Steve Palmer [00:00:00]:
Lawyer talk off the record on the air. They do not teach you that in law school. We teach it right here, though, at Channel 511. Check out the episodes at lawyertalkpodcast.com or in all the socials. What is they don't teach you that in law school? Well, look. We've got lots of followers, lots of interactions. But if you don't know, what we're doing here is we're taking legal topics that, I deal with every day in my practice. I do criminal defense work, and we are covering that from a real world scenario with two law students.
Steve Palmer [00:00:28]:
Troy works for me, Bella law student, both at the Capital University. I called it the Law and Graduate Center. I don't know what you guys call it, law school. And, you know, you guys, I love this stuff because they teach you the academic stuff. And then in the real world, we have those scenarios. And that's what we cover. And today, we're gonna talk about Brian Kohberger. Kohberger.
Steve Palmer [00:00:50]:
He he always asked me. You asked me these things, like, we're gonna talk about Kohberger. And I'm like, co what? Who's Koberger? Well, Koberger is the kid out in, what do you tell us about
Troy Hendrickson [00:00:57]:
Idaho. He's the one that allegedly went into the house full of the girls, and I think he killed about four of them, like, slaughtered them with, like, a machete. It was, like, butcher more.
Steve Palmer [00:01:06]:
Yeah.
Bella Mata [00:01:06]:
I think it was three girls and one guy.
Troy Hendrickson [00:01:08]:
Yeah. And the the picture that always stuck out to me was if you look from the outside of the house, you see the blood seeping in from the siding. Like Brutal.
Steve Palmer [00:01:15]:
It was a brutal case. I remember watching that when it first happened. Yeah. And And it seemed like an open and shut case. And but this is the thing. You know, before we even dig into the topic of the day, which I think is some fourth amendment suppression issues because we just had a suppression hearing in the case. But what you know, when everybody sees this, they everybody the public sort of thinks, well, this is open and shut. This guy had to just plead guilty, lock him up, throw away the key, execute him, whatever it is.
Steve Palmer [00:01:38]:
And all those things may be appropriate. Maybe. But it doesn't mean he doesn't he's not entitled to a defense. He is. That's where I come in. Right? I defend folks. And, you know, what do we defend against? Well, sometimes the defense isn't just guilty or not guilty. Sometimes we make sure that it's not too much, that the that the weight of the government has not been, is not unfairly brought upon a criminal suspect.
Steve Palmer [00:02:03]:
And what would be unfair to Kohberger? I don't know. This was a horrible case. If he did it, it's he's in bad shape, obviously. But, we still have protections. And the idea of the criminal protections, the constitutional rights are that we need to maintain them even in the worst of the cases. Because when it is you, and I promise you, it could be you charged with something that you didn't do, you need those protections there. And one of those that we're talking about today is called the Fourth Amendment,
Troy Hendrickson [00:02:31]:
which
Steve Palmer [00:02:31]:
says the police can't search you without a warrant. So it protects us from search and seizure unless the police go get a warrant. Now some quick Fourth Amendment. You have you guys had crimp pro yet? Criminal procedure?
Troy Hendrickson [00:02:43]:
In crimp pro right now. We're, like, just getting into the Fourth Amendment. I think my class Friday or tomorrow, we're actually talking about this case.
Steve Palmer [00:02:50]:
We're gonna open this. Yeah. Perfect.
Bella Mata [00:02:51]:
I'm taking it next semester. So Should
Troy Hendrickson [00:02:53]:
take it.
Bella Mata [00:02:54]:
Not yet.
Steve Palmer [00:02:54]:
Alright. So we'll go with Troy. So by the way, we didn't introduce you. We have Troy Hendrickson and Bella Mata. Right? Yes. I just wanna make sure I said it correctly. So let's, Troy, tell us what's the first thing you learned about the Fourth Amendment in law school by putting you on the spot.
Troy Hendrickson [00:03:08]:
Yeah. Like I said, we haven't got totally to this yet. Fourth Amendment, you have you you have a constitutional right to Be free from Free from unreasonable search or seizure without a warrant.
Steve Palmer [00:03:23]:
Okay. And then there's a huge but
Bella Mata [00:03:25]:
They need probable cause to be able To
Steve Palmer [00:03:28]:
get a warrant. Mhmm. But there's a bunch of exceptions. So Yeah. I mean, there's the that the US Supreme Court over the years has carved out. Now if you read the Fourth Amendment, it says no surgeons and seizures without a warrant. No warrantless searches. Yet there are lots of warrantless searches that happen in our society.
Steve Palmer [00:03:47]:
And and then there's lots of things, and it says searches and seizures. And there are lots of things that are maybe defined as not searches and defined as either seizures or not seizures. So we just talked about or a good one to a good example of this is if you're pulled over on the side of the road and the police happen to have, Fido in the back seat, and Fido is a trained drug sniff dog, And the police run the dog around your car, and Fido jumps up on your on the trunk. And lo and behold, there happens to be a case full of cocaine in the trunk. The US Supreme Court, I think the case was United States versus Place, says that's not a search. Why? Because they say so. Right? Because a dog did it. Right? So a dog is not a search.
Steve Palmer [00:04:30]:
Police have to do the searching. He's
Troy Hendrickson [00:04:31]:
just a good boy.
Steve Palmer [00:04:32]:
He's just a good boy doing what he's trained to do. No big deal. Has no separate animus. Just wants to please his owners, which is the problem with dogs in some cases sometimes. But, anyway, that's not a search. It feels like a search. It looks like a search. Seems like it should be a search, but it's not a search.
Steve Palmer [00:04:47]:
And the idea of fourth amendment jurisprudence is we have to get particular on what the definitions are. Now back to exceptions, not only are certain things not searches, certain situations don't require warrants. For instance, one of those situations is if you're pulled over in your car, The police can pull you over. They have to have some suspicion. You have to be doing something, maybe speeding. Maybe you're just, swerving within your lanes, not even committing a traffic violation, and they pull you over. They have to have reasonable suspicion to do that. That's less than probable cause that would be required for a warrant, but still reasonable suspicion.
Steve Palmer [00:05:26]:
Why pray tell is that the case? Well, the US Supreme Court has said that, we still haven't while we have an expectation of privacy in our car, it is less than that that we would expect in our homes. So look at the it's like a sliding scale. It starts with this reasonable expectation of privacy. We have a reasonable expectation of privacy in our homes. That's like the a man's home is his castle, a woman's home is her castle. You know, that's it's our it's where we live. So we have a expectation of privacy there. So it's obvious.
Steve Palmer [00:05:59]:
You can't come in the house without a search warrant, but not always. So but, so we that's an easy one. A car, the US Supreme Court has said, well, look. You're out in the public driving around. You're showing everybody what you got. You're out. You're, you know, you're you're demonstrating a lesser expectation of privacy. Agree or not, Supreme Court says so.
Steve Palmer [00:06:21]:
That's it.
Troy Hendrickson [00:06:21]:
I think that's kinda crazy because I think the one we went over already was a phone booth. So there's an expectation of privacy in
Steve Palmer [00:06:27]:
a phone booth, but not a car or less of one. Well, what was the so was are you allowed to what was the phone booth case?
Troy Hendrickson [00:06:35]:
The phone booth case was they wired they put a wire in a phone booth.
Steve Palmer [00:06:38]:
Oh, wire tap on a phone call.
Troy Hendrickson [00:06:40]:
Well, it was it was it was in the phone booth. It was back in the day.
Steve Palmer [00:06:43]:
Right. So they they they put a surveillance they put a recorder in a phone booth to listen to what people are saying. So when people go into a phone booth and close the door, the the the court has said, alright. You are demonstrating a reasonable expectation of privacy. It's relatively soundproof. You can have a phone call without other people eavesdropping. And, you know, that makes sense because any like any other phone call, you wouldn't expect the police to be listening in. So they're wiretap law I mean, that's a whole different
Troy Hendrickson [00:07:12]:
Yeah. I I just imagine the car same way. I opened the door. I got
Steve Palmer [00:07:15]:
in there.
Bella Mata [00:07:15]:
I thought with the car, they can't go in the trunk, though, because that isn't exposed. Maybe the dog thing would be different if it's sniffed it out, but I thought they wouldn't. Okay. They weren't allowed to.
Steve Palmer [00:07:25]:
So you were you were breaking down not only a car. So you the the police don't need a warrant to pull over your car if they have something called reasonable suspicion. And then the question is, what can they do when they get your car pulled over? Can they look inside the car? Can they look in the trunk? Can they look in the glove box? Or we can call it the boot, like the like the old folks used to say in England, they can't which is the trunk. Can they look underneath it with a camera or a mirror rather? Those are all issues. And the first question is, do you have a reasonable expectation of privacy in those in those places? And the second is, is it a search to begin with? Now there's some exception, and all of those things occur routinely day in and day out. Like, if you're driving down the road, you're on the road, like, say, on I 71 here in Ohio, and you see a car pulled over by a a police car and there's, like, three other cops around, like, there there's something going on, you know, unless they're fixing something or there's an obvious breakdown. They're probably searching it for dope. And this you can almost be assured that they don't that these police don't have search warrants.
Steve Palmer [00:08:33]:
So why? Because the Supreme Court has said we have a lesser expectation of privacy in our vehicles. Now the question is, what is required then as a result of that lesser expectation of privacy? In other words, what degree of of suspicion is necessary? The lowest standard being reasonable suspicion, above that, you have probable cause. The police or the US Supreme Court has said you have to have probable cause to search closed containers in a car. And lo and behold, in your scenario, Bella, the dog jumped on the trunk, and that has been sufficient to give the police probable cause to search inside the trunk. Short of that, though, they can't just open up the trunk. So that is one those are exceptions to the search warrant requirement because we have a lesser expectation of privacy. And then the question is, still, what does what is required that what what knowledge in the continuum of investigation do the police have to have in order to search things like the trunk or a suitcase in the car or your purse or your wallet? Those things are different. So the back to the bigger picture, there's you have to have a search warrant unless exceptions apply.
Steve Palmer [00:09:48]:
One is the automobile exception. Another might be anybody got a guess?
Bella Mata [00:09:52]:
Yeah. Inevitable discovery. Is that what it's called?
Steve Palmer [00:09:56]:
That's something different. Oh. But I like it. A new
Troy Hendrickson [00:10:00]:
automobile exception. You you took the easy one, man. That's not fair.
Steve Palmer [00:10:03]:
The easiest one is still lingering out there. It's sitting right here on the table in front of you. Troy, can I search your car?
Troy Hendrickson [00:10:10]:
Consent? Yeah. There you go.
Steve Palmer [00:10:12]:
Yeah. Consent's another one.
Troy Hendrickson [00:10:14]:
The thing is I I hate watching all these clips of the consent ones where the guy's like, yeah. Absolutely. And they're like and then they find all the drugs and everything. I'm like, what? Like, why did you consent? It just doesn't make any sense. Then, like, I understand there's like this little Alright.
Bella Mata [00:10:26]:
Maybe they thought it would look better.
Steve Palmer [00:10:28]:
Are you guys are you guys Star Wars geeks?
Bella Mata [00:10:30]:
Never seen it, actually.
Steve Palmer [00:10:32]:
Alright. I'm sort of a Star Wars geek. Because it came out when I was in my heyday of my young, impressionable youth. But there's there's something called a Jedi mind trick. It exists in the world, and police have been employing that tactic for years long before and long after Star Wars. These aren't the droids you're looking for. You don't need to search my the the point is police ask questions in such a way that they get a yes. Happens all the time.
Steve Palmer [00:11:00]:
I'd like you to step out of your car and perform some field sobriety test. Sure. Sure. But they don't say, hey. Look, Troy. You don't have to perform field sobriety tests, but I'm gonna ask you to perform field sobriety tests. And if you say no, no big deal. They so they just ask.
Steve Palmer [00:11:15]:
Hey. Look. You got anything in the car I should be aware of? Well, you know, not really. You care if I look around? No. Go ahead. And next thing you know, they find a brick of cocaine in your trunk. And if you said no so and here's the here's the paradox. Bella, you're pulled over, and you've happened to be a a, a well veiled cocaine dealer.
Steve Palmer [00:11:41]:
And in your trunk, you've got a couple bricks of cocaine. Police pull you over, and, they have watched you maybe, and they suspect you, and they pull you over, and they think we got her this time. She's got cocaine in the car. But they don't really know for sure, and they don't have probable cause. And they pull you over, and they say, and say they pull you over for speeding. And they say, we'd like to search the trunk of your car. Can we look in there? And you say, no. Alright.
Steve Palmer [00:12:08]:
Here's the paradox. Everybody thinks, well, if I say no, then they're gonna think that I've got something to hide in my car. And guess what? They think you've got something to hide in your car. Of course, they do if you've said no. It doesn't mean it's always true. I don't, you know, I I happen to employ my rights when I can, although not to be a dick. It just it's like you're in that sort of if I say no, they're gonna be pissed. If I say yes, they're gonna find something.
Steve Palmer [00:12:30]:
Or even if I have nothing in my car, sometimes I would just You just don't wanna be rude. No. It's human nature. Right? Yeah. You're you that's the Jedi mind trick. So Bella says no. The police immediately think that she's hiding something. And then so what? Guess what? They already thought you were hiding something.
Steve Palmer [00:12:45]:
Otherwise, they wouldn't have asked. So still, you can exercise your constitutional rights. You don't have to consent. And what are they gonna do? Well, you know, go get a warrant. Go get a damn warrant. Now why would you do that?
Bella Mata [00:12:57]:
Or the dog.
Steve Palmer [00:12:57]:
Or they can bring a dog, and they might bring a dog. Now there's a problem because when they pulled your car over, they stopped your car, and there's a case have you had this one yet? You can't extend the stop. Is that right? Yeah. But before that, there's a case called Delaware versus Prouse that says a police stop motor vehicle is a significant intrusion that requires justification on the Fourth Amendment, meaning, re some reason to stop. You can't pull over cars We're not Nazi Germany where they can just jackboot you over and say stop and search. So they got you stopped. Now they have to get get down to business as reasonably quickly as they can, and that's what you so what you were saying?
Troy Hendrickson [00:13:32]:
Yeah. They're like they can't extend the stop for to wait for the dollar or something like that. They have to, like, write a ticket. And then once the ticket's, like, handed over, it's pretty much the stop's over
Steve Palmer [00:13:41]:
Yep.
Troy Hendrickson [00:13:41]:
At that point.
Steve Palmer [00:13:42]:
And there's a couple cases. Both came out of Ohio. One is called Robinette One, Two, and three. There's, like, three versions of Robinette. And then another one's called Wren, W R E N. I think both came from Ohio. And Ohio makes it big again with constitutional screw ups. But, and what they're saying is I pulled they pulled Bella over for speeding.
Steve Palmer [00:13:59]:
They're they gotta get down to business and give you a ticket the way they normally would. They can't come back and kick back and say, what's going on? All the while, they've radioed their buddy to get there with a dog as fast as possible. You're sitting detained, warrantlessly on the side of the road, and the suspicion for that has only been speeding. They can't extend that beyond what is necessary to get down to the business of dealing with the speeding stop. And this gets down to, like, stopwatches. You know, people say, well, thirty minutes to get a dog is sufficient. But and I've I've raised this and sometimes to deaf ears. I think one second is too long if the police have no suspicion to extend the stop.
Steve Palmer [00:14:45]:
So the cases that you guys are gonna read that say thirty minutes was reasonable or an hour was reasonable, there's always some suspicion. So maybe the car smells like dope. Maybe the dog or maybe, not the dog because we're waiting on the dog. Whatever it would be. Maybe maybe you've you look like you're furtive, or maybe they've watched you perform some dope. Whatever it is, they've gotta have some justification to extend the stop. So without justification, it cannot be extended for one second longer than necessary. Now if they smelled weed emanating from the trunk, they can say, alright.
Steve Palmer [00:15:19]:
Bella, we're gonna let you sit back here in the air conditioning in our cruiser for a while, and, we're gonna get a police dog out here, and that takes an hour. And if that's reasonable, that's reasonable. And then the dog hits and they search the car. That would be probable cause because the trunk smelled like weed, or at least that's the argument.
Troy Hendrickson [00:15:36]:
Well, she sells cocaine, so it'd be, like, look like you just ate a bunch of powdered donuts or something. Like Well, coke look. If you
Steve Palmer [00:15:44]:
sell cocaine, weed is like an appetizer. Yeah.
Bella Mata [00:15:46]:
But What if they got a tip from someone like Troy who said that I had Coke in the trunk?
Steve Palmer [00:15:53]:
Informant tips. Aguilar or Noah. What are they?
Bella Mata [00:15:55]:
Probably did something like that.
Steve Palmer [00:15:56]:
Yeah. Informant tips. So that that comes up a lot in, search warrant cases where police go and, they tell a judge who's gonna issue a search warrant. Hey. Look. We got a tip from somebody. And, Troy they don't identify Troy as a confidential informant who has, said that Bella deals cocaine, so we wanna go sir we wanna search warrant to search her trunk or whatever it'll be. There's some rules around that about that, but the police have to put information in the search warrant that indicates you're reliable.
Steve Palmer [00:16:23]:
And that could be based on prior experience. It could be based on even this experience, but several other things that you've told them have checked out. So, therefore, they think it's reliable. So informative tips are different. Now they also there was also informative tips, you know, you're driving along. We'll make it his fault this time. So you're driving along, and you see this idiot over here driving like a jackass. And he's all over the road.
Steve Palmer [00:16:44]:
Maybe he's got White Castle bags he's tossing out at two in the morning as he stopped in the bars on the way home. And you say, hey. Look. I got some guy in a white Toyota in front of me. He is all over the road. He threw out White Castles. We all know what you why you're eating White Castles because you're drunk and you're trying to, you know, you're getting your fifth meal or whatever it is. And, you know, we just want I want somebody to do something about it.
Steve Palmer [00:17:06]:
So now the police go stop Troy's car. Then the question is, can they do that solely based on your tip? Ohio has some rules on this. If they can identify you, so they you give your name and phone number. If the police corroborate what they see, then those those those tips tend to be sufficient. So, anyway, I don't know where we were, but we're talking about exceptions to the warrant requirement. So you don't always need a search warrant. And I guess we're supposed to talk about COBRA. COBRAGER.
Steve Palmer [00:17:36]:
So let's let's do that.
Troy Hendrickson [00:17:37]:
Okay. I mean, we we've gone over, like, a long breakthrough of the fourth amendment. That's good. I'll start off with the facts of this suppression hearing. So, I mean, that's the biggest update in the case is there was a suppression hearing.
Steve Palmer [00:17:48]:
A suppression hearing, now here's what that is. I mean, look. Not everybody knows what that is. Yep. A suppression, they don't teach you that necessarily in law school. A suppression hearing is the defense has said, we don't believe you government, your cops, conducted a lawful search. In fact, we allege we hereby allege that that search of my client's house, of his phone, of his car, of his stuff, whatever it is, violated the Fourth Amendment. And once the defense raises the specter of a Fourth Amendment violation, there's a burden shift.
Steve Palmer [00:18:24]:
And by burden, it means now the government has the burden of proving to the satisfaction of the judge that there was not a Fourth Amendment violation. All we have to do is raise it. The government has to then disprove it. So alright. So and and that happens by calling evidence, presenting testimony and witnesses at a hearing, which is called a suppression hearing. And you brought up something before called inevitable discovery, which really is an exception to the notion that any any evidence found as a result of a Fourth Amendment violation, a search that violate the Fourth Amendment, is suppressed, thrown out of court. This is when they got the evidence thrown out. You're talking about it was suppressed from use at trial.
Steve Palmer [00:19:06]:
The the judge says you're not allowed to use it. And here's my pet peeve. People would say, well, you got a one on a technicality. Alright. It's only an amendment to the United States Constitution. It's a Fourth Amendment violation. That's hardly a technical problem. It's a constitutional problem.
Steve Palmer [00:19:23]:
So it's not just a technicality, but a suppression hearing is a hearing where the judge has to decide, am I gonna throw out the evidence based on a Fourth Amendment claim by the defense? Alright. So now we've got that.
Troy Hendrickson [00:19:34]:
Yeah. So another thing, though, that was also done, it wasn't we weren't allowed watching it, was a Franks hearing. And
Steve Palmer [00:19:41]:
Franks. Yeah. Delaware versus is it Delaware versus Franks? Yeah. Franks. So
Troy Hendrickson [00:19:45]:
Franks. Yeah. There was a Franks hearing, but we didn't get to watch it. They did a whole there was a three day ordeal. The first day was with the media lawyers. And the argument was whether or not this was gonna be a public hearing or not. And That's
Steve Palmer [00:19:57]:
a different issue. Yeah.
Troy Hendrickson [00:19:58]:
It's a different issue. But that's a suppression hearing. These are the facts they went over that was on the video. At the scene of the crime, there was a sheath found, that they believed. A what found?
Steve Palmer [00:20:09]:
A sheath. A sheath. A knife sheath.
Troy Hendrickson [00:20:10]:
A knife sheath.
Steve Palmer [00:20:11]:
So something you would put your knife in the store.
Troy Hendrickson [00:20:13]:
Yep. It was found there. There was DNA on it. On the
Bella Mata [00:20:16]:
bottom of it or something. Like, a very small piece. Yeah. So
Troy Hendrickson [00:20:21]:
the cops took it. They ran it through their DNA database. It came back with no hits. So then they give it to the state police. Here we have the highway troopers. I I don't know what they call them in Idaho. Gave it to them. That had no hits on their DNA either.
Troy Hendrickson [00:20:35]:
So then they gave it to the FBI. What the FBI did is they created a profile of this DNA, and they used databases like ancestry.com, what it some of those other, like, private clients. They made they basically just made up a guy, put his DNA on there. They found a distant relative. And They're like, okay. This is the connection we're gonna go. We wanna get more specific. So they went to the house of his parents where they put out they put the parents put out the trash.
Troy Hendrickson [00:21:04]:
The FBI worked with the garbage company to have a clean truck. Come grab the garbage. They met him at the end of the neighborhood, ran the DNA of the parents.
Steve Palmer [00:21:12]:
Parents of whom?
Troy Hendrickson [00:21:13]:
Parents of Kohberger.
Steve Palmer [00:21:14]:
Okay.
Troy Hendrickson [00:21:15]:
So then that's how they figured out it was him because
Steve Palmer [00:21:18]:
So what happens is this. The police are at the scene of the crime Mhmm. Initially. Yep. And they find evidence in the form of a sheath that would house a knife. And they run that through their, you know, CSI lab, and they identify blood or DNA. Do we know what kind of DNA it was?
Bella Mata [00:21:38]:
No. It wasn't blood.
Troy Hendrickson [00:21:39]:
It was
Steve Palmer [00:21:40]:
a so epithelial DNA or some sort of contact DNA. Yeah. Meaning skin cells or sweat or something. Yeah. Then the police try to create a profile, and they do. They, in fact, do create a profile. So this goes off to a lab, and the lab has, markers. I'm I'm screwing up the DNA.
Steve Palmer [00:21:58]:
We'll bring in a DNA expert one day. And and think I'm like think I'm like, numbers, like, a a set of numbers, And that set of numbers is unique to a person. And that is something, that set of numbers you they can compare to known sets of numbers that identify a person. And that's what they did. They created a profile. And when you say they can't identify whatever, they have the set of numbers, but they don't know whose numbers they are. They don't know if they're yours or yours or mine. They might be able to identify from those numbers that it was a male.
Steve Palmer [00:22:33]:
They might be able to identify a couple of things, but they they don't know. And the reason they don't know is because Kohberger or whoever can was the contributor or the source of the DNA is not in the database. Then the police sent it to the state lab, and these the code apparently, COBRA or nobody else that matches those number is in the state database. The state database folks then sent it to the FBI. Now we're looking nationally to see if anybody else matches those numbers. And DNA sort of works this way. Again, I apologize to my experts who maybe are watching. But they start to take they start to compare certain matches of those numbers.
Steve Palmer [00:23:09]:
Anybody who plays a lottery does this. You know, like, well, I got four numbers out of that big, you know, whatever it is. It almost sort of gets you there in DNA. So they match up. They they look at ancestry.com or any of those other places, and they find this mass database of people who might match these numbers. They run a computer statistical analysis, and they the the computer spits out this thing or some result that says, well, we don't have anybody exactly matching. But statistically speaking, we think that these people are distant relatives. Then that sends the police down that path, and they identify parents.
Steve Palmer [00:23:46]:
And they start watching parents, and then they pull do a trash pull, and lo and behold, they find DNA that matches Kohberger. Is that is that sort of what happens?
Troy Hendrickson [00:23:56]:
Yes. That's that's what happened.
Steve Palmer [00:23:57]:
So they they they find DNA. They find Kohberger's d n DNA. So now now the police have Kohberger's set of numbers Well, I guess compared to the set of numbers.
Bella Mata [00:24:06]:
They realized it was his DNA until they, like, swabbed his mouth when he was already arrested.
Steve Palmer [00:24:12]:
Right? Yeah. That's right. Yeah.
Troy Hendrickson [00:24:13]:
So But they had the parents, and that was I mean, that's pretty close.
Steve Palmer [00:24:16]:
Yeah. So you're right. So what what what they have is they already had Coburg's, well, look. Or when did they get Coburg's DNA? I was
Troy Hendrickson [00:24:25]:
I don't think it was until after he was arrested. Yeah.
Steve Palmer [00:24:27]:
All they
Troy Hendrickson [00:24:27]:
had was And why
Bella Mata [00:24:28]:
why what
Steve Palmer [00:24:29]:
I don't understand about this fact pattern is why doesn't why didn't the police just compare Kohberger's DNA to the DNA they found on the knife?
Troy Hendrickson [00:24:39]:
I mean, that's a question for the police department.
Steve Palmer [00:24:41]:
I don't have a factual enough to know that. I I mean Let's assume for whatever reason, they didn't have Kohberger or they didn't have it. But in Ohio, they would immediately have Kohberger's DNA. Mhmm. And they could just say, look. You matched the DNA we found on the knife.
Troy Hendrickson [00:24:53]:
That that would make a lot of sense to me.
Bella Mata [00:24:55]:
So
Steve Palmer [00:24:55]:
for some twist of facts, that doesn't happen here. But your your question the so now there's a suppression hearing, and I imagine the suppression hearing is challenging
Troy Hendrickson [00:25:02]:
There's
Steve Palmer [00:25:03]:
the trash poll.
Bella Mata [00:25:04]:
And how they got the DNA. Yeah. I guess I don't know. I think the defense was arguing that they haven't got all the evidence yet from Forensic, and, like, the FBI was being, like, really weird about it. So they're trying to argue that maybe they used one of these databases that they probably shouldn't have, and they're trying to, like, cover it up in some way. So they're trying to get that thrown out.
Troy Hendrickson [00:25:27]:
It was weird because all the they're saying the FBI documents were, like, all redacted. Like, they're like, we'd have no idea, like, how they were even doing this, but all we know now is they used one of these databases that they said they would not use against their rules and policies. And then Ancestry.com and all of them say you can't use it either.
Steve Palmer [00:25:44]:
So let's let's say all that happened. Alright. There there's some Fourth Amendment issues that I that I can see why they're trying to claim it. I can also see why it's going to fail. The the FBI accesses ancestry.com, and however many of those types of services are out there. And from there, they winnow this down to Kohberger's parents, and that leads them to Kohberger. And forget for a second why we don't know. They wouldn't have just compared Kohberger to the sample, but they didn't for whatever reason.
Steve Palmer [00:26:18]:
Kohberger is challenging the FBI and police access to these databases as a Fourth Amendment issue. It is not a Fourth Amendment issue, and there's a couple of reasons for it that we'll go back to where we started. The Fourth Amendment is premised upon somebody's reasonable expectation of privacy in the place or thing to be searched. Koberger has no expectation of privacy, reasonable or otherwise, in ancestry.com. Now the question is, is there any other reason to throw out the evidence based on the police violating their own internal standards? Here's where Abeli brought this up earlier, the with inevitable discovery, etcetera. But the exclusionary rule says as a prophylactic or preventative remedy for Fourth Amendment violations, the US Supreme Court has said the penalty is you can't use the evidence. But that there has to be a Fourth Amendment violation for that to occur. What happened over here at ancestry.com is not a Fourth Amendment violation, at least not anything that Kohberger has standing.
Steve Palmer [00:27:26]:
In other words, it didn't impact. He's got nothing there. He got no expectation of privacy. He can't argue that the police weren't allowed to search that because he didn't have an expectation of privacy to make that argument. And, therefore, the exclusionary rule doesn't apply. So now the question is, should the evidence be thrown out for some other reason, a non constitutional violation? Because that's what this was. And, you know, the the a the United States attorney, the FBI, the local police, they all have their internal standards, but those don't always and most of the time do not trigger the exclusionary rule that gets the evidence thrown out. So in some, Kohberger's screwed.
Steve Palmer [00:28:04]:
Yeah. The judge,
Troy Hendrickson [00:28:05]:
I think, that the line I relate was he's like the ancestry. I keep saying ancestry.com. They said they don't know the exact database, but it was one of those.
Steve Palmer [00:28:13]:
Because it's blacked out something.
Troy Hendrickson [00:28:15]:
But I think the judge, I think the line he said was, like, like, the terms and conditions of ancestry.com are not in the constitution. Like, it's just It's exactly what we're talking about. Like, they're in the wrong, but, like, it's not a constitutional wrong.
Bella Mata [00:28:27]:
Like, you
Steve Palmer [00:28:28]:
know, it's like shady. It's shifty. You know? Nobody likes and, you know, we we've run into this with things like cell phones where is Apple gonna give you the key to the kingdom? Like, is Apple gonna make it easy for the cops to break into a phone or make it hard for the cops to break into a phone? Will they will they give them the software hacks or will they not? I mean, this has come up in in in situations like that.
Troy Hendrickson [00:28:49]:
That was a big one during the Boston bombings, I I think. Wasn't it? Like, they they, like, were trying to get through Apple, and, like, Apple was, like
Steve Palmer [00:28:56]:
Apple couldn't do it. Yeah. And, you know, and that's on Apple. So I I but but I wouldn't have an expectation of privacy in data that my cell phone carrier possesses, generally. Now my phone's a different story, and certain data that they possess might be important. And there's some search warrants that are required there, but it's not always the case. Like, this ancestry.com information, I don't have a reasonable expectation of privacy in that. I won't send my DNA to some outside source because I don't trust anybody.
Steve Palmer [00:29:26]:
Not that I I've never committed crimes.
Bella Mata [00:29:27]:
Either one.
Steve Palmer [00:29:28]:
I I just I don't like it because I don't believe for a second that the government won't access and use it. And then you would say, here here's where I let me put my foil hat on. You would say, why do you care if you never commit a crime? Because I don't trust the government. And why don't I trust the government? Because our country is founded on the notion that we have to keep our government in check. And the government is made up of people, and people are inherently subject to human flaws. Believe in your God or don't believe in your God, we all come with with flaws. And if you think that you're that any one person can't be corrupt, fine. I'll give you that one.
Steve Palmer [00:30:05]:
The next one in that guy's place will be corrupt. So the idea here is we don't have to have perfect cops because we can't have perfect cops. Nobody's perfect. We have one in our by my beliefs, but, you know, that one, and it it it ain't in the police force. But what we can have are checks and balances that make sure that imperfection or or, corruption or mistakes get smoked out. And that's why I'm not gonna just give my DNA because I don't trust that it won't be used in some way that's that's not corrupt.
Troy Hendrickson [00:30:38]:
I went home after this and told my parents that they're not allowed to do an ancestry.com, and we're not doing any of these database things.
Steve Palmer [00:30:44]:
I was
Troy Hendrickson [00:30:44]:
I was freaked out.
Steve Palmer [00:30:45]:
I was like, well, this is insane. You guys live in a world that I would never live in. I mean, look. It was I a saint when I was in high school and college? No. Not even or even law school. Not at all. But I didn't videotape every damn thing I did, and I certainly didn't post anything that I did. You know? And now kids are doing this, and they don't realize because there's been there's a conditioning that has happened that people think, wow.
Steve Palmer [00:31:08]:
I'll just send my DNA. It's awesome. It's neat. I'll share my I'll share this. I'll post this. And then you don't realize what how that can be used and even in a way that is not fair. Yeah. And there's no remedy for it.
Troy Hendrickson [00:31:21]:
It's just kinda crazy that people would, like, they would read those terms and conditions, be like, oh, well, the cops can't use this. And it's like that.
Steve Palmer [00:31:26]:
Like, they can't. So what is the remedy? My remedy is I would sue ancestry.com and say, you screwed me. And they're gonna be like, yeah. Yeah. Yeah. And maybe maybe they'll even pay something, or maybe you've got some some civil remedy, but the police are still gonna prosecute you. He could he could use
Troy Hendrickson [00:31:42]:
that lawsuit for commissary. You know? He's gonna be in jail.
Steve Palmer [00:31:45]:
Well, that's right. For commissary. That's right. Yeah. So it it just is and and but just to bring it back home, the reason that it matters that people are posting these things, that people are, sharing their DNA. Because what is I mean, it will go I won't give you the words, but what are what are people doing when they when they share, when they post, when they, put their stuff out in public?
Troy Hendrickson [00:32:14]:
They're just they're forfeiting their expectation of privacy?
Steve Palmer [00:32:18]:
Bingo. That's exactly what they're doing. They they are telling everybody that I don't have a reasonable expectation of privacy, and that's because I'm making it public. Yeah.
Troy Hendrickson [00:32:26]:
I want I wanna touch on one thing. It wasn't that big of an issue, the trash pull. Mhmm. I'm not like are are you familiar, like, at all with the, like, rules on this?
Steve Palmer [00:32:35]:
Like
Bella Mata [00:32:35]:
I think what the judge said was, like, as soon as your trash is on the street, it's technically, like, the cities at that point to collect, so it wasn't really a violation. I thought that's what they said.
Troy Hendrickson [00:32:47]:
I mean, when we talked about it in class, like, it was, like, imagine you put out, like, a basketball hoop or something on the curb. Somebody pulls up and grabs it. Like oh, sorry. Basketball hoop's actually the bad example because some people put those on the curb to, like, actually for people to play in the street. But if I put a couch out on the curb, I think society, we, a reasonable person, would interpret that I'm throwing that out as And
Bella Mata [00:33:06]:
I'm like, it's no longer your property.
Steve Palmer [00:33:08]:
Yeah. What
Troy Hendrickson [00:33:08]:
are you giving up? I'm giving up ownership.
Steve Palmer [00:33:11]:
You're giving up your reasonable expectation of privacy. Yeah. When you put something in the trash, you're sending it out to the curb. You're saying, I no longer have a reasonable expectation of privacy in that bag of trash. It's fair game. The police can search it without a warrant. Not because it's one of the exceptions, but because the Fourth Amendment doesn't apply. So these are the logical distinctions that matter.
Steve Palmer [00:33:31]:
First question is, does the Fourth Amendment apply? Second question is, can the police search it without a search warrant? And Fourth Amendment Fourth Amendment applies when you have a reasonable expectation of privacy, not when you don't. In in both these scenarios, the the DNA database that some of some third party's DNA I mean, it's not even his DNA. So it's a third party. So there's two problems. One, he doesn't have standing. In other words, he's not in a position to go challenge this. And two, he doesn't have a reasonable expectation of privacy. So it's not a search at all.
Steve Palmer [00:34:00]:
Fourth amendment doesn't apply. And therefore, the exclusionary rule doesn't apply. And even if they did, even if the fourth amendment did apply, now the question becomes, is there some exception to the search warrant requirement?
Bella Mata [00:34:10]:
I think what they were saying was from the DNA that they found that linked to the dad, that's when they got their search warrants, and they were able to look through his apartment and his car, and they found on his computer, like, him buying the
Steve Palmer [00:34:25]:
knife and question. Okay. So here's what happened. This answers our question.
Bella Mata [00:34:28]:
I think it kinda led
Steve Palmer [00:34:29]:
to him. The police didn't know at the time who Kohberger was. He hadn't been arrested yet. No. It's how they got to him. Mhmm. So based on the trash polls, they and based on the DNA evidence, the DNA evidence gets into the parents. Parents gets into the trash.
Steve Palmer [00:34:45]:
Trash gets into Koberger. Mhmm. They the police then take all of that information, that constellation of facts. They put it in something called an affidavit. And an affidavit is a search for a search warrant, and they take that affidavit to an independent magistrate, presumably. And they say, judge, please give us a search warrant so we can search Kohberger's house, this residence. And here's the reason we think that we have
Bella Mata [00:35:09]:
Probable cause.
Steve Palmer [00:35:09]:
Probable cause to have a search warrant. We found DNA. The DNA went to parents. We went to a trash. Clearly, from the trash, we found DNA on items identified with Kohberger, who owns this house, as a match to the DNA that we found at the scene. Therefore, we think there's a reasonable belief that there's going to be evidence at the house. And the put those magistrate said, yeah. I think that's reasonable.
Steve Palmer [00:35:38]:
Here's your search here's your search warrant. Go forth and prosper. They go into Kohberger's house. They find evidence that implicates him, including his DNA swab after he's arrested probably. Or maybe they used out all that evidence to get a search warrant for Kohberger's DNA. That happens all the time.
Troy Hendrickson [00:35:57]:
When you arrest somebody, do you need a warrant to get their DNA? Or is that just free chicken at that point?
Steve Palmer [00:36:01]:
People they get a warrant. So this happens all the time for me. I get plea guys call all the time. I mean, maybe maybe you've been around when this has happened, where somebody a suspect in a rape case. Say it's a guy wakes up on Saturday morning, had a little too much to drink, and in his bed is another girl who had a little too much to drink. And then a week later, the police call and say, we're investigating a potential crime. We'd like to get your DNA. And, you know, the guy's thinking, oh, yeah.
Steve Palmer [00:36:30]:
Sure. I mean, whatever. I got nothing to hide. But then all now they have police have his DNA. People call me all the time, and I say, tell me to get a warrant. Why? Because, I
Troy Hendrickson [00:36:41]:
mean, now they have you're in that database forever. Well, more
Steve Palmer [00:36:44]:
than that. So there's two things going on. First of all, the guy in bed, or sometimes it's the girl, it's happened to me both ways, should not make any statements. Do not admit to anything. And most people will admit, yeah, we had sex, and it was consensual. You don't need to make any statements. You have a right to remain silent. Please exercise it.
Steve Palmer [00:37:03]:
Secondly, you don't have to give DNA. And if they if you don't make any statements and you don't give DNA, they the police have to get a warrant. Now let's say they can get a warrant anyway. Alright. I mean, that's probably true. The girl's saying, look. He raped me. I didn't say I said no, and he said yes and whatever it was.
Steve Palmer [00:37:19]:
So now the police get a search warrant, and they take Troy's DNA. And in order to get that, though, they had to prepare an affidavit, put information to establish probable cause in that affidavit, and present it to a judge and get a search warrant. They sometimes screw that up. Sometimes there's not probable cause. Sometimes neither party in this in our fun fact of college heaven know remembers what happens. Happened all the time. People wake up. It's like, did I? I don't remember.
Steve Palmer [00:37:49]:
Maybe. And look. This is why you shouldn't do these things. But if you have, it may not be obvious that there was sex, and it certainly may not be obvious that you're the one. And if you're and if the one side can't remember, and then they still have to prove that it was you. And DNA is the way they do that, and you've given it to them on a platter if you consent to it. Mhmm.
Bella Mata [00:38:10]:
I just find this case really interesting because it seems like that's really all they have is, like, that little shred of DNA. Yeah. And because even when they were tracking his phone, it was, like, only in in, like, a 13 mile radius. Like, that's really doesn't put you at the scene.
Troy Hendrickson [00:38:26]:
The the phone tracking, I think, is, like, a thing that people think is so much better. And when I start working for you, like, I started realizing, like, on these phone things, I was like, well, we have them within, like, fifteen months. Sometimes.
Steve Palmer [00:38:37]:
Look. There but there's phone tracking. I mean, there's a case we're working on. And look at the I mean, look at our report on that. I can prove where my client was. Like, I can prove that he was at his house. I can prove that he is a half mile away. I can prove that he was at his job.
Steve Palmer [00:38:50]:
I can prove that he was he was a police officer. I can prove he's in a police cruiser going around. And it's not just so there's different types of phone tracking. One is called cell tower analysis. And in the old days, we used to look at them like a peace sign. So think of a peace sign with the three quadrants. And in the and when this first emerged, the experts could put you within one of those quadrants Mhmm. Of the tower coverage.
Steve Palmer [00:39:13]:
And then they had, like, per minute call data or something or PCMD that they could start to put you they could start to narrow in on it. And now if you got your GPS activated or location services on your phone and the police get that handset, it's lights out, man. They'll put you right where you were. Mhmm. Then they do something now called geo tracking. So if there's a crime in a vicinity, they're gonna go they're the police will go subpoena cell phone carriers and get information on every cell phone that was pinging in the area of the crime and start checking them off.
Troy Hendrickson [00:39:47]:
But, I mean, you're right. They don't I mean, that's all they have.
Bella Mata [00:39:50]:
Yeah. They didn't find any DNA in his car of any of the victims.
Steve Palmer [00:39:55]:
Did Covert make any statements? No.
Bella Mata [00:39:57]:
No. I don't think so.
Troy Hendrickson [00:39:58]:
It's kinda funny
Bella Mata [00:39:59]:
to assume that
Troy Hendrickson [00:40:00]:
the the pullover video is kinda funny. They, like, they when they think I think they think it's him, they pull him over in, like, Pennsylvania on the way home or something like that. And, like, you should just see his face over. He's with his dad. Dad's like, yeah. It's whatever. Like, I guess he I mean, he might even got pulled over, like, three times, but
Steve Palmer [00:40:13]:
you can just see it
Troy Hendrickson [00:40:13]:
on his face. Like, he's just, like
Steve Palmer [00:40:15]:
He's sweating bullets. Yeah. Yeah.
Troy Hendrickson [00:40:16]:
It's it's like but he doesn't say anything.
Bella Mata [00:40:18]:
Didn't find, like, the knife that he used or
Steve Palmer [00:40:22]:
Ma'am, it's just really weird. I understand what the defense lawyers are doing. I'd be doing the same thing. You're you're mounting a challenge to the sole piece of evidence that that that puts your client there. You know, he's got his DNA on a sheath of a knife that was used. The sheath that fits the that is found at the scene, so presumably to the knife that was used to commit these murders. Mhmm. Yeah.
Steve Palmer [00:40:44]:
I mean, this is it's it's like the thinnest evidence, but it's also pretty solid. Right.
Troy Hendrickson [00:40:50]:
Yeah.
Bella Mata [00:40:50]:
But, apparently, they did find some other blood in the house that isn't identified yet, but it was a man's blood, but it wasn't his. So I guess the defense is arguing it could be another person.
Steve Palmer [00:41:02]:
Yeah. So look. When he's arrested, everybody thinks this guy's guilty. He did it, and it is what it is. But as watch the OJ trial. Go back and watch some of this. And there's a new Netflix special on this too, which is sort of interesting. But, you know, there's a famous I remember watching this live, and Efley Bailey, a famous lawyer at the time, now deceased, was sort of arguing some of this kind of stuff.
Steve Palmer [00:41:22]:
And there was an objection by the prosecutor. Efley Bailey says, judge, am I constrained by the prosecutor's theory, albeit erroneous that there's only one assailant? And, you know, the point is take the take the police blinders off as a defense lawyer and start kicking stuff around. You know, if there's other guys' blood there, that's what we're gonna drive a truck through to defend the case.
Bella Mata [00:41:43]:
Yeah. And I think the defense kinda knew that the probable cause argument with, like, the DNA they found wasn't gonna work. I think they just wanna question literally everything. Because when you have someone on trial for maybe getting the death penalty, if you just put, like, enough doubt in the jury's mind, I don't know if they would
Steve Palmer [00:42:03]:
Well, it's not even putting down the jury's I mean, yes, that's what it's sort of how we look at it. But the the government has to prove beyond a reasonable doubt that Kohberger did this. And and they say they have to prove on each and every element of the charge defenses. So let's say it's murder, and that means you're taking one human life by another with malice of forethought using the common law definitions that you guys know. The the first element of any murder is the identification of the defendant, that he did it. And the police had to prove that. We know a murder happened. We know it was brutal.
Steve Palmer [00:42:37]:
We know it was horrible. We know these people are dead, and we know there's four bodies or however many. I mean, it's awful. They still have to prove identity. They have to prove the suspect, the guy sitting at that table, is the one who did it. Sometimes there are eyewitness identification testimony. Sometimes it's DNA. Sometimes it's fingerprints.
Steve Palmer [00:42:54]:
Sometimes it's some collage of circumstantial evidence, including cell phone location stuff. But they start to prove identity. And, you know, is it is there doubt about identity? Maybe. Maybe. You know, Koberger is now gonna be in a spot where he's got a dis he's got a his lawyers have to deal with the fact that his that Koberger's DNA is on a knife sheath that is found at the crime scene. If I'm arguing the case and it is true that another man's DNA is there, I would say, judge or jury, they want me. And I get it. They're not gonna actually say they want me.
Steve Palmer [00:43:28]:
But what they're really saying is there's no other reason for this man's DNA to be there unless he did the crime. And I would ask, why not them explain why this other guy's DNA is there? Yeah. Why and and, you know, you might be thinking to yourself, well, he the other guy's not well, I get it. But they're the ones that have to prove this beyond a reasonable doubt, not me.
Bella Mata [00:43:47]:
I'm just thinking, like, that DNA could have been, like, on the knife, like, when it was at the store. Like, it could have been the worker or something. I just feel
Steve Palmer [00:43:56]:
like We're gonna we're gonna bring in a DNA expert and do some do some Yeah.
Bella Mata [00:43:59]:
I find that
Steve Palmer [00:44:00]:
so interesting. Because there's a study. Look. There I I can't remember the case, but, basically, people there was a guy convicted of a crime and something similar, maybe his I forget where his DNA was found on coins or something. Anyway, they were able to track it back to an innocent transfer that until the technology emerged, and studies emerged, the guy would have been just guilty as charged. So DNA is not always a slam dunk, because it's gotten so sensitive. And by sensitive, I mean, the DNA testing can identify DNA in the smallest, smallest fragments. And then it not unlike COVID, they cycle it up and create more DNA from a little DNA and statistically try to get a get a profile, and then they match people up.
Steve Palmer [00:44:47]:
Mhmm. So things like laundry in your household. There's been a study that we're relying on a case we're working on where, if you if a family does its own laundry, the stepdad's DNA may be found on the stepdaughter's underwear innocently through transfer of laundry. And so what what the study basically did is it went into a bunch of households where people are not accused of any crimes and started testing articles of clothing, and they found cross contamination of DNA all over the place. And, obviously, the implication is in our situation where alright. Well, then how can you rule out laundry or innocent transfer in our case?
Bella Mata [00:45:24]:
Yeah. That is interesting.
Steve Palmer [00:45:27]:
Alright. Well, that's enough of law school. They don't teach you that in law school. Or is it any other questions?
Troy Hendrickson [00:45:32]:
No. I think I I think that's pretty much it. Kohberger, I'll keep up on it, but Yeah. I imagine.
Steve Palmer [00:45:38]:
Well, let's follow the Kohberger case. Yeah. Because if it is true that you
Bella Mata [00:45:41]:
set for August.
Steve Palmer [00:45:42]:
Maybe what we'll do is we'll we'll do, daily commentary on the trial. But Yeah.
Troy Hendrickson [00:45:45]:
I would love that.
Steve Palmer [00:45:46]:
What because what's going on here? If it is true that there and I don't know all the facts. You guys know more of this than I do. I'm busy. I don't follow all the stuff. But if it is true that Kohberger's DNA the only d the only evidence that links Kohberger to the case is some general cell phone location stuff and a bit of his DNA on the sheet of a knife that was found at the scene. And there's also
Bella Mata [00:46:11]:
They said the car was the same car they were looking for, but
Troy Hendrickson [00:46:14]:
Yeah.
Bella Mata [00:46:14]:
The a big car. White Honda.
Troy Hendrickson [00:46:16]:
So Yeah. It was in
Steve Palmer [00:46:17]:
a white Honda. They were seen leaving the scene. Did they find any blood in the Honda? No. I I thought
Troy Hendrickson [00:46:21]:
it was interesting to have the expert come in, and they were I guess what happens is they had a vehicle expert, and they're like, what car is this? And he's like, I have no idea. Mhmm. And it's from the footage. And they're like, well, how then how does the state say this is a white Hyundai when the
Bella Mata [00:46:35]:
guy messed up the year a few times. Like, there was something weird about the car too.
Steve Palmer [00:46:39]:
Yeah. So this would be an interesting case to watch. You know, it's not necessarily a slam dunk. We don't we may not even have the right guy. Who knows? Maybe they do, but they still have to prove it. So that's, that's where the rubber meets the road. And if it's true that all the that it's a very circumstantial case on the single element of identity, it could get interesting. It's a lot like the OJ case that one.
Steve Palmer [00:46:58]:
Yeah. So I
Troy Hendrickson [00:46:58]:
would say that if the sheet did get I don't think it will get suppressed. But if it did, like, I don't think they're, like, the sheet
Steve Palmer [00:47:04]:
can't get this to get suppressed. Look. So here's look. If a Holberger is gonna claim that he's not the murderer and he was never there and the knife isn't his, he's got no reasonable expectation of privacy in the search of the sheet. He he's got no reasonable expectation of privacy in the DNA database. He's He's got no reasonable expectation of privacy or standing for DNA database or parents' trash. And so it really comes down to whether the search warrant produced enough probable cause to search Yeah. Kohberger's house where they got his DNA, and his DNA happened to match what was found on the sheet.
Steve Palmer [00:47:36]:
Now the question becomes, so what? Does that mean he committed the crimes? And
Bella Mata [00:47:41]:
I think they were also arguing that, like, the database they've used isn't reliable. So, like, to use that evidence in court is, like, setting a dangerous precedent.
Steve Palmer [00:47:52]:
Yeah. Yeah.
Bella Mata [00:47:53]:
I don't know.
Steve Palmer [00:47:53]:
Fair enough. That's an admissibility of evidence question, a little bit different. So the judge will inevitably rule this way. That goes to the weight, not the admissibility of the evidence. In other words, the defense can say, look. This is inherently unreliable because the way the database is kept doesn't meet any forensic standards whatsoever. And the jury's gonna that's gonna go right over their head. They're They're not gonna buy it.
Steve Palmer [00:48:17]:
I Yeah. I I would I would almost challenging whether it's it's co Kohlberger's DNA, I think that's a debt that's a pretrial issue, not a trial issue. I think they're gonna have a they're gonna be hard pressed
Troy Hendrickson [00:48:29]:
Yeah.
Steve Palmer [00:48:29]:
Unless they have an expert, that can somehow mount a challenge on the comparison in the DNA testing, which maybe I don't know. Every now and then, you get that.
Bella Mata [00:48:40]:
I guess they have an unidentified witness they have that's supposed to testify. That'll be interesting. I wonder if it's, the roommate, the one that lived.
Troy Hendrickson [00:48:50]:
I imagine it would be. But, like, I when everything I saw weird. On her is, like, she couldn't really see or didn't think any of it. She was, like, either tired or hungover or something. It was the middle of night. She didn't think anything of the person.
Bella Mata [00:49:00]:
But she said she, like, saw a figure and then, like, just went back to bed.
Steve Palmer [00:49:03]:
Oh, an eyewitness at the scene. Yeah. One Well, it was,
Bella Mata [00:49:06]:
like, the one roommate that survived.
Steve Palmer [00:49:08]:
Man. A horrible case. I mean, awful. So look. I mean, we we should it's it's worth saying. We talk about these things sort of I call it clinically and for legally speaking, but it's still tragic. You know, people died, and it's awful. And, you know, people would ask me, how can I represent these horrible, awful people? Well, it's our job, and it's what we do.
Steve Palmer [00:49:22]:
But, it's not lost on me. I'm sure not you folks that that, that this was a horrible crime. It just is. But put in our system, I still have to prove it. Alright. They don't teach you that in law school, at least not like the way we teach it here at lawyertalkpodcast.com. If you got a topic you want us to cover or please comment on the Kohberger stuff, I'm sure the collective out there knows more about the facts than we do, but we're gonna keep, following it. We're gonna zero in on it, maybe do some stuff when it's actually going to trial.
Steve Palmer [00:49:51]:
And, that way, we can, share real time thoughts. So, anyway, this is Lawyer Talk podcast off the record on the air. They don't teach you that in law school, at least not till next week.