Is there a way out? Review of Idaho Four Motions in Limine - Part 2
We're looking at the defense's motions and what they mean as we prepare for Wednesday's hearing
In Part 1, we reviewed the State’s motions in limine - what new information we learned, what they tell us about the parties’ strategies toward the case, and what the outcomes are likely to be. Now let’s turn to what the defense is asking.
Strike the death penalty due to Bryan’s Autism Spectrum Disorder
The defense is arguing that because ASD is a disability that causes impairments that are functionally similar to intellectual disabilities, it should be unconstitutional to execute someone with ASD for the same reasons that the US Supreme Court has held that it is unconstitutional to execute someone with an intellectual disability. Disabilities in general are mitigating factors, not aggravating ones, but there is public negative bias towards ASD and ASD behaviors and there is a risk that the jury would actually regard it as aggravating instead of mitigating.
The State responds that ASD is not an intellectual disability and under the current case law, there is no other disability that precludes the death penalty. There is no national consensus against executing people with ASD, and other states have already said it’s fine to execute people with ASD. The State believes that categorically prohibiting the use of the death penalty against people with ASD is inappropriate and instead, it should be considered case-by-case in the penalty phase of the case.
My thoughts: The defense’s argument is novel and makes excellent comparisons between the standards the Supreme Court has already set and the impairments that result from ASD. But, because it’s an issue of first impression, it’s above Judge Hippler’s pay grade - he is extremely unlikely to decide this issue the way the defense wants him to because to do so would change the law, and that’s typically the role of higher courts who are more attuned to broad policy considerations.
The State’s argument that there is not an emerging national consensus against executing people with ASD is legally powerful and the defense’s silence on it is problematic. I have argued in several contexts that life without parole is unconstitutional under the Eighth Amendment, which applies the same legal standard, and in my brief I surveyed the law of every state in the country to show how the trend was moving towards the position I wanted the court to adopt (spoiler, they did not). Because the standard to show a practice is categorically cruel and unusual under the Eighth Amendment requires showing that it violates “evolving standards of decency,” you pretty much have to show that other places are starting to do things differently or you’re not likely to succeed.
On the fact side of this motion, the defense sure manages to make it sound like Bryan will present very badly in court. I didn’t see any indication of that when I was in the courtroom for several of the early hearings, but the defense is laying a lot of groundwork to prepare for the possibility that he comes across as remorseless, awkward, inappropriate and/or rude, and self-centered. At the same time, because it can be very difficult to represent people with rigid thinking who perseverate on their preferred topics, the fact that Bryan still appears to have an excellent relationship with his defense team speaks very highly of their patience and willingness to work with his impairments.
Prediction: Denied.
Strike the death penalty due to discovery violations
Invoking the prosecution of Lori Daybell, where late-produced discovery led the court to order that the State could not pursue the death penalty, the defense is arguing that the State’s discovery practices throughout the case have overwhelmed their ability to keep up and to prepare for trial. Because of the volume of information produced and the lack of organization of it, the defense contends it would take several years to get through all of it. They also argue the State has not complied with deadlines for disclosure and that asking for a continuance is not a fair remedy because Bryan is held in jail without bond until trial.
The State responds that it has complied with all of its discovery obligations and continued after the cutoff date as new information came in. The State argues that Daybell is dissimilar because that involved late production of specific evidence and here, the defense has not pointed to any late production that prejudices their ability to respond.
My thoughts: I sympathize with the defense’s position a lot. The stress of preparing for an important trial can be massive even when you’ve had time to read and digest and follow up on everything, so I can imagine how terrible it would feel to go to trial knowing that there could be something you’ve overlooked. The State’s production sounds extremely obnoxious - production of material in bulk PDFs with password protection that don’t allow modification is an organizational nightmare and I’d have probably just reverted to printing everything to paper as I went through it. But, the State hasn’t been found to be in violation of any of its discovery obligations and even if they were, exclusion of the evidence at issue would probably be the appropriate remedy.
I tend to think the State is correct that the situation is not like Daybell, although I’m less convinced that doesn’t mean it isn’t also a serious problem. I certainly think the State could have done more to make the discovery dump more usable. But are they required to? Doubtful. Too much information is a function of time as well as volume, and the ordinary course of action when you don’t have enough time to prepare is to move to continue the trial. The defense doesn’t want to do that, and they’ve made their record that they can’t be fully prepared if the case goes forward as scheduled, but that doesn’t mean the corrective here isn’t a continuance rather than striking the death penalty.
Prediction: Denied.
Exclude inflammatory evidence
There is likely to be a lot of gruesome evidence in the case given the nature of the crimes. The defense wants to limit the State from presenting gruesome evidence to the point that it is inflammatory. The State responds that gruesome evidence is not inadmissible if it is relevant, and the nature of the crimes controls the nature of the evidence.
My thoughts: It’s common for the defense to want to put outside limits on the State’s ability to horrify the jury. Crime scene photos and autopsy photos are necessary to understand the crime, but not every crime scene or autopsy photo needs to be shown for the necessary facts to be presented. Courts understand that there is a point where displaying gruesome images becomes gratuitous and unnecessary, but they often hesitate to try to draw that line ahead of time rather than waiting until trial to see what the State offers and how it uses the evidence - simply displaying photos en masse is much more likely to be a problem than displaying photos that a witness uses to point out specific important details that they observed. The most common practice here in my experience is for the court to tell the State not to be gratuitous and the defense to object at trial if they think the State has crossed the line.
Prediction: Denied.
Exclude Vague and Undisclosed Expert Testimony
The defense contends that as to many of the State’s expert witnesses, critical opinions or underlying data have not been disclosed as required by the rules. They provide an itemized list of expert disclosures and identify various deficiencies. Additionally, the defense argues that the State has been sandbagging the defense by initially disclosing a laundry list of topics the expert would testify about and only narrowing that after receiving the defense disclosures to tailor the disclosures to responding to the defense’s experts. Specifically with respect to the location analysis of FBI Special Agent Nicholas Ballance, the defense proffers an affidavit from Sy Ray arguing that many opinions on relevant issues have not been disclosed, the analysis and methodology are not provided, and underlying mapping and drive test data have not been produced.
The State responds that their disclosures are fine.
My thoughts: Judge Hippler previously cautioned the parties to err on the side of over-disclosure, so it is risky to disregard that warning. I’m expecting him to consider each expert individually to identify what the defense is identifying as a deficiency and whether the State had a duty to disclose what the defense wants. If there are deficiencies, I think he will likely give the State a short timeline to correct them before ordering exclusion - part of the reason for having these deadlines so far in advance of trial is to anticipate some tardiness. Some of the defense’s criticisms appear to be more appropriate for cross-examination or impeachment than exclusion, such as SA Ballance’s omitted work - if he didn’t do it, he can’t disclose it, so the remedy is to bring up to the jury that he didn’t do it and explain why that’s bad.
As for the disclosures, I was intrigued by the inclusion of a “Mr. and Mrs. Barnhart” proffered for “habit” evidence. This doesn’t sound like ordinary expert testimony and while I anticipate some “habit” evidence from the defense - they’ve told us about late-night drives and hand-washing, for example - I’m curious about what kind of “habit” the State would be proffering here.
Prediction: State will be given a chance to cure any deficiencies.
Exclude use of the term “murder”
The defense wants the court to prevent the State from referring to the killings as “murder,” because whether it is murder is the ultimate issue in the case for the jury to decide. The State says that murder is the charge, so saying murder is fine.
My thoughts: Witnesses, especially experienced law enforcement ones, often talk in conclusory terms like this as though the very thing they are there to prove - whether Bryan committed a murder - has already been established. There is an argument that this kind of testimony invades the province of the jury, who is the one to decide. It comes up often in the context of things like referring to an accuser as a “victim” or describing an interaction as an assault. The law is generally fairly permissive on the use of language like this, although it may discourage it, and judges have varying degrees of tolerance for it.
In this particular case, it doesn’t seem particularly offensive to me to refer to the killings as “murders” because that seems to be what they are - there’s no theory I’m aware of that these were suicides or accidental deaths or reckless stabbings or self-defense. The issue in this case isn’t whether Xana, Ethan, Maddie, and Kaylee were murdered when somebody apparently intentionally stabbed them and caused their deaths. The issue is who murdered them. For similar reasons, I personally don't take issue with referring to them as “victims” either - they are obviously victims of somebody.
Here, I don’t expect Judge Hippler to be a hard-liner against certain words but I wouldn’t be surprised if he cautions the State to be careful not to overstep into issues the jury gets to decide because that could necessitate a mistrial.
Prediction: Denied.
Exclude the terms “Psychopath” or “Sociopath”
Apparently the defense is responding to the use of these terms by a State expert and argues they are not diagnoses. The State says they don’t intend to elicit these terms but because Bryan has put his mental health at issue, it may move to have him examined by the State’s own expert.
My thoughts: The defense is correct that these terms are not generally accepted psychological diagnoses and are inflammatory. There is some gray area around “psychopathy” as a concept in clinical practice and risk assessment, and I’m not convinced there is a generally accepted distinction between psychopathy and sociopathy. But if the State doesn’t plan to go there anyway, I’m not concerned about it. I’m curious about the context in which an expert is using terms like this without, apparently, having examined Bryan, since the State indicates that remains to be done.
Prediction: Granted.
Exclude the characterization of certain DNA results as “inconclusive.”
DNA obtained from Maddie’s fingernail clippings was found to be a mixture of 3 individuals. According to the defense, when this mixture was compared to Bryan, the ISP lab characterized the result as “inconclusive” but because it reports a likelihood ratio of less than one, the result is exclusionary. The defense further contends that their own independent testing has excluded Bryan from the sample and that characterizing the result as “inconclusive” implies that there is a stronger case that it might be Bryan than the results support.
The State identifies multiple individuals who were compared against the DNA and reports that they all came back as inconclusive. It argues that Bryan can present his own expert testimony and cross-examine the lab analyst about the results.
My thoughts: DNA statistics can be very complicated and confusing. I wrote a much more detailed piece here about this motion and what this discussion of “likelihood ratios” is all about. I think the defense is generally making a good point that “inconclusive” sounds more uncertain than “very probably not him,” which is what the reported result really is. However, ISP policy requires the analyst to report it this way, so I doubt the court is going to say the analyst can’t do that. The State’s argument that Bryan can cross-examine the analyst about the policy and the meaning of likelihood ratios and also present their own results is likely to prevail here.
As an aside, this evidence hands the defense an argument that the State has tunnel vision in its interpretation of the evidence because it necessarily has to assume that some trace DNA matters and some doesn’t in order to interpret the DNA evidence as proving that Bryan is the killer. It will be fascinating to see how the State relies on transfer to explain away this unidentified DNA while denying that transfer can explain the DNA on the knife sheath, given the limitations of the science in this area.
I also find it a bit rich for the State to be arguing that the defense can cross-examine on the results while the State is simultaneously arguing that the defense should not be able to name any alternative suspects, so it’s not clear to me how both can apply. Can the defense talk about Jack Ducoeur and Cole Barenberg or not? What sorts of efforts did investigators go to to find out who Maddie had recent contact with that might be the source of the DNA under her fingernails and what efforts were made to obtain comparative DNA samples? Was anybody’s trash swiped for that purpose?
Prediction: Denied.
Limit Rylene Nowlin’s testimony about “touch” DNA
The State’s forensic DNA analyst, Rylene Nowlin, will testify about the DNA recovered from a swab of the knife sheath that produced a single male profile. Beyond this, however, Ms. Nowlin offers an opinion that the DNA was deposited as a primary rather than a secondary transfer, based on the quantity of DNA recovered and the fact that only a single source profile was obtained. The defense presents several arguments opposing this testimony: That Ms. Nowlin is not an expert in DNA transfer to offer this opinion; that the opinion is scientifically unfounded and therefore improper; that the use of the term “touch DNA” is misleading because it implies the mechanism by which the DNA was deposited, which is unknown; and the current scientific consensus recognizes that testimony about the mechanism of transfer can be misleading.
The State argues that the term “touch DNA” is commonly used in the forensic community and that transfer DNA is controversial in the community. In an affidavit, Ms. Nowlin argues that the term “trace DNA” implies an amount, while more than a trace amount was recovered from the knife sheath. The State represents that it will not use the term “touch DNA” in a misleading way.
My thoughts: It is not necessary to use the term “touch DNA,” and the term “touch DNA” is very misleading given what is currently known about environmental DNA and how DNA can be deposited from talking or simply being present in an area without touching anything. Like the motion about the term “murder,” this is another example of the kind of “begging the question” testimony that builds an unproven conclusion into the lingo.
The defense is also correct that the current science does not allow conclusions to be drawn with any certainty about the manner in which trace DNA was deposited. There is no statistical probability that can be reported for the conclusion, there is no known error rate for this type of opinion, there is no methodology for developing an opinion on manner of deposition. The information she relies on - sample size and single-source profile - do not exclude other manners of deposition. This opinion is, in simple terms, junk science.
What would be proper, in my opinion, is for Ms. Nowlin to review the literature about transfer DNA for the jury. She can point to studies where secondary transfer only rarely produced single-source profiles of the secondary contributor; the defense can then cross-examine her on other studies that showed the opposite. She can compare the amount of DNA recovered here (.168ng/µl, which equates to about 250 cells) to samples recovered in transfer DNA studies and shedder studies and the defense can do the same. It’s helpful for the jury to understand the context of this evidence and the factors that make it difficult to establish its provenance so that it can decide what weight to give the evidence. It’s not helpful for a witness try to tip the scale with their own opinion when the opinion isn’t one the scientific field recognizes as valid.
That said, will Judge Hippler care or will he just let them duke it out? I’m inclined to suspect the latter. It was noticeable that Ms. Nowlin didn’t contradict the defense’s argument that the current science doesn’t allow a determination of whether DNA deposition was direct or indirect, so that may be enough for the Judge to conclude that her opinion is not scientific. But, because she describes a divide in the community on the subject, it seems likely to me that he’ll allow the parties to present both sides of that divide and let the jury sort it out.
Another compelling fact from this motion is that blood was recovered from the knife sheath as well that contained a mixture from which Bryan is excluded. This seems significant for several reasons. One, it’s highly unlikely that the mixture is part blood and part trace DNA - the signal from blood is so much stronger than from a few skin cells that it overwhelms any trace DNA present. Thus, it’s likely all of the contributors contributed blood. Two, while the contributors probably include Maddie and/or Kaylee because of where the knife was found, the fact that the sample was tested against Bryan suggests strongly that male DNA is also present. There would be no need to test an additional contributor if the mixture was only two contributors and Maddie and Kaylee could be identified as those profiles, and there would be no reason to test a male contributor if the mixture did not reveal the presence of Y-chromosomes. Because blood on the knife sheath has a much narrower range of possibilities as to how it could have gotten there than trace DNA, if these assumptions are correct, this evidence is highly exculpatory to Bryan.
Prediction: Denied.
Exclude D.M.’s description of the intruder as having “bushy eyebrows” as unreliable
D.M.’s accounts of what she saw the night of the murders have been uncertain and evolving. The defense describes multiple times that D.M. was interviewed and notes that it was not until her fifth interview on November 17th that she described seeing bushy eyebrows, and it was only after she had been asked if she remembered any details about the intruder’s eyes or eyebrows. D.M. also draws a lot of eyes and eyebrows and displayed her art on her walls. Despite this fragmented impression of seeing a busy eyebrow and some kind of mask, she did not remember the color or shape and she did not recognize Bryan as the intruder when she looked his photo up online after his arrest. The defense argues that based on the science of memory and suggestion, as well as case law that discusses the reliability of identification procedures, that D.M.’s description of the intruder as having bushy eyebrows is not reliable and should be excluded.
The State contends that reliability is not an issue because D.M. was not subjected to a suggestive identification procedure and D.M. didn’t identify Bryan anyway.
My thoughts: I don’t think the court is going to apply the cases that deal with suggestive line-up and show-up procedures to this situation. It’s pretty normal and expected that somebody who experiences something traumatic may have their memory distorted by it, and the defense will be able to minimize the bushy eyebrow by highlighting how it came to be reported. Courts are not generally going to exclude eyewitness accounts based on their unreliability; instead, it’s an area where defendants have to expect to present expert testimony to show why a particular account could be tainted by suggestion or other factors, to support an argument that the jury should not give the testimony much weight.
Once again, this motion provides a fascinating new insight into some of the facts of the investigation. To me, D.M.’s description of the intruder is mostly exculpatory of Bryan. He may fit the description she gave of the intruder’s build - “basketball player skinny” - but he appears to be very tall - in fact, his thin build may make him appear to be taller than he is. I am 5’10” myself and if I were estimating Bryan’s height, it would definitely be more than an inch or two taller than me - I’d probably guess 6’2” to 6’4”. That said, of course I haven’t seen Bryan up close to me or under the circumstances in which D.M. saw the intruder. His eyebrows do not strike me as particularly bushy or distinctive. That D.M. didn’t recognize his photo and couldn’t describe enough of the intruder’s features to create a composite sketch seem helpful as well. The reality is that if D.M. was afraid of the intruder, she probably avoided eye contact and so she would not necessarily have gotten a clear look at his features.
Also interesting to note that D.M. did not describe the mask the intruder was wearing as similar to a balaclava until a balaclava was suggested to her.
Prediction: Denied.
Exclude unnoticed 404(b) evidence
As discussed in Part 1, the Idaho rules require the State to give the defense prior notice before it admits “bad acts” of the defendant. Here, the State has given notice of only the August 2022 traffic stop, so the defense argues any other “bad act” evidence should be excluded. The State responds that it will comply with rule 404(b).
My thoughts: This one isn’t complicated - the rule requires notice, the only notice is for the traffic stop, only the traffic stop should be admitted.
Prediction: Granted.
Exclude Amazon click activity
The defense argues that incomplete data production and disclosure of opinions and analysis should require evidence related to Amazon activity to be excluded. They argue that their own expert cannot evaluate the State’s position based on what the State has produced, and that the State did not disclose its witnesses on this issue until three months after the discovery deadline, and only after the defense had disclosed its own expert. Further, the State is still expecting new discovery at this late date. The defense’s expert testifies that on Amazon, user activity across multiple platforms and devices is aggregated into a single behavioral profile so the data should distinguish between different users or devices. However, because the dataset he was provided is incomplete, no accurate forensic opinion about user intent or behavior can be given from it.
The State responds that they provided the information obtained from their Amazon warrant in July 2023, within weeks after it was returned, and they properly disclosed a witness from Amazon. Countering the defense argument that the full records need to be presented for context, the State argues that the rule of completeness does not apply to business records because they are not statements.
My thoughts: The State has signaled that it intends to prove that Bryan purchased a Kabar knife and sheath (which were not recovered during the searches of his apartment, office, car, or belongings in Pennsylvania) and then shopped for a replacement knife in the time frame right after the murders. If so, this evidence is pretty inculpatory and might be enough for the jury to convict, in spite of the weaknesses in the case. But at the same time, neither party is being crystal clear about what this evidence exactly is and why it seems to be in dispute.
The defense is highlighting the use of a “household” account and the identification of the purchaser only by a credit card, as well as a package delivered to a name at a house. This makes it sound like Amazon shipped something to Bryan but it isn’t entirely clear who the purchaser was. The State points to a range of times in the Amazon warrant based on when it was “known” Bryan purchased a Kabar knife, a sheath, and a sharpener from Amazon, but it’s not clear how they “knew” this or if they have a specific purchase date or if the correct type and style of knife were purchased. Either way, the best case scenario seems to be that somebody in Bryan’s family bought a Kabar knife, and that knife was nowhere to be found when law enforcement raided the home in December 2022. Could it be a coincidence? Absolutely - but the jury is only going to tolerate so many coincidences before it decides they are no longer coincidences, and the presence of the trace DNA on a Kabar knife sheath at the scene is already a coincidence that’s going to raise the jury’s suspicions.
If the State’s evidence does tie Bryan to buying a Kabar knife and sheath, and the knife and sheath he bought were consistent with the wounds and the style of sheath recovered at the scene, he has a big problem if he can’t provide a very compelling and substantiated explanation of what happened to the knife. If he can show he sold it on Ebay, or gave it to a friend, or filed a police report when it was stolen, he might be able to slide; but the jury is absolutely going to expect an explanation why he no longer had the knife in December or he’s in trouble. This means if there isn’t a witness with knowledge of what happened to the knife, he’ll need to testify himself to explain it and not doing so will probably get him convicted.
Also, if the State “knew” Bryan purchased a Kabar knife because somebody in his family told the State he did it on the household account, then it’s double-extra assholey for the State to be arguing that the family shouldn’t be able to attend the trial after they cooperated with the prosecution and may be the reason why he gets convicted.
Lastly, the State’s argument that business records aren’t covered by the rule of completeness because they aren’t statements is very weak. Business records are listed as an exception to the hearsay rule precisely because they consist of and/or contain out-of-court statements that are offered to prove the truth of what they say. Yes, the defense should have the opportunity to provide any additional context that’s necessary under the rule of completeness.
Because of the importance of this evidence to the prosecution, I find it hard to imagine that the judge would exclude it. If there’s a deficiency in production, I expect he’ll give the State the chance to cure it and he’ll allow the defense expert to testify about all of the problems with the State’s experts’ opinions.
Prediction: Denied.
Exclude testimony of David Mittelman of Othram
Both parties are arguing that all testimony about investigative genetic genealogy should be excluded. Mittelman opines that Bryan would have been identified regardless of the SNP profile developed, and the defense argues that opinion is speculative. The State indicates it does not intend to call Mr. Mittelman if the defense does not call its experts on IGG.
My thoughts: If both parties are agreeing to leave IGG out of the trial, then the court will accept that stipulation. As the next motion shows, it’s not entirely clear they really are in agreement, but at a minimum neither seems to want to get into the kinds of details about IGG that would make Mittelman’s testimony relevant.
Prediction: Granted.
Exclude IGG testimony
As we saw in Part 1, the State doesn’t want the misconduct associated with their investigation to be presented to the jury, so they don’t want to bring up IGG at all. The defense, by contrast, is arguing IGG should be excluded as a sanction for discovery violations relating to delayed disclosure of protocols and other matters that the State had previously represented did not exist. The State argues their failure to produce the materials was inadvertent and was disclosed as soon as it was discovered, so there was no bad faith.
My thoughts: If both sides are saying the IGG doesn’t come it, it won’t come in. What’s really at issue here is the State’s desire to substitute testimony about a “tip” that led them to Bryan. The defense points out, correctly, that whatever testimony they present about a “tip” must not be misleading or suggest something that did not actually happen. Apparently everybody is going to talk over what the State wants to do and see if they can agree on it.
The IGG is a double-edged sword for the defense. On the one hand, they have a real gold mine of rule-breaking associated with the IGG that could be helpful if their strategy is to undermine the investigation. On the other hand, the IGG reinforces Bryan being the source of the DNA on the knife sheath, and that’s not very helpful. The strategic choice here to forego an area of impeachment of the investigators is probably a smart one, especially if - as some pleadings have intimated - the defense is not necessarily conceding that the DNA on the knife sheath is Bryan’s.
Prediction: Granted.
Exclude the make and model of the suspect vehicle
Again, the theme of this motion is unreliability. The defense alleges that FBI Special Agent Anthony Imel is offering an opinion of the make and model of the car seen on the surveillance footage outside of 1122 King Road, but the ID was not actually made from this footage - it was made from footage taken at 1125 Ridge Road at a different time. Because there is no continuous footage of the vehicle, the defense argues that the conclusion both cameras captured the same video is speculative. The jury will decide whether the vehicles are the same, so the scale should not be weighted with SA Imel’s speculative opinion.
The State responds that the vehicle made multiple passes by King Road and was also captured at other locations. They traced the route of travel and traffic is light at that time of morning. SA Imel said the King Road vehicle shared class characteristics with 2014-16 Hyundai Elantras but the Ridge Road video simply provided the best view. The State disagrees that the opinion is speculative and argues that it is circumstantial.
My thoughts: As we know, the tolerance for junk science in courts is extremely high. If SA Imel has special tools that allow him to develop clearer (but still accurate) images and compare them to different makes and models of vehicles at various points, taking sizes and proportions and the distortions from how light behaves on video into account, then maybe I would buy that he’s more qualified to have an opinion on this than anybody with eyes. His eyes are not magic. Two of the cars shown on video surveillance don’t even appear to me to have the same window shape - take a look and tell me what you think.
So, I don’t have very high expectations either that this testimony is very reliable or that Judge Hippler will exclude it. He will accept the State’s argument that the opinion is inferential and will conclude that the defense can cross-examine on the limitations of his information and opinions, including the routes of travel proposed by the State and the times it would take to travel between them.
Prediction: Denied.
Preclude using Bryan’s ASD as an aggravator
This motion is oriented towards a potential penalty phase trial. The defense plans to present evidence of Bryan’s autism and how it affects him as mitigation evidence. They want the State to be precluded from using those same characteristics to argue that his diagnosis makes Bryan more dangerous or the crimes more heinous. The State agrees that it will not use Bryan’s ASD as an aggravator, but reserves the right to challenge both his diagnosis and his argument that it deserves mitigating weight.
My thoughts: There has been some research in the last few decades, mostly overseas, that suggests people with ASD may be overrepresented in the criminal justice system. Like with racial disproportionality, there can be many causes for this and sorting out what, if any, relationship there is between different rates of perpetration between populations can be difficult. You can read about some of the reasons why it’s difficult to draw conclusions about ASD’s relationship to criminality here.
The State’s agreement, however, means this one is a non-issue.
Prediction: Granted.
Preclude misleading statistical analysis
Like the motion dealing with Maddie’s fingernails, this motion concerns how DNA results are reported and what the probability statistics actually mean. They are commonly misunderstood as meaning “1 in X people have this profile,” which makes them sound pretty unique to the person compared. But we don’t actually know how many people have or are likely to have that profile in the real world; we only know how rare the profile is, not how unique it is.
During the grand jury hearing, the State asked a question that implied the likelihood ratio statistic could be useful in calculating the profile’s probability of appearing in the population. Because this is a misuse of the statistic, the defense doesn’t want the State to do this again and potentially confuse the jury into thinking the statistic means something it doesn’t. The State agrees not to ask the same question and simply elicit the witness’s testimony about what a likelihood ratio is.
My thoughts: This is such an important piece of evidence and such a difficult one to understand that it’s critical to get it right if we expect the jury to base its decision on an accurate evaluation of the evidence. A rare profile is not necessarily a unique profile; you could have an extremely rare combination of characteristics, but if that combination appears in a set of identical twins, it will not be unique.
Again, since the State is conceding this issue, the judge isn’t going to argue with them.
Prediction: Granted.