WEBVTT 1 00:00:00.200 --> 00:00:04.400 What's up, everyone, and welcome back to the program. In 2 00:00:04.440 --> 00:00:08.439 this episode, we're gonna dive into Brian Kohberger's motion to 3 00:00:08.560 --> 00:00:12.960 dismiss the indictment. And this is a pretty long document, 4 00:00:13.480 --> 00:00:15.720 so we're gonna go through it and we're going to 5 00:00:15.800 --> 00:00:18.760 see what kind of headway we can make before I 6 00:00:18.839 --> 00:00:21.640 decide if I'm gonna split it into two episodes or not. 7 00:00:22.320 --> 00:00:26.199 So let's dive in and let's all be surprised together 8 00:00:26.519 --> 00:00:31.120 with what we find. Case number c R twenty nine 9 00:00:31.359 --> 00:00:36.359 DASH twenty two DASH zero zero zero two eight zero five. 10 00:00:37.119 --> 00:00:40.640 Motion to dismiss indictment on grounds of error in grand 11 00:00:40.719 --> 00:00:46.119 jury instructions or in the alternative remand for preliminary hearing, 12 00:00:47.240 --> 00:00:51.560 State of Idaho. Plaintiff versus Brian C. Coburger. The defendant 13 00:00:52.240 --> 00:00:56.600 comes now Brian C. Coberger buy and, through their attorney, 14 00:00:56.960 --> 00:01:02.200 Jay Weston Logsden, Chief Deputy of Litigation, and hereby moves 15 00:01:02.320 --> 00:01:06.319 this Honorable Court for an order either dismissing the indictment 16 00:01:06.480 --> 00:01:09.719 in this matter, or to treat it as a presentment 17 00:01:10.040 --> 00:01:14.560 and remand for a preliminary hearing before a magistrate. This 18 00:01:14.760 --> 00:01:17.480 motion is made on the grounds that the grand jury 19 00:01:17.560 --> 00:01:21.480 was misled as to the standard of proof required for 20 00:01:21.599 --> 00:01:28.959 an indictment. Issues number one. The Idaho Constitution Article one, 21 00:01:29.120 --> 00:01:34.040 Section eight and I see Section nineteen Dash eleven oh 22 00:01:34.120 --> 00:01:37.359 seven set the standard of proof for a grand jury 23 00:01:37.760 --> 00:01:41.560 at beyond a reasonable doubt based on the plain language 24 00:01:41.599 --> 00:01:46.799 of the statute. A. The legislative history of I dot 25 00:01:46.840 --> 00:01:51.400 c nineteen Dash eleven O seven also supports a beyond 26 00:01:51.439 --> 00:01:56.640 a reasonable doubt standard. B. The Idaho Supreme Court cannot 27 00:01:56.640 --> 00:02:02.239 adjust the standard of proof as it is substantive. Right two. 28 00:02:02.519 --> 00:02:05.920 The failure to properly instruct a grand jury as to 29 00:02:05.959 --> 00:02:09.520 the standard of proof is grounds for a dismissal of 30 00:02:09.560 --> 00:02:15.360 the indictment. A. The grand jury was erroneously instructed with 31 00:02:15.479 --> 00:02:19.680 the standard required for a presentment. Thus this court could 32 00:02:19.680 --> 00:02:25.319 treat the indictment as a presentment. The argument one. The 33 00:02:25.319 --> 00:02:29.800 Idaho Constitution Article one, Section eight and I dot C 34 00:02:30.240 --> 00:02:33.439 Section nineteen Dash eleven oh seven set the standard of 35 00:02:33.479 --> 00:02:37.439 proof for a grand jury at beyond a reasonable doubt. 36 00:02:38.080 --> 00:02:42.159 Pursuant to I dot se Section nineteen Dash eleven oh seven, 37 00:02:42.800 --> 00:02:45.840 the grand jury ought to find an indictment when all 38 00:02:45.840 --> 00:02:50.960 the evidence before them taken together. If unexplained or uncontradicted 39 00:02:51.240 --> 00:02:55.319 would in their judgment, weren't a conviction by a trial jury. 40 00:02:56.120 --> 00:02:59.680 The statute was in existence at the time the Idaho 41 00:02:59.680 --> 00:03:05.800 cons Institution was adopted Idaho Revised Statute Section seventy six 42 00:03:05.879 --> 00:03:10.039 thirty six, eighteen eighty seven, previously Criminal Practice Section two 43 00:03:10.280 --> 00:03:15.560 eight eighteen sixty four. When construing the Idaho Constitution, the 44 00:03:15.639 --> 00:03:19.520 primary object is to determine the intent of the framers 45 00:03:19.919 --> 00:03:23.680 State vers Clark, one sixty five, Idaho, three ninety three, 46 00:03:23.879 --> 00:03:29.520 three ninety seven, twenty nineteen. Provisions of the Idaho Constitution 47 00:03:29.960 --> 00:03:33.120 must be construed in light of the law prior to 48 00:03:33.159 --> 00:03:37.479 their adoption. State versus Green, one fifty eight Idaho eight 49 00:03:37.520 --> 00:03:43.080 eighty four, eight eighty seven, twenty fifteen. Even Idaho's Constitution 50 00:03:43.439 --> 00:03:48.919 reflects this view. Idaho Constitution, Article twenty one, Section two. 51 00:03:49.360 --> 00:03:52.400 All laws now in force in the territory of Idaho 52 00:03:52.719 --> 00:03:56.680 which are not repugnant to this Constitution shall remain in force. 53 00:03:57.680 --> 00:04:00.759 In Clark, our Supreme Court found the state sta in 54 00:04:00.879 --> 00:04:04.560 force at the time our Constitution was ratified to be 55 00:04:04.639 --> 00:04:10.039 controlling in its interpretation of Article one, Section seventeen. Clark 56 00:04:10.400 --> 00:04:15.280 one sixty five Idaho three ninety three. In State versus Matthews, 57 00:04:15.319 --> 00:04:18.959 one twenty nine, Idaho eight sixty five, nineteen ninety seven, 58 00:04:19.680 --> 00:04:23.160 the Court considered the issue of whether search warrants needed 59 00:04:23.199 --> 00:04:26.560 to be signed in order to be valid. The Court 60 00:04:26.639 --> 00:04:29.680 found that warrants do need to be signed, or else 61 00:04:29.720 --> 00:04:34.120 the search pursuant to such a warrant will violate Article one, 62 00:04:34.879 --> 00:04:38.879 Section seventeen of the Constitution. The court arrived at this 63 00:04:38.959 --> 00:04:43.360 conclusion despite the fact that Article one seventeen is completely 64 00:04:43.439 --> 00:04:47.879 silent regarding whether a warrant needs a signature. The reason 65 00:04:47.920 --> 00:04:51.240 the Court was able to find the constitutional violation in 66 00:04:51.319 --> 00:04:55.120 this case was by acknowledging that the statutes which require 67 00:04:55.160 --> 00:04:58.959 a signature I dot c. Section nineteen forty four oh one, 68 00:04:59.199 --> 00:05:02.000 forty four her sive six, and forty four oh seven 69 00:05:02.480 --> 00:05:07.319 pre date the Constitution of the State of Idaho Idaho 70 00:05:07.439 --> 00:05:11.279 at eight sixty nine. Because these statutes which require a 71 00:05:11.319 --> 00:05:16.040 signature on warrants predated the Idaho Constitution, they create a 72 00:05:16.040 --> 00:05:20.399 substantive right which existed prior to the adoption of this 73 00:05:20.480 --> 00:05:25.879 state's constitution. In State verse Rasch, nineteen ninety nine, Idaho 74 00:05:26.000 --> 00:05:30.040 five eighty six, nineteen seventy eight, the Supreme Court found 75 00:05:30.240 --> 00:05:34.399 a defendant was entitled to constitutional relief for a violation 76 00:05:34.800 --> 00:05:38.519 of I dot C. Section nineteen six eleven Knock and announce, 77 00:05:38.920 --> 00:05:42.759 after finding the rights contained in the statute were long 78 00:05:42.839 --> 00:05:47.160 standing at common law and deeply rooted in our heritage 79 00:05:47.600 --> 00:05:51.360 Rausch at five ninety three. The Rausch Court was able 80 00:05:51.399 --> 00:05:54.560 to trace this deeply rooted heritage all the way back 81 00:05:54.800 --> 00:05:59.160 to sixteen oh three. Thus, whatever this language means, it 82 00:05:59.240 --> 00:06:03.199 must color this Court's interpretation of Article I, Section eight. 83 00:06:05.319 --> 00:06:08.959 That section states, no person shall be held to answer 84 00:06:09.079 --> 00:06:13.120 for any felony or criminal offense of any grade, unless 85 00:06:13.160 --> 00:06:17.240 on presentment or indictment of a grand jury, or on 86 00:06:17.360 --> 00:06:21.680 information of the public prosecutor after a commitment by a magistrate, 87 00:06:22.079 --> 00:06:26.879 except in cases of impeachment, in cases cognizable by probate 88 00:06:26.959 --> 00:06:30.839 courts or by justices of the peace, and in cases 89 00:06:30.959 --> 00:06:34.720 arising in the militia, when in actual service, in time 90 00:06:34.800 --> 00:06:38.360 of war or a public danger, provided that a grand 91 00:06:38.480 --> 00:06:41.480 jury may be summoned upon the order of the district 92 00:06:41.519 --> 00:06:45.839 Court in the manner provided by law, and provided further 93 00:06:46.079 --> 00:06:49.480 that after a charge has been ignored by a grand jury, 94 00:06:49.759 --> 00:06:53.000 no person shall be held to answer or for trial 95 00:06:53.079 --> 00:06:57.480 therefore upon information of public prosecutor, if it were not 96 00:06:57.639 --> 00:07:01.000 clear from the text of Article I, Section eight, and 97 00:07:01.079 --> 00:07:04.720 the framer's general intent behind the section was to ensure 98 00:07:04.920 --> 00:07:08.120 that either a grand jury or a magistrate stood between 99 00:07:08.160 --> 00:07:12.920 the prosecutor and the accused. See Proceedings and Deaths of 100 00:07:12.959 --> 00:07:17.480 the Constitutional Convention of Idaho eighteen eighty nine, Volume one, 101 00:07:17.639 --> 00:07:23.040 two sixty Dash seventy nine I. W. Hart Educational, nineteen twelve. 102 00:07:23.519 --> 00:07:27.399 Here andafter preceding and debates. Thus, it stands to reason 103 00:07:27.639 --> 00:07:30.000 that the standard of proof and effect at the time 104 00:07:30.360 --> 00:07:35.079 of the adoption of the section was incorporated into it. 105 00:07:35.079 --> 00:07:37.959 It would be rather ineffective to create a buffer between 106 00:07:37.959 --> 00:07:43.279 the government and citizens that the government could change willy nilly. However, 107 00:07:43.560 --> 00:07:47.040 that does not provide much information as to what standard 108 00:07:47.079 --> 00:07:50.639 would warrant a conviction by a trial jury actually means. 109 00:07:51.240 --> 00:07:54.920 The interpretation of a statute must begin with the literal 110 00:07:55.000 --> 00:07:59.920 words of the statute. Those words must be given their plane, usual, 111 00:08:00.040 --> 00:08:04.000 u and ordinary meaning, and the statute must be construed 112 00:08:04.160 --> 00:08:07.680 as a whole. If the statute is not ambiguous, this 113 00:08:07.839 --> 00:08:11.519 court does not construe it, but simply follows the law 114 00:08:11.720 --> 00:08:15.879 as written. State versus Schwartz one thirty nine Idaho three 115 00:08:16.000 --> 00:08:20.560 sixty three, sixty two seventy nine, page three D seven, 116 00:08:20.639 --> 00:08:25.279 nineteen seven, twenty one, two thousand and three citations omitted. 117 00:08:26.079 --> 00:08:30.720 We have consistently held that where statutory language is unambiguous, 118 00:08:31.000 --> 00:08:36.159 legislative history and other extrinsic evidence should not be consulted 119 00:08:36.480 --> 00:08:40.399 for the purpose of altering the clearly expressed intent of 120 00:08:40.440 --> 00:08:44.720 the legislature. City of Sun Valley versus Sun Valley one 121 00:08:44.799 --> 00:08:48.759 twenty three, Idaho six sixty five, six sixty seven, eight 122 00:08:48.879 --> 00:08:53.000 fifty one, page two D nine sixty one nine sixty three, 123 00:08:53.440 --> 00:08:59.679 nineteen ninety three. Verska versus Saint Alphonsis Regional Medical Center 124 00:08:59.759 --> 00:09:04.159 one one fifty one, Idaho eight eighty nine, eight ninety three, 125 00:09:04.320 --> 00:09:10.000 twenty eleven. The plain text of the Idaho Code nineteen 126 00:09:10.080 --> 00:09:13.279 Dash eleven oh seven sets a standard of proof that 127 00:09:13.320 --> 00:09:16.919 would warrant a conviction at trial. The justification for a 128 00:09:16.960 --> 00:09:20.840 conviction at trial is and was, proof beyond a reasonable 129 00:09:20.919 --> 00:09:25.000 doubt I dot ce Section nineteen Dash twenty one oh four, 130 00:09:25.200 --> 00:09:30.799 twenty twenty two Idaho Revised Statute Section seven eight five 131 00:09:30.879 --> 00:09:35.039 eight eighteen eighty seven. If that were not enough, i 132 00:09:35.200 --> 00:09:39.000 dot Se Section nineteen Dash eleven oh seven is one 133 00:09:39.039 --> 00:09:42.559 of many laws that were adopted in eighteen sixty three 134 00:09:42.840 --> 00:09:46.919 and eighteen sixty four, copied verbatim from laws adopted in 135 00:09:47.000 --> 00:09:50.559 eighteen fifty one in the state of California. See State 136 00:09:50.919 --> 00:09:55.399 versus Edmondson one thirteen, Idaho two thirty two forty four 137 00:09:55.639 --> 00:10:02.360 two fifty nine, nineteen eighty seven Bistline j Dissenting, the 138 00:10:02.399 --> 00:10:06.879 Idaho Supreme Court has held. This Court has consistently held 139 00:10:07.080 --> 00:10:10.960 that a statute which is adopted from another jurisdiction will 140 00:10:11.000 --> 00:10:14.879 be presumed to be adopted with a prior construction placed 141 00:10:14.960 --> 00:10:20.200 upon it by the courts of such other jurisdictions. Odinwalt 142 00:10:20.240 --> 00:10:24.559 versus Zering one oh two, Idaho one five, nineteen eighty one, 143 00:10:24.559 --> 00:10:28.519 citing Nixon versus Triber one hundred, Idaho one ninety eight 144 00:10:28.559 --> 00:10:33.200 two hundred, nineteen seventy nine. State versus Miles ninety seven, 145 00:10:33.360 --> 00:10:38.639 Idaho three ninety six, nineteen seventy six, Dogget versus Electronics 146 00:10:38.639 --> 00:10:44.080 Corporation of America ninety three, Idaho twenty six, nineteen sixty nine. 147 00:10:44.720 --> 00:10:49.799 In People versus Tinder and Smith nineteen, California five thirty 148 00:10:49.879 --> 00:10:54.039 nine five forty one eighteen sixty two, the defendants were 149 00:10:54.039 --> 00:10:57.879 indicted for murder and arrested. They applied for bell, but 150 00:10:57.960 --> 00:11:01.759 they were denied. On A. Hay Babea's petition challenging the 151 00:11:01.799 --> 00:11:05.600 denial of bell, the California Court took time to discuss 152 00:11:05.639 --> 00:11:09.200 the legal standard required for the finding of an indictment 153 00:11:09.679 --> 00:11:13.399 Idaho at five pin forty three. The court found formally, 154 00:11:13.639 --> 00:11:17.759 an indictment was regarded as a mere accusation, which the 155 00:11:17.879 --> 00:11:21.759 grand jury ought to find if probable cause evidence were 156 00:11:22.240 --> 00:11:26.639 adduced in its support. But great authorities, says Chitty, have 157 00:11:26.799 --> 00:11:30.799 taken a more merciful view of the subject, and, considering 158 00:11:31.000 --> 00:11:34.480 the dangers of perjury, the anxiety of delay, and the 159 00:11:34.519 --> 00:11:38.440 misery of a prison, have argued that the grand inquest 160 00:11:38.840 --> 00:11:41.919 ought as far as the evidence before them goes, to 161 00:11:42.039 --> 00:11:45.639 be convinced of the guilt of the defendant. What was 162 00:11:45.799 --> 00:11:50.919 therefore anciently said, respecting petit treason may be applied to 163 00:11:51.039 --> 00:11:54.240 all other offenses, that since it is preferred in the 164 00:11:54.279 --> 00:11:57.559 absence of the prisoner, it ought to be supported by 165 00:11:57.600 --> 00:12:02.440 substantial testimonies one Criminal Law three eighteen eighteen twenty six. 166 00:12:03.600 --> 00:12:06.879 The more merciful view of the subject thus referred to 167 00:12:07.320 --> 00:12:11.639 is secured by statute. In this state. The Criminal Practice 168 00:12:11.720 --> 00:12:15.000 Act declares that the grand jury shall receive none but 169 00:12:15.159 --> 00:12:18.519 legal evidence and the best evidence, in degree to the 170 00:12:18.559 --> 00:12:23.320 exclusion of hearsay or secondary evidence Section two ten. And 171 00:12:23.360 --> 00:12:27.159 though not bound to hear evidence for the defendant, that is, 172 00:12:27.320 --> 00:12:30.120 that is their duty to weigh all the evidence submitted 173 00:12:30.159 --> 00:12:33.080 to them, and when they have reason to believe that 174 00:12:33.240 --> 00:12:36.639 other evidence within their reach will explain away the charge, 175 00:12:36.879 --> 00:12:41.159 they should order such evidence to be produced Section two eleven. 176 00:12:41.679 --> 00:12:44.279 And that they ought to find an indictment when all 177 00:12:44.320 --> 00:12:47.840 the evidence before them, taken together, is such as in 178 00:12:47.879 --> 00:12:52.720 their judgment, would if unexplained or uncontradicted, warrant a conviction 179 00:12:52.879 --> 00:12:56.639 by the trial jury section two twelve, And of course 180 00:12:56.960 --> 00:12:59.720 ought not to find an indictment when the evidence taken 181 00:12:59.759 --> 00:13:05.159 to again other if unexplained or uncontradicted, would not warrant 182 00:13:05.200 --> 00:13:09.240 such conviction. The indictment is then something more than a 183 00:13:09.320 --> 00:13:13.840 mere accusation based upon probable cause. It is an accusation 184 00:13:14.039 --> 00:13:18.360 based upon legal testimony of a direct and positive character, 185 00:13:18.679 --> 00:13:21.799 and is the concurring judgment of at least twelve of 186 00:13:21.840 --> 00:13:25.919 the grand jurors selected to inquire into all public offenses 187 00:13:25.960 --> 00:13:30.559 committed or trialable within their county, that upon the evidence 188 00:13:30.600 --> 00:13:35.039 presented to them, the defendant is guilty. Thus, the only 189 00:13:35.120 --> 00:13:38.360 case on point from the time this statute was adopted 190 00:13:38.639 --> 00:13:42.440 clearly states that the standard for finding an indictment is 191 00:13:42.519 --> 00:13:47.120 higher than the probable cause standard. In addition, other jurisdictions 192 00:13:47.320 --> 00:13:51.399 and legal treatises have recognized that the plain language amounts 193 00:13:51.440 --> 00:13:56.639 to more than probable cause. See Bash Halsey, Stuart Shields, Incorporated. 194 00:13:56.840 --> 00:14:00.840 First Tracy Collins, Bank and Trust Company, five point fifty 195 00:14:00.840 --> 00:14:05.720 eight F. Superior ten forty two, District of Utah, nineteen 196 00:14:05.759 --> 00:14:10.120 eighty three. State versus Lawler two twenty one, Wisconsin four 197 00:14:10.080 --> 00:14:15.519 to twenty three two sixty seven N dot W sixty seven, Wisconsin, 198 00:14:15.639 --> 00:14:21.279 nineteen thirty six. Y Kamisar w Lefayvre versus j. Israel 199 00:14:21.639 --> 00:14:25.720 Modern Criminal Procedure ten twenty five, N. Ten twenty six, 200 00:14:26.080 --> 00:14:30.200 end dot nine, fifth Edition, nineteen eighty The defense does not, 201 00:14:30.519 --> 00:14:33.919 by all this intend to bury the lead, but merely 202 00:14:34.039 --> 00:14:38.759 show that under the usual approach to statutory interpretation, there 203 00:14:38.799 --> 00:14:41.440 is no reasonable doubt as to what a grand jury 204 00:14:41.440 --> 00:14:46.080 should be instructed that said, the defense recognizes that the 205 00:14:46.080 --> 00:14:49.720 whole of modern jurisprudence on the issue is against it, 206 00:14:50.200 --> 00:14:54.600 as well as at least one founding father of this state. A. 207 00:14:55.320 --> 00:14:59.240 The legislative history of I dot Ce Section nineteen Dash 208 00:14:59.240 --> 00:15:03.320 eleven seven also supports a beyond a reasonable doubt standard. 209 00:15:04.039 --> 00:15:07.440 The history of this formulation shows that the abandonment of 210 00:15:07.519 --> 00:15:10.679 this standard and the retreat to common law probable cause 211 00:15:11.039 --> 00:15:14.799 has no basis in law to begin. The formulation first 212 00:15:14.799 --> 00:15:18.080 appears in the eighteen fifties in the Code of Criminal 213 00:15:18.080 --> 00:15:22.039 Procedure of the State of New York. This is best 214 00:15:22.080 --> 00:15:25.440 known as the New York Field Code and Criminal Procedure 215 00:15:25.720 --> 00:15:30.159 hereinafter Field and Code. The Idaho Supreme Court and the 216 00:15:30.279 --> 00:15:34.519 United States Supreme Court have acknowledged this state has retained 217 00:15:34.600 --> 00:15:38.440 language from the Field Code in its procedural statutes. See 218 00:15:38.480 --> 00:15:43.840 Gannett Company Incorporated. Versus Depascual four forty three US three 219 00:15:43.919 --> 00:15:48.720 sixty eight three ninety en Dot twenty three, nineteen seventy 220 00:15:48.840 --> 00:15:53.480 nine Col's Publication Company versus Magistrate Court of the First 221 00:15:53.480 --> 00:15:58.759 District of the State County of Cootney one eighteen IDAHOS 222 00:15:58.759 --> 00:16:03.720 seven fifty three seven fifty seven nineteen ninety. To understand 223 00:16:03.759 --> 00:16:06.399 why the Fueld Code broke with the common law, it 224 00:16:06.480 --> 00:16:09.159 helps to have some knowledge of the history of grand 225 00:16:09.240 --> 00:16:13.519 juries and the considerable concern about them occurring in the 226 00:16:13.600 --> 00:16:17.720 later half of the nineteenth century In England. The original 227 00:16:17.720 --> 00:16:21.440 criminal proceedings Circon nine seventy eight began with a group 228 00:16:21.480 --> 00:16:24.480 of twelve that went on to evolve into the grand 229 00:16:24.600 --> 00:16:29.399 Jury George Edwards. The grand Jury considered from a historical, 230 00:16:29.480 --> 00:16:33.159 political and legal standpoint, and the law and practice related 231 00:16:33.360 --> 00:16:37.519 Thereto two through six nineteen oh six, hereinafter grand jury. 232 00:16:38.360 --> 00:16:41.399 The alternative arrived with the Norman Conquest, in which the 233 00:16:41.480 --> 00:16:45.679 accuser could raise the hue and cry, and, if successful, 234 00:16:46.039 --> 00:16:49.320 force the accused to choose between a guilty plea or 235 00:16:50.039 --> 00:16:54.879 trial by combat Idaho at six, twelve thirteen. The Assize 236 00:16:54.919 --> 00:16:58.759 of Clarendon established for the first time in English history 237 00:16:59.000 --> 00:17:01.960 the ability to break the law and be prosecuted by 238 00:17:01.960 --> 00:17:06.599 the government. In eleven sixty six Idaho at seven. Even then, 239 00:17:06.839 --> 00:17:10.519 for a prosecution raised in court, the twelve had to 240 00:17:10.559 --> 00:17:14.519 agree they suspected the accused. The grand jury as a 241 00:17:14.559 --> 00:17:17.680 shield against a government run a muck first came about 242 00:17:17.839 --> 00:17:21.000 in sixteen eighty one in the cases of Stephen College 243 00:17:21.240 --> 00:17:25.039 and the Earl of Shaftesbury for high treason Brent Tomer 244 00:17:25.400 --> 00:17:28.799 ring around the grand jury informing jurors of the capital 245 00:17:28.839 --> 00:17:35.640 consequences of aggravating factors seventeen Definition j sixty one, sixty five, 246 00:17:35.920 --> 00:17:41.039 two thousand and four. See also John Langbeen The Origins 247 00:17:41.039 --> 00:17:44.680 of Adversary Criminal Trial forty five, two thousand and three. 248 00:17:45.119 --> 00:17:49.119 For the years sixteen sixty through the year of eighteen hundred, 249 00:17:49.839 --> 00:17:53.599 Betty found that the Surrey Grand Juries dismissed eleven and 250 00:17:53.599 --> 00:17:57.319 a half percent of the bills of indictments for property 251 00:17:57.359 --> 00:18:01.160 offenses punishable by death, and seven teen point three percent 252 00:18:01.440 --> 00:18:05.799 of those brought for non capital property offenses, fourteen point 253 00:18:05.880 --> 00:18:10.680 nine percent for murder, twenty seven point four percent for infanticide, 254 00:18:11.200 --> 00:18:14.759 twenty five point eight percent for wounding, forty four point 255 00:18:14.799 --> 00:18:19.160 four percent for rape. At the time of this country's founding, 256 00:18:19.559 --> 00:18:23.720 colonialists had knowledge of this history and experience with the 257 00:18:23.759 --> 00:18:27.400 power of grand juries to prevent government abuses, as well 258 00:18:27.440 --> 00:18:30.920 as experience with what is known as a preliminary hearing. 259 00:18:31.559 --> 00:18:35.440 More importantly, the colonies had experience with something that never 260 00:18:35.480 --> 00:18:39.880 took hold in England local public prosecutors see Joan E. 261 00:18:40.000 --> 00:18:45.119 Jacobi the American prosecutor in historical context the prosecutor in 262 00:18:45.160 --> 00:18:49.119 nineteen ninety seven. While the development of the magistrate's power 263 00:18:49.359 --> 00:18:52.920 to dismiss felonies after a prelim hearing in England is 264 00:18:52.960 --> 00:18:57.160 mostly lost in America, a number of historical writings shed 265 00:18:57.240 --> 00:19:01.039 light on what was known to those that adopted the constitution. 266 00:19:02.240 --> 00:19:06.000 There are, however, a few known exceptions to English procedure. 267 00:19:06.519 --> 00:19:10.799 In Massachusetts, the examination procedures seem to have permitted witnesses 268 00:19:11.000 --> 00:19:15.000 to be questioned in the presence of the accused. The 269 00:19:15.039 --> 00:19:18.799 early New Haven colony departed further from the English model 270 00:19:19.039 --> 00:19:23.359 than most colonies. Here, the justice, or more often the justices, 271 00:19:23.799 --> 00:19:28.000 were formally permitted to dismiss charges when they became convinced 272 00:19:28.160 --> 00:19:32.839 of the accused innocence. In Virginia County courts initially appear 273 00:19:33.079 --> 00:19:37.519 to have examined arrested suspects to determine whether the accused 274 00:19:37.640 --> 00:19:41.880 should be tried before the general court. In seventeen o five, 275 00:19:42.279 --> 00:19:46.559 a new institution, the Examining Court, was introduced. After a 276 00:19:46.599 --> 00:19:49.799 preliminary hearing before a Justice of the peace, the case 277 00:19:49.880 --> 00:19:53.400 was sent to a special examining court, where the accused 278 00:19:53.559 --> 00:19:57.359 was again questioned by several justices of the peace. Here 279 00:19:57.440 --> 00:20:00.920 the accused was entitled to require the sharp to summon 280 00:20:01.000 --> 00:20:05.400 witnesses on his behalf. Either the accused was released or 281 00:20:05.480 --> 00:20:08.599 the case went to the grand jury and eventually to 282 00:20:08.680 --> 00:20:13.200 a trial jury. Stake's handbook indicated that this new institution 283 00:20:13.799 --> 00:20:16.599 enlarged the means of coming at the truth of a 284 00:20:16.680 --> 00:20:21.240 supposed fact and gave the accused a third opportunity of acquittal. 285 00:20:21.960 --> 00:20:26.079 Such protections, designed for the liberty and quiet of the subject, 286 00:20:26.359 --> 00:20:29.759 were not to be boasted in any other part of 287 00:20:29.799 --> 00:20:32.440 the British dominion. All right, folks, we're going to wrap 288 00:20:32.559 --> 00:20:35.680 up part one here considering how much further we still 289 00:20:35.680 --> 00:20:38.400 have to go. We're on page eight right now, and 290 00:20:38.559 --> 00:20:41.519 there are twenty three pages. So we'll pick back up 291 00:20:41.680 --> 00:20:45.279 in the next episode where we left off. All of 292 00:20:45.319 --> 00:20:48.279 the information that goes with this episode can be found 293 00:20:48.599 --> 00:20:52.279 in the description box. What's up, everyone, and welcome back 294 00:20:52.279 --> 00:20:55.359 to the program. In this episode, we're gonna pick right 295 00:20:55.400 --> 00:20:59.519 back up with the motion to dismiss the indictment paperwork 296 00:20:59.759 --> 00:21:04.119 that was filed by Brian Coohberger's team Part two. The 297 00:21:04.200 --> 00:21:07.200 failure to properly instruct a grand jury as to the 298 00:21:07.279 --> 00:21:11.519 standard of proof is grounds for dismissal of the indictment. 299 00:21:12.319 --> 00:21:15.079 Having shown that the jury was provided with a wrong 300 00:21:15.160 --> 00:21:18.680 standard of proof, the next question is what is the remedy. 301 00:21:19.279 --> 00:21:23.680 The Field Code adopted a somewhat complex interplay of statutes 302 00:21:23.839 --> 00:21:28.359 permitting a defendant to challenge an indictment that Idaho maintains. 303 00:21:28.599 --> 00:21:33.559 For the most part, Idaho Code nineteen sixteen oh one 304 00:21:33.680 --> 00:21:38.440 provides grounds for setting aside indictment. The indictment must be 305 00:21:38.480 --> 00:21:41.200 set aside by the court in which the defendant is 306 00:21:41.319 --> 00:21:45.200 arraigned upon his motion in either of the following cases. 307 00:21:45.599 --> 00:21:49.680 One when it is not found, endorsed and presented as 308 00:21:49.759 --> 00:21:53.599 prescribed in this code. Two when the names of the 309 00:21:53.599 --> 00:21:57.960 witnesses examined before the grand jury or whose depositions may 310 00:21:58.000 --> 00:22:00.759 have been read before them, are not in at the 311 00:22:00.799 --> 00:22:05.680 foot of the indictment or endorsed thereon. Three when a 312 00:22:05.720 --> 00:22:09.119 person is permitted to present during the session of the 313 00:22:09.160 --> 00:22:12.640 grand jury, and when the charge embraced in the indictment 314 00:22:12.920 --> 00:22:17.680 is under consideration, except as provided in Chapter eleven of 315 00:22:17.759 --> 00:22:22.000 this title. Number four, when the defendant has not been 316 00:22:22.000 --> 00:22:25.440 held to answer before the finding of the indictment on 317 00:22:25.559 --> 00:22:28.960 any ground which would have been good ground for challenge, 318 00:22:29.279 --> 00:22:34.599 either to the panel or to any individual grandeur. Idaho 319 00:22:34.680 --> 00:22:40.200 Code Section nineteen twenty four oh eight provides impertinent part. 320 00:22:40.799 --> 00:22:44.680 A motion in arrest of judgment is an application on 321 00:22:44.799 --> 00:22:48.079 the part of the defendant that no judgment be rendered 322 00:22:48.240 --> 00:22:51.160 on a plea or a verdict of guilty, or on 323 00:22:51.200 --> 00:22:54.279 a verdict against the defendant on a plea of a 324 00:22:54.319 --> 00:22:58.759 former conviction or acquittal. It may be founded on any 325 00:22:58.799 --> 00:23:02.880 of the defects in the indictment that are grounds for demure, 326 00:23:03.240 --> 00:23:07.599 unless the objection to the indictment has been waived by 327 00:23:07.599 --> 00:23:11.440 a failure to demur, and must be made before or 328 00:23:11.559 --> 00:23:15.720 at the time the defendant is called for judgment. Neither 329 00:23:15.759 --> 00:23:19.039 of these statutes was intended to create a mechanism for 330 00:23:19.160 --> 00:23:22.519 challenging the instructions given to the jury. The Court of 331 00:23:22.559 --> 00:23:26.319 Appeals of New York found as much, but concluded that 332 00:23:26.400 --> 00:23:29.400 defendants could still move to quash a warrant where the 333 00:23:29.440 --> 00:23:33.839 proceedings intrude on their constitutional rights. See People Versus Glenn 334 00:23:34.240 --> 00:23:39.079 sixty six, any one, twelve one, fourteen, and fifteen New York, 335 00:23:39.160 --> 00:23:43.160 nineteen oh three. The court then found that a showing 336 00:23:43.440 --> 00:23:47.519 that an instruction was prejudicial may require an indictment to 337 00:23:47.599 --> 00:23:52.319 be quashed. Idaho Supreme Court had adopted this holding see Gasper, 338 00:23:52.480 --> 00:23:56.799 seventy four, Idaho. At three ninety six. So what prejudice 339 00:23:56.839 --> 00:24:01.039 results from telling a jury the wrong standard? Typically, courts 340 00:24:01.079 --> 00:24:03.960 give the jury a standard, and it is expected to 341 00:24:04.119 --> 00:24:08.240 follow it, even where attorneys may misstate that standard in 342 00:24:08.279 --> 00:24:11.920 their arguments. See Glenn sixty six and dot E at 343 00:24:11.920 --> 00:24:16.480 one fifteen, finding no prejudice from defective instruction in part 344 00:24:16.759 --> 00:24:21.359 because jury previously told proper standard. Unfortunately, that did not 345 00:24:21.480 --> 00:24:24.640 happen here. When a jury has been misled as to 346 00:24:24.680 --> 00:24:29.759 the standard to the defendant's detriment, courts find fundamental error 347 00:24:29.920 --> 00:24:32.799 because the error goes to the foundation of the case 348 00:24:33.079 --> 00:24:36.920 and takes away an essential right. See State versus Ericson 349 00:24:37.000 --> 00:24:40.640 one forty eight Idaho, six seventy nine, six eighty five 350 00:24:40.960 --> 00:24:47.519 Appeals Court twenty ten, citing State versus Rattlebaugh one twenty four, Idaho. 351 00:24:47.640 --> 00:24:51.559 Seven fifty eight seven sixty nine, nineteen ninety three. Because 352 00:24:51.599 --> 00:24:54.480 the grand jury in this matter was only informed of 353 00:24:54.519 --> 00:24:58.839 the improper standard, it was a fundamental error necessarily depriving 354 00:24:58.880 --> 00:25:04.880 mister Coleberger of an essential right. Fundamental error necessitates reversal or, 355 00:25:04.920 --> 00:25:09.599 in this case, dismissal of the indictment. Sullivan versus Louisiana, 356 00:25:09.720 --> 00:25:13.640 five oh eight US two seventy five two eighty nineteen 357 00:25:13.920 --> 00:25:18.839 ninety three, Part A. The grand jury was erroneously instructed 358 00:25:19.039 --> 00:25:22.799 with the standard required for a presentment. Thus this court 359 00:25:23.079 --> 00:25:26.920 could treat the indictment as a presentment. There is one 360 00:25:27.119 --> 00:25:31.119 final wrinkle in this error that is worth considering. As 361 00:25:31.200 --> 00:25:35.000 mentioned above, there is an Idaho a thing called a presentment. 362 00:25:35.440 --> 00:25:38.240 It does not appear from the authorities in Idaho that 363 00:25:38.279 --> 00:25:42.079 this thing is well understood. However, in the words of 364 00:25:42.119 --> 00:25:45.920 one justice, it is the only sort of accusation any 365 00:25:45.960 --> 00:25:50.960 grand jury in Idaho has ever produced. Edmondson one thirteen 366 00:25:51.119 --> 00:25:55.279 Idaho at two forty two Bistline Jade, dissenting for the 367 00:25:55.319 --> 00:25:59.000 information of the Court and the bar. A presentment is 368 00:25:59.079 --> 00:26:01.880 what are united, says State Supreme Court would call a 369 00:26:02.000 --> 00:26:07.319 term of art Us versus Hanson, Supreme Court, twenty twenty three, 370 00:26:07.400 --> 00:26:10.960 w L. Forty one thirty eight nine to ninety four 371 00:26:11.359 --> 00:26:15.720 at five end date twenty twenty three. Thus although it 372 00:26:15.799 --> 00:26:19.559 never receives definition in the Code, it has a definition 373 00:26:19.640 --> 00:26:22.680 that comes to us from the Field Code. The Field 374 00:26:22.720 --> 00:26:27.759 Commission explains the Commissioners have proposed two modes of proceeding 375 00:26:27.880 --> 00:26:31.319 upon the action of the grand jury. First that, where 376 00:26:31.400 --> 00:26:35.200 the defendant has been held to answer the charge and 377 00:26:35.400 --> 00:26:38.000 in no other case, the grand jury may, if they 378 00:26:38.039 --> 00:26:42.119 believe him guilty, find an indictment against them. Second that, if, 379 00:26:42.200 --> 00:26:46.559 upon investigation of a charge against him, whether originated by 380 00:26:46.599 --> 00:26:51.400 themselves or presented by another, they believe his is guilty 381 00:26:51.519 --> 00:26:55.599 of a public offense, they must proceed by presentment. The 382 00:26:55.640 --> 00:26:59.440 presentment is an informal statement by the grand jury representing 383 00:26:59.519 --> 00:27:03.160 that a public offense has been committed which is triable 384 00:27:03.319 --> 00:27:06.599 within the county, and that there is reasonable ground for 385 00:27:06.680 --> 00:27:10.640 believing the defendant has committed it Section two fifty six 386 00:27:10.960 --> 00:27:14.640 and to fifty seven. Upon the former, he is of 387 00:27:14.680 --> 00:27:17.680 course to be held for trial, but upon the latter 388 00:27:18.079 --> 00:27:21.759 he is only to be held for examination before a magistrate, 389 00:27:22.079 --> 00:27:25.519 in the same manner as if and information had been 390 00:27:25.559 --> 00:27:28.880 given to the magistrate in the first instance, and with 391 00:27:29.000 --> 00:27:34.400 the same opportunity for explanation or defense. These provisions, though 392 00:27:34.440 --> 00:27:38.000 new in practice, are in principle no innovations. In the 393 00:27:38.039 --> 00:27:43.039 Criminal Code recently adopted in Virginia, similar provision is contained 394 00:27:43.680 --> 00:27:47.079 Laws of Virginia eighteen forty eight, Page one forty five, 395 00:27:47.240 --> 00:27:50.920 Section sixteen, and it may be safely asserted that the 396 00:27:50.920 --> 00:27:54.960 principle contained in them is in consonance with the common 397 00:27:55.039 --> 00:27:59.400 law itself. In a late case in Pennsylvania, the office 398 00:27:59.400 --> 00:28:03.400 of a grand jury was stated by Judge King to 399 00:28:03.440 --> 00:28:07.519 be confined to the examination of such cases as were 400 00:28:07.559 --> 00:28:11.680 presented by the Attorney General after previous binding over by 401 00:28:11.720 --> 00:28:15.799