A few have expressed interest in, and others without directly asking have demonstrated a need for, an explanatory post about the basics of discovery in a lawsuit. What follows is just that. So if you aren’t interested in a boring general post about discovery from prentb, now’s your chance to back out. Discovery is a broad field, and this is not intended to cover everything. Feel free to ask me any questions you have and I’ll do my best to get a good answer to you promptly. As I’ve said to several on here, I am an American civil attorney, not a criminal attorney, and not in Idaho. So I understand the basics of discovery but I lack the nuanced knowledge an attorney practicing in Idaho and/or in criminal law would have relevant to this case.

This post will refer frequently to the Idaho Criminal Rules, which I will abbreviate as “ICR”. You can find them here: https://isc.idaho.gov/icr And that is where we begin. The Idaho rule that governs discovery in a criminal case is, first and foremost, ICR 16. It imposes a few different requirements that we are interested in.

I. Prosecution’s discovery obligations under ICR 16(a) and (b)

The first, in ICR 16(a), dictates what the prosecution needs to disclose to the defense “as soon as practicable after the filing of charges against the accused.” This means that the prosecution must turn this information over without receiving a written discovery request. Specifically: “any material or information in the prosecuting attorney's possession or control, or that later comes into the prosecuting attorney's possession or control, that tends to negate the guilt of the accused as to the offense charged or that would tend to reduce the punishment for the offense.” This is also referred to as exculpatory information.

ICR 16(b) gives a list of items the prosecution must disclose to the defense upon receiving a written request for discovery. It’s a long list with several subparts, so I won’t copy it all here, but it covers, in general: (1) relevant written or recorded statements of the defendant; (2) the defendant’s prior criminal record, if any; (3) documents or tangible objects that are (a) material to the preparation of the defense, (b) intended for use by the prosecutor as evidence at trial, OR (c) were obtained from the defendant; (3) reports of examinations and tests made in connection with the case; (4) a list of all persons who may be called by the state as witnesses at trial and a list of prior felony connections of any of them as well as any statements any of these witnesses made to the prosecution; (5) a written summary or report of expert testimony that the prosecution intends to use at trial or a hearing (experts are used to testify about subjects that require an expert to interpret them for a layperson, like cellphone data or DNA, as opposed to basic facts like what somebody saw or heard at 1122 King Rd. on the night of the murders); (6) police reports made in connection with the case; and (7) digital media related to the case.

The defense must make a written discovery request for the information in ICR 16(b), otherwise they are not entitled to it. So, what does a careful defense attorney do in preparing their case? Make sure they request everything relevant that they can possibly think of so as to not be told later that they failed to ask for it and are not entitled to it.

II. Defense’s discovery obligations under ICR 16(c)

The defense also has discovery obligations once they receive a written request from the prosecution. These are listed under ICR 16(c), and they cover many of the same areas as ICR 16(b), like: (1) documents and tangible objects the defense intends to use at trial; (2) reports of examinations and tests in connection with the case that the defendant intends to use at trial; (3) a list of witnesses that defendant intends to call at trial; and (4) a written summary or report of expert testimony that the defense intends to use at trial or a hearing.

III. What does a discovery request look like and how long does the receiving party have to respond?

ICR 16(e) dictates that a discovery request, which is necessary to obtain the information in 16(b) (from the prosecution) or 16(c) (from the defense) must be in writing, filed with the court, and also, of course, given to the other party. A party can make as many discovery requests as they like. We see this with the Defense’s now 15 discovery requests in this case.

ICR 16(f) governs responses to requests for discovery. It provides that a party has 14 days after being provided with a request for discovery to either (A) state that the receiving party has already given the requested information to the requesting party, (B) state that the receiving party will provide the requesting party with the information “at a time and place certain”, or (C) object to the requests provided.

As you can see, there is some wiggle room built into these response requirements. If the receiving party hasn’t already provided the information requested, it can, under (B), respond in fourteen days that it will provide the information requested in, say, 30 days. Or it can object to the discovery request within fourteen days of receiving it under (C) and do nothing further at that time.

IV. What kinds of objections can a receiving party make to a discovery request?

Have a look at the State’s response to BK’s first discovery request in here: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/012323 States Response to Request for Discovery.pdf

The State first explains in paragraphs 1-10 that it has provided a list of things that should look familiar if you have read the above, like written statements from BK, BK’s prior criminal record, tangible objects and documents related to the case, etc. Bear in mind that the prosecution is not saying all of these items necessarily exist. It is simply acknowledging its discovery obligations and its compliance with them, in the event it has any of the required information.

Then, in paragraph 11, the State says “[t]he State objects to requests by the Defendant for anything not otherwise addressed above on the grounds that such requests are outside of the scope of I.C.R. 16 and/or are not subject to disclosure under ICR 16(g) (work product and informants).”

So, a party can object to a discovery request by responding that the request seeks information that is outside the scope of what ICR 16 requires the party to provide. Additionally, ICR(g)(1) and ICR(h) dictate that work done by the attorneys, whether that is legal research or memoranda or communications between attorneys and their clients, does not need to be disclosed to the other side. This is what is commonly known as attorney-client privilege or attorney work product protection. ICR(g)(2) provides that the identity of informants does not need to be disclosed in discovery UNLESS that informant is going to be used as a witness at a hearing or trial.

An alternative way to object, which was utilized by the State in this case, is to make a motion for a protective order (https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/061623 States Motion for Protective Order.pdf). This is a way of asking the Court to preemptively rule that a party does not have to respond to a certain type of discovery, as a more efficient way of dealing with an expected issue than receiving and objecting to many discovery requests on the topic. In this case, the State sought a ruling from the court that the State did not need to provide information to the Defense related to the genetic genealogy research performed by investigators in this case.

V. What happens if a party does not respond to a discovery request on time or does not respond to the satisfaction of the requesting party?

First, ICR 16(f)(2) provides that, unless a party has good cause, if they do not respond to a discovery request in 14 days, they (i) waive any objections that they could have made to a request, and (b) they may face sanctions by the court.

But you may be thinking to yourself, a party can simply object within 14 days of receiving a request that whatever they were asked to provide is outside the scope of ICR 16 and that constitutes a “response” under ICR 16(f). What happens then?

Well, the requesting party can do nothing, and they will continue to receive nothing. Otherwise, if the requesting party really believes that what they asked for should be provided to them under ICR 16, that is when the requesting party files what is called a “motion to compel”. We have seen five of those from the Defense so far in this case. The most famous of these was, perhaps, the defense’s Third Motion to Compel (https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/062323 Defendants Third Motion to Compel Discovery.pdf), which dealt with the genetic genealogy research performed with BK’s DNA that was found on the sheath at the crime scene. As shown in the motion, the State refused to comply with the Defense’s 3rd Supplemental Request for Discovery, and the Defense asked the court to compel the State to comply with its discovery request.

This underscores the difference between a request for discovery and a motion to compel, which has proven confusing to some. The Defense’s fifteen supplemental requests for discovery in this case are not for the same items again and again. They are all for new items that the Defense wants to see, or make sure that they ask for so that they cannot later be said to lack entitlement to see them. Discovery is an ongoing process. As a party receives more information through discovery, they may have additional questions about what they are receiving, which in turn generates additional, supplemental discovery requests. It is only when a party refuses to comply with a discovery request that a motion to compel may be filed. When a motion to compel is filed, the court will consider at a hearing whether the information requested is really required to be provided under ICR 16, or whether the party receiving the discovery request had a valid ground for objecting. If the court finds that the information requested should be provided under ICR 16, it will order a party to provide that information. If the court finds that the party was withholding information in bad faith, it may go further and impose sanctions on that party, like prohibiting them from introducing the requested information into evidence at trial. On the other hand, if the court feels that the information requested is outside the boundaries of ICR 16, it will deny the motion to compel.

VI. What about information in possession of the FBI?

A bone of contention in this case has been the State’s obligations with regard to information in the possession of the FBI. Let’s return to ICR 16(a) and (b) which, as you recall, govern what the prosecution has to produce without receiving a discovery request (subpart a) and in response to a discovery request (subpart b). Subpart (a) specifies that the “prosecuting attorney’s obligations under this paragraph extend to material and information in the possession or control of members of the prosecuting attorney’s staff and of any others who have participated in the investigation or evaluation of the case who either regularly report, or have reported in that case, to the office of the prosecuting attorney.” Subpart (b) has similar limiting language throughout. For example, (b)(4) and (5) deal with documents/tangible objects and reports of examinations/tests “that are in the possession, custody or control of the prosecuting attorney” or “the existence of which is known or is available to the prosecuting attorney by the exercise of due diligence.”

The question is, then: is the FBI an entity who has participated in the investigation or evaluation of the case who regularly reports or has reported to the office of the prosecuting attorney? Are reports created by the FBI known or available to the prosecuting attorney by the exercise of due diligence? If so, documents in the possession of the FBI should be part of the universe of documents that the prosecution has to turn over in response to discovery requests, if they are otherwise covered by ICR 16.

The State tried at least once to argue that it does not have control over records in possession of the FBI, in its reply in support of its motion for protective order (https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/071423 Reply In Support of Motion for Protectiive Order.pdf). It said on page 6 “the State does not possess the FBI’s records related to IGG.”

The court shut that argument down in its October 25, 2023 Order Addressing IGG (https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/102523-Order-Addressing-IGG-DNA.pdf). On pages 25 and 26 of the order, it cited an Idaho Supreme Court case and explained that “the FBI was working in conjunction with the Moscow Police Department and the Idaho State Police to investigate the homicides. From the Court’s understanding, the FBI set up a public tip line, conducted the IGG analysis, identified the suspect car as a 2011-2016 Hyundai Elantra, and possibly aided in interviewing witnesses outside of Idaho. The FBI was indeed a law enforcement agency acting as an arm of the prosecution to investigate this case. Thus, the FBI’s records pertaining to its work on this case are records within the possession, custody, or control of the prosecutor for the purposes of discovery.”

VII. So what about the final draft of the FBI CAST Report?

We see above that the court considers the FBI’s records to be within the possession, custody, or control of the prosecution, and therefore required to be provided by the Prosecution in response to a proper discovery request, so what’s up with that final draft of the CAST Report that the prosecution seemingly won’t provide to the defense?

Let’s look again at the State’s response to the Defense’s first discovery request: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/012323 States Response to Request for Discovery.pdf

Notice how every response ends with a variation of the phrase “The State has complied and will continue to comply…”?

Specifically, paragraph 4 states that “Any…documents…which are in the possession, custody, or control of the prosecuting attorney…have been or will be disclosed or otherwise made available,” and paragraph 5 states that “Any results or reports…made in connection with the particular case…within the possession, custody, or control of the prosecuting attorney…have been or will be disclosed or otherwise made available.”

The Defense, in turn, has done the same. In its response to the State’s first request for discovery (https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/013023 Defendants Response to Request for Discovery.pdf) it stated that “When available, the Defendant will provide the names and addresses of any additional witnesses who will be called at trial on behalf of the Defendant” and, of course, in the much-discussed responses to demands for alibi (e.g. https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/072423 Notice of Defendants Response to States Alibi Demand.pdf) that “Mr. Kohberger’s defense team continues investigating and preparing his case. Evidence corroborating Mr. Kohberger being at a location other than the King Road address will be disclosed pursuant to discovery and other evidentiary rules as well as statutory requirements.”

Why do they word discovery responses like this? Because the investigation does not stop when the State gets a suspect in custody, and nor does the preparation of the defense, obviously. As we’ve seen, once they have a suspect in custody, the State has better access to the suspect’s various devices, domicile(s), and other possessions, so the State contemplates that it will continue to obtain additional relevant information and hand it over to the defense as the case progresses. So yes, the court has put its finger on the scale and found that FBI documents are in the possession of the State and must be turned over to the Defense in response to proper discovery requests. But if the FBI has not finalized the CAST report yet, or has not made said version of the report available to the State, it may not yet be “in the possession, custody, or control of the prosecuting attorney.”

VIII. What is the relationship between the 14-day response deadline for a discovery request and the discovery deadlines in the court’s February 29, 2024 Order Setting Deadlines?

So we know from the above that under ICR 16(f)(2) a party receiving a discovery request must respond or object within fourteen days. So what’s up with the court saying in its February 29, 2024 Order Setting Deadlines (https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/2024/022924-Order-Setting-Deadlines-Hearing.pdf) in paragraph 3 that the “deadline for the State’s discovery to be turned over to the defense is September 6, 2024” and in paragraph 4 that the “deadline for the defense’s discovery to be turned over to the State, including mitigation, is January 9, 2025”?

This does not mean that the State and the Defense can now postpone responding to discovery requests at all until the deadlines in this order. Rather, it means that if the State or the Defense produce required documents to the other side after these dates, they’d better have a good reason for why they didn’t produce them before, or they may not be able to use them at trial or be otherwise punished. For example, if a “final” draft of a CAST report comes out after this time, the Prosecution will likely have a hard time being allowed to introduce it or new findings contained in it into evidence at trial.

IX. Is it normal to have this many requests for discovery and motions to compel?

We see this question crop up a lot. The requests for discovery in this case are under seal, so we do not know how many items the Defense is requesting with each supplemental request. See, for example, the Defense’s 1st Supplemental Request for Discovery: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/020323 Defendants 1st Supplemental Request for Discovery.pdf

The requests themselves are contained in Exhibit A, which we cannot see. Exhibit A could contain 100 requests, or it could contain 10 requests.

We can get a vague idea of the number of requests involved from the Motions to Compel. For example, Defendant’s Fourth Motion to Compel (https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/2024/031224-Defendants-Fourth-MTC.pdf) states that it seeks to compel responses to discovery request nos. 219, 224, 226, 227, 228, 242, 243, 245, 248, 249, 250, 251, and 258. Is this a lot of requests for a capital murder case involving analysis of cell phone location data over the course of half a year, social media, browsing history, texts, emails, etc. of the suspect and the victims, purchase history, DNA analysis, IGG, autopsies, traffic and Ring camera data, investigation into other suspects by multiple law enforcement agencies, other tips and leads, items uncovered from of the suspect’s various domiciles and vehicle, and additional things that I’m sure I am not thinking of? I’ll leave it to you to decide.

For comparison’s sake, you can go to this link: https://portal-idaho.tylertech.cloud/odysseyportal/Home/Dashboard/29

Type CR35-21-6092 into the search bar and (unless you are a robot and honest about being one) you will see the docket sheet of another recent Idaho capital murder case against Richard B. Ross, who was represented by some familiar defense attorneys, who provided him a robust defense complete with supplemental discovery requests and motions to compel. That defendant ended up taking a guilty plea in exchange for avoiding the death penalty after approximately 800 days. In comparison, it has been approximately 540 days since the case against BK was filed.

X. Why doesn’t the State just hand over everything if they are confident in their case?

It may not seem like it from my positions on this case thus far, but I too favor liberal disclosure requirements on the State. That said, if we as a society put any value in the incarceration of violent offenders, there must be some restraint on the scope of items that a jury is allowed to see, and the amount of items the defense is allowed to require the prosecution to gather up and produce. I assume that most posters that suggest that the prosecution should be required to turn over “everything” would not be in favor of allowing the defense to see, for example, all private text messages between investigating officers and their friends and family? Such discovery could certainly reveal biases that might have affected the investigation into BK. ICR 16 is the balance that Idaho has established (and is analogous to all state and federal discovery systems that I am aware of) to provide the Defense necessary information to prepare a robust defense of BK, while allowing the Prosecution to attempt to fulfill its duty of getting dangerous individuals off the streets if they are able to be convicted beyond a reasonable doubt.

It is much easier to find dockets for federal cases than state cases online. The following link is the docket of United States v. Tsarnaev in the United States District Court for the District of Massachusetts: https://www.courtlistener.com/docket/4275182/united-states-v-tsarnaev/?page=1

The defendant in that case is better known as one of the Boston marathon bombers. Dzhokhar Tsarnaev was caught on camera at the bombings, subsequently involved in a shootout with police before being captured, and had an uncle appear on television and plead that he turn himself in and “ask for forgiveness”. Tsarnaev wrote a note claiming responsibility for the bombings before he was captured and acknowledged his role in the bombings after he was captured. He was found guilty on thirty counts and sentenced to death. Nevertheless, you will see at least three motions to compel on behalf of the defendant on that docket, by my count. Was the government not confident in its case?

XI. Conclusion

We are all assiduous followers of a capital murder case in a time of unprecedented availability of digital and biological information that could be relevant to the proceedings. We are not privy to the majority of the specific requests of the Defense as they prepare to do their crucial work on behalf of a young man accused of extremely grave offenses. In my opinion, they could be forgiven for overstepping the boundaries of ICR 16 in trying to get all information possible to help formulate a defense, if indeed they have overstepped in their requests. I also sympathize with the Prosecution in doing everything they can to secure a conviction and some measure of justice, as our society measures it, for four amazing young people that did nothing to deserve the fate they were dealt. Like other American legal mechanisms, the discovery rules were designed by people that could not possibly contemplate the breadth of information we have available today, so there is some room for debate and gamesmanship as new issues arise. But unless you can come up with a better system that the majority of folks will accept (and good luck getting a majority consensus on the most basic of matters of governance in America today), this is what we have to work with.