessing the additional 350 00:23:01.599 --> 00:23:05.720 tactical advantage that the state is improperly obtained. Notably, the 351 00:23:05.759 --> 00:23:08.640 state did not seek modification of the scheduling order to 352 00:23:08.720 --> 00:23:11.839 allow for a later disclosure deadline, which would have equally 353 00:23:11.880 --> 00:23:14.240 applied to the defense and would not have given the 354 00:23:14.279 --> 00:23:18.559 prosecution a tactical advantage. It's fundamentally unfair for the state 355 00:23:18.599 --> 00:23:22.000 to shirk the court's order and reap the tactical advantage 356 00:23:22.000 --> 00:23:25.279 of being able to review the defense expert opinions before 357 00:23:25.319 --> 00:23:29.079 making their initial disclosures. In addition to the already existing 358 00:23:29.119 --> 00:23:33.519 advantage to resources, the court should exclude the listed expert 359 00:23:33.680 --> 00:23:37.160 reports and evidence listed above and preclude the death penalty 360 00:23:37.160 --> 00:23:39.599 at trial in order to cure some measure of the 361 00:23:39.640 --> 00:23:44.839 prejudice to mister Coberger. This document was dated February twenty fourth, 362 00:23:45.000 --> 00:23:48.200 twenty twenty five, and it was signed by Anne Taylor, 363 00:23:50.200 --> 00:23:53.519 all of The information along with my contact information can 364 00:23:53.559 --> 00:23:57.200 be found in the description box. What's up everyone, and 365 00:23:57.319 --> 00:24:01.000 welcome back to the program. In this we're headed back 366 00:24:01.079 --> 00:24:03.279 up to Moscow and we're going to take a look 367 00:24:03.319 --> 00:24:06.440 at a few motions that were filed in Lemonae by 368 00:24:06.480 --> 00:24:09.359 the defense, and all of these motions have to do 369 00:24:09.519 --> 00:24:14.920 with inflammatory evidence. Case number CR zero one, DASH two four, 370 00:24:15.079 --> 00:24:18.440 DASH three one sixty sixty five, State of Idaho, Plaintiff 371 00:24:18.759 --> 00:24:24.359 first Brian C. Colberger, the defendant motion in Lemonae number one, 372 00:24:24.480 --> 00:24:28.799 Inflammatory evidence comes now Brian C. Colberger buying through his 373 00:24:28.920 --> 00:24:31.640 attorneys of record, and hereby moves the Court for an 374 00:24:31.759 --> 00:24:38.519 order preventing the prosecution from introducing irrelevant and unfairly prejudicial photographs, testimony, 375 00:24:38.720 --> 00:24:41.240 and other exhibits in violation of his right to a 376 00:24:41.240 --> 00:24:45.039 fair trial, protected through the fifth, sixth, and fourteenth Amendments 377 00:24:45.240 --> 00:24:49.079 of the United States Constitution and Section one, Article thirteen 378 00:24:49.400 --> 00:24:53.839 of the Idaho Constitution. Such rights are protected through application 379 00:24:53.920 --> 00:24:57.839 of Idaho criminal rules and Idaho rules of evidence. Mister 380 00:24:57.880 --> 00:25:01.960 Colberger respectfully requests this court order the State to not 381 00:25:02.039 --> 00:25:05.680 try the case through eliciting testimony and other evidence that 382 00:25:05.839 --> 00:25:10.119 is exceptionally inflammatory presenting the case in an emotional and 383 00:25:10.240 --> 00:25:15.160 inflammatory way is unfairly prejudicial. Any probitive value is less 384 00:25:15.200 --> 00:25:19.039 than the danger. Additionally, the prosecution should not present the 385 00:25:19.079 --> 00:25:22.599 same information in a variety of ways, which is misleading 386 00:25:22.960 --> 00:25:27.160 or accumulative and a waste of time. IRI four three states, 387 00:25:27.440 --> 00:25:31.000 although relevant evidence may be excluded if its probitive value 388 00:25:31.039 --> 00:25:35.079 is substantially outweighed by the danger of unfair prejudice, confusion 389 00:25:35.119 --> 00:25:38.920 of the issues, or misleading the jury, or by considerations 390 00:25:38.920 --> 00:25:42.839 of undue delay, waste of time, or needless presentation of 391 00:25:42.960 --> 00:25:48.119 cumulative evidence. The case contains over sixty eight terabytes of data. 392 00:25:48.440 --> 00:25:52.359 This data contains thousands of photographs, many depict roughly the 393 00:25:52.400 --> 00:25:55.839 same content. There are photographs that depict the deceased as 394 00:25:55.880 --> 00:26:00.200 well as the same location without the deceased. Multiple office 395 00:26:00.359 --> 00:26:05.039 took photographs of the same areas. Additionally, there are many 396 00:26:05.039 --> 00:26:09.000 hours of body worn camera footage. Body worn footage depicts 397 00:26:09.000 --> 00:26:12.000 the officers moving throughout the house. There are hundreds of 398 00:26:12.000 --> 00:26:16.079 photographs of autopsy proceedings. In addition to this evidence, over 399 00:26:16.480 --> 00:26:20.279 one hundred officers and investigators have been involved in the case, 400 00:26:20.480 --> 00:26:24.200 and hundreds of people that have been interviewed. Mister Kolberger 401 00:26:24.279 --> 00:26:28.079