What went Bryan Kohberger’s way – and what didn’t – at evidence motions hearing
Bryan Kohberger’s defense struggled with prosecutors over what evidence should and shouldn’t be allowed in his upcoming quadruple murder trial at a full-day hearing in front of Judge Steven Hippler in Boise on Wednesday.
Kohberger, 30, faces four charges of first-degree murder in the deaths of Madison Mogen, 21, Kaylee Goncalves, 21, Xana Kernodle, 20, and Ethan Chapin, 20. He also faces a felony burglary count.
Hippler decided some motions from the bench but said he would announce other orders later in writing – including his findings on defense motions to strike the death penalty as a potential punishment due to Kohberger’s diagnosis of autism and defense claims the prosecutors have missed key discovery deadlines.
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Defense attorney Anne Taylor cited the recent Lori Vallow case, in which the court threw out the death penalty over missed deadlines. Kohberger, however, has waived his right to a speedy trial, and Hippler asked Taylor why she hadn’t raised the issue months ago or requested more resources, like a half-dozen additional paralegals to help her go through discovery.
Deputy Latah County Prosecutor Ashley Jennings also flat out denied Taylor’s accusations that prosecutors were slow-walking discovery and said everything the defense has asked for has been provided, a point that Taylor conceded in front of the judge.
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[It’s] all incriminating evidence, that’s why the state is offering it.
— Bill Thompson, Latah County Prosecuting Attorney
“This motion is not about withheld discovery,” she said. It was instead about a vast amount of data, dozens of terabytes, that she said will take years to go through. Hippler told her he expects most of it is irrelevant surveillance video that doesn’t need to be gone through, but he said he would likely require the prosecution to certify that it has disclosed all potentially exculpatory evidence that it is aware of and that the defense has not already flagged.
He said he would issue a written order later.
After arguments over Kohberger’s alibi, which prosecutors say cannot be corroborated by anyone other than the defendant himself, the judge and both sides appeared to agree that defense expert Sy Ray could testify about Kohberger’s whereabouts at the time his phone was shut off, more than an hour before the murders. But Latah County Prosecuting Attorney Bill Thompson made clear that is not an alibi.
“Who is gonna say he was out driving around looking at the stars?” Hippler asked Taylor.
She said her client has a right to remain silent.
“The question is whether you have a witness who is going to testify to that,” Hippler said.
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Hippler partially agreed to a defense motion to block prosecutors from using the words “murderer,” “psychopath” and “sociopath” in the trial, but noted that what the defense had asked for amounted to issuing “an order that says the state shall not commit prosecutorial misconduct.”
He said he expected the rules to be followed, that the term murderer could potentially be used during closing arguments, and that the words psycho- and sociopath could not be used unless an expert evaluation determined they accurately apply to Kohberger, something that has not happened as of Thursday.
As for “inflammatory evidence” that the defense wants kept out of trial, like overuse of gruesome crime scene photos, Hippler said the murders were “brutal and horrific” and he expected the evidence to reflect that.
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In one key moment, Taylor claimed that the defense had uncovered a new lead regarding a potential alternate suspect and was investigating. In another, she said there are a hundred hours of interviews with people who knew Kohberger from Washington State University – and many of them had “unkind things to say about him.”
He was studying for a Ph.D. in criminology there. The campus is about 10 miles from the University of Idaho crime scene.
Prosecutors revealed that they do not expect any of the inconclusive DNA samples under Mogen’s fingernails to belong to Kohberger – because they believe the attacker wore clothes to sufficiently cover himself up. The defense sought unsuccessfully to have a 2020 college essay Kohberger wrote about crime scene handling for DeSales University, where he studied for a master’s degree in criminal justice, excluded from the trial.
Judge Hippler also took issue with a defense expert witness who he said accused prosecutors of severe misconduct involving discovery materials regarding Kohberger’s phone tracking records without evidence.
“I don’t want theatrics,” he told Kohberger’s defense. “I don’t want accusations that aren’t supported.”
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At issue are timing advance records, detailed location data from a phone that is only preserved for seven days. The prosecution’s initial search warrant sought this information in November. Kohberger wasn’t identified as a suspect until Dec. 19. Jennings said she did not have the records. Hippler asked Taylor what evidence she had that they even exist.
The hearing touched on other issues, such as whether Kohberger’s immediate family has a right to courtroom seating. Prosecutors noted that some relatives will be on the witness list, and as such, shouldn’t be allowed to observe testimony in the case prior to taking the stand themselves.
While Kohberger’s defense attorney Elisa Massoth said the family has “no interest in helping” the prosecution and predicted that prosecutors would only call one relative, “at best,” Jennings revealed that prosecutors intend to call “a few.”
The defense wanted the 911 audio blocked from being played before the jury. Hippler said he would likely allow it but redact some statements that could be considered hearsay. Similarly, he said he would consider redacting portions of a traffic stop in which Kohberger had a back-and-forth with the officer in the months before the murders. Prosecutors said they intended to use it to show his ownership of the white Hyundai Elantra.
Massoth took issue with referring to Kohberger’s car as the suspect vehicle.
“You don’t get to, and I don’t get to, tell the state how to try their case unless they’re violating the rules of evidence,” Hippler said.
Hippler appeared unsympathetic to the defense’s opposition to including Kohberger’s Amazon records, which show the purchase of a Ka-Bar knife and sheath set before the murders as well as searching the app for the same items after the murders.
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“Maybe I’m completely out to lunch, but as I understand it, to buy something on Amazon, you gotta put it in your shopping cart and hit purchase,” the judge said.
Hippler said he would take a defense motion to block surviving roommate “DM” from using the phrase “bushy eyebrows” during her testimony. Taylor also revealed that in addition to DM’s text messages and phone history that were released last month, the roommate’s phone data shows she was also editing photos, saving new contacts, using social media and “a whole lot more.”
Hippler said that while older adults may pick up the phone and call someone, younger people are just as likely to reach out over social media.
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“I’ll be interested to hear the testimony of the two young ladies,” he said, referring to DM and the other surviving roommate, identified in court documents as BF.
Kohberger could face the death penalty if convicted, unless Hippler rules in his favor on one of the motions to strike it. A judge entered not guilty pleas on his behalf in May 2023.
The trial is expected to begin on Aug. 11.