Defense attorneys argue the Idaho state Constitution sets the standard of proof for a grand jury at beyond a reasonable doubt. But the grand jury in the case against Kohberger was given the lower standard required for an archaic process called a presentment, which requires a preliminary hearing. In turn, failing to properly instruct the grand jury is grounds for a dismissal of the indictment, the defense argues.
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Idaho's criminal procedure law defines a presentment as a formal statement by the grand jury indicating to the court a crime has been committed, and there are "reasonable grounds" that the person named in the presentment committed the crime.
In comparison, an indictment - under Idaho law - is a written accusation presented by the grand jury "charging a person with a public offense."
Kohberger's attorneys argue the indictment should either be dismissed or be treated as a presentment and have a preliminary hearing. They acknowledge in the motion that the "Defense recognizes that the whole of modern jurisprudence on this issue is against it."
Prosecutors, on the other hand, have filed a motion asking a judge to compel his defense team to share information about his potential alibi.
The state's filing on Thursday came days after attorneys for Kohberger suggested he was not at the location where the crimes took place.
SEE ALSO: Idaho college killings: Prosecutors dispute DNA could have been planted at scene
Kohberger faces four counts of first-degree murder in the Nov. 13 deaths of 21-year-olds Kaylee Goncalves and Madison Mogen; and 20-year-olds Xana Kernodle and Ethan Chapin, who were fatally stabbed in their off-campus home in Moscow, Idaho. A not guilty plea has been entered on his behalf, and his trial is set for October.
Prosecutors requested in their motion that the defense provide information on the specific place or places where Kohberger claims to have been during the time of the crimes, as well as the names and addresses of all witnesses they plan to use to establish an alibi.
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"It is important to note that the scheduled October 2, 2023, jury trial is barely more than two (2) months away," the court filing says. "If the Defense intends to rely on alibi, it is essential that they be required to provide prompt notice so the State can fulfill its obligations under Idaho Code $19-519(2) to investigate and respond to the Notice of Alibi. Any further delays will substantially prejudice the State's rights."
Prosecutors also requested the defense be required to provide the information within 10 days of a potential court order, according to the motion.
"Evidence corroborating Mr. Kohberger being at a location other than the King Road address will be disclosed pursuant to discovery and evidentiary rules as well as statutory requirements," defense attorney Anne Taylor wrote in a court document filed Monday.
"It is anticipated this evidence may be offered by way of cross-examination of witnesses produced by the State as well as calling expert witnesses," the filing stated.
Kohberger "stands firm" on his constitutional right to silence as well as to testify on his own behalf, his lawyers said.
The students' killings rattled the small Idaho college town of Moscow and have been the focus of a lengthy investigation.
Kohberger, a graduate student from nearby Washington State University, was arrested seven weeks later at his parents' house in Pennsylvania.
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Defense files additional motions
Attorneys representing Kohberger filed two additional motions this week.
One requests a stay of the proceedings, claiming prosecutors failed to comply fully with Title 2 of the Idaho code, which governs requirements for convening trial juries or grand juries.
A sworn affidavit filed under seal in conjunction with the motion outlines the specifics of the allegations, according to the motion, but attorneys cite selection of jurors and jury questionnaires as issues of concern.
"Further, other irregularity exists within the grand jury process and further investigation is necessary to determine the impact, if any, in the convening of this grand jury," the motion says.
They also filed the motion requesting a dismissal of the indictment against Kohberger.
Due to a wide-ranging gag order, prosecutors, defense lawyers, and attorneys for victims' families and witnesses are prohibited from saying anything publicly, aside from what is already in the public record.
The video in the player above is from an earlier report.
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