Preliminary Hearing — Day 4 (July 9, 2026) (Part 1 of 2)

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Preliminary Hearing — Day 4 (July 9, 2026) (Part 1 of 2)
Court proceeding — State of Utah v. Tyler James Robinson (Case 251403576, 4th Judicial Dist. Ct., Utah County). Transcript is the YouTube auto-caption track of the Court TV feed (https://www.youtube.com/watch?v=89ZKQIHaJpM) — verbatim ASR, not a certified court transcript.

Good morning. Thank you for the party's patience. Court is now in session. State of Utah versus Tyler James Robinson. Council, please enter your appearances. Chad Grunander, Ryan McBride, Lauren Hunt, David Sturgil, Chris Ballard for the state, uh, County Attorney Jeff Gray also present. Good morning, your honor. Kathy Nester, Richard Novak, Michael Bert, and Stacy Visser here for Mr. Robinson, who's seated at council table. >> Good morning. >> Good morning, Mr. Robinson. And for the record, the court also recognizes the presence of Miss Erica Kirk. All right. As uh you've probably come to expect, I do need to read the following as it relates to today's preliminary hearing. The court is mindful of the safety and well-being of all parties, council, witnesses, court staff, and members of the public who may be present. The court is also mindful of its duty to protect and uphold the constitutional rights of both Mr. Robinson and Miss Kirk, to serve those important interests. The court reminds all persons who will be in attendance that portable electronic devices will not be permitted in the courtroom or on And this prohibition does not apply to legal counsel and support staff for the defense or the state or the media in in this manner or the equipment permitted under any electronic uh controlling electronic media coverage order and includes uh the council for victim representative Miss Kirk. I do ask the parties uh the attorneys if you will join me in turning off your ringer to ensure that we do not have any interruptions. So I am turning off my ringer uh and I invite you to do the same. Every person who is in attendance today and every day will be afforded the dignity and respect due to them and pursuant to uh the standing decorum order by the court all spectators shall be quiet, civil and orderly. Spectators shall not engage in any distracting, disruptive, provocative, disrespectful, univil or threatening behavior of any kind. Spectators shall not make any audible comments of any kind. shall not shake or nod their heads, shall not otherwise make any gestures during the hearing. Spectators shall not wear or display pins, buttons, signs, clothing, or photographs expressing support for or against any person related to this case or the status of this case as a capital offense. As we begin this morning, I uh wish to um I' I've taken a lot of time to think about the comments made by the parties yesterday uh and and I and and there were additional briefings and a motion filed uh last night and the court took the necessary time to readress it and look at it and be prepared for this morning's proceedings. Uh while I recognize especially how precious our time is, I also recognize that I need to be prepared uh for everything that's before me. And I took the time this morning to review what was filed since uh we adjourned yesterday until we've came back on record. One of the motions filed last night was filed by uh Miss Erica Kirk's uh attorney and I wish to address that and I realize that the parties may not have had a chance for defense or prosecution had a chance to respond to that. Uh and and before I address that, I I wish to turn the time to you if you need the benefit of the record as it relates to what was filed by uh the attorney for victim >> Good morning, your honor Christopher Ballard on behalf of the state. Uh we have reviewed that filing and we believe that it fully accords with our position in our filing this morning that uh publishing exhibits to the courtroom uh is entirely appropriate and indeed um honors the victim representatives right to be present in this at this hearing. >> Thank you, Mr. Ballard. To defense, Mr. Novak. Thank you, your honor. Um, I read the I read the pleading. Um, I believe that every order that this court has made to date complies with and respects um the victim's rights under the Utah Constitution. I think that the rulings that the court has made the last few days do so. And I don't believe that the issues that are presently before the court going forward with the hearing um with respect to exhibits in what I'll just call the 16 series um interfere with any of the enumerated rights uh set forth um in the Utah Constitution concerning uh the rights of a victim representative in any criminal proceeding. Um, so that's our position. And I want to also be very mindful of timing issues because we spent a lot of time arguing without the court having the benefit of briefing yesterday. Um, but we have witnesses we have to get to, including a defense witness who is not available after tonight. So, um, I could of course, as your honor knows, say much more. Um, but the court has all the briefing and I think we should move forward. >> Thank you. And as it relates to transparency and publication, uh, does the news media wish to be heard on this issue? >> Only briefly, your honor. Um, I've also reviewed the submission from yesterday. The court has always set this three-step process and I think taking each of those stages admiss admissibility publication to the courtroom and uh coverage by the in court cameras are three separate um inquiries. Uh of course the media believes the media will be the party who stands here at this uh lectern and says we believe we should see as much as possible. maximalist in that way while recognizing the the importance of protecting all the rights including fair trial rights. Um but the idea of publishing something of keeping something off of the cameras at the rear of the courtroom but publishing it to to those who are present here also is a meaningful step towards transparency. Um, and to the extent that the court is not comfortable with placing something on the video feed, um, the media does believe that allowing the the media representatives who are here and the members of the public who are here to view that, um, even if those watching on the live stream cannot, is a meaningful victory for transparency and we of course support that. >> Thank you. >> All right, your honor, the state would like to be heard on the briefing briefly. for >> the briefing that was submitted last night. >> All right. So, I want to address the the motion filed by um the attorney for the victim representative and then we'll transition to that. I'm just trying to do it incrementally so we can get it all addressed. So, in regards to that, and I appreciate the position of the parties, it is important for me to hear all sides. Article 1, section 28 of the Utah Constitution recognizes important rights afforded to victims and victims representatives, including the right to be treated with fairness, respect, and dignity, and the right to be present and heard at critical stages of the proceedings. The court acknowledges the concerns raised in the motion regarding transparency and the ability to meaningfully observe the evidence presented during this hearing. At the same time, the court has an independent obligation to manage these proceedings in a manner that safeguards the rights of all parties that includes honoring the rights of victims and victim's representatives while preserving the defendants's constitutional rights, including the right to a fair and impartial process. The court has considered the request that exhibits be displayed in real time to the courtroom. After careful consideration, the court determines that not all exhibits will be visually displayed to the gallery and notes that it will use a tiered method as described. First, whether it will be admitted to the court for consideration as it relates to probable cause. Second, whether it will be displayed only to the gallery, and third, if it will be published uh through the camera uh to This ruling is not intended to diminish the significance of the victim's representative rights or concerns. Rather, it reflects the court's responsibility to regulate the presentation of evidence in a manner consistent with the integrity of the proceedings and the fair trial rights implicated in this manner. The manner in which evidence is displays displayed remains in the court's discretion. That discretion must be exercised in a manner that is appropriate and appropriately balances Miss Robinson's constitutional rights. I'm sorry, Mr. Robinson's constitutional rights, Miss Kirk's rights as a victim representative, and the court's obligation to conduct the proceedings that are fair, orderly, and appropriately transparent. Transparency is an important principle, but it must be maintained in a manner consistent with the constitutional rights and protections afforded to all parties. The court does not make a blanket ruling as it relates to any exhibit, and as previously stated, each exhibit will be afforded its own due in weighing whether it shall be published to the courtroom or beyond or not. And that concludes the court's ruling on that motion. All right, council. The last U matter um as it relates to the briefing. I I'll hear that and and there is a slight edit to uh and I'm not sure when uh the state wishes to publish states exhibit 16. So turning to the state, do you wish to be heard about your the the motions filed last night prior to the publication of exhibit 16? Again, it it's your it's your choice on how you move forward. I just want to see which order you want to go. >> Uh we do want to be heard on the briefing uh from last night and and specifically about exhibit 16. I'm understanding your honor has an additional uh edit to that. Is that correct? do and there might be value in hearing that so that may or may not change your positions. Uh so let me just put that on the record and then I'll hear from you. I I just want to make sure you're you're able to be afforded everything. So, as it relates to the the last night, um, I believe it was between 6 minutes and 57 seconds and 20 minutes and 29 seconds, which is, uh, not to be played. And then 32 minutes and 55 seconds to 35 minutes and 47 seconds, which is not to be played. And I believe that what I received reflects that. And does that is that the understanding of the parties? >> Yes. >> All right. The state has said yes to the defense. >> I'm not saying if you agree with it. I'm just saying does it reflect the time stamps. May I have a moment? >> Absolutely. Go ahead, judge. I think your honor, and then let's just see what the court is referring to. >> Well, I I I'm asking, did you receive a copy of the edited video? >> Okay. So, I'll ask answer that question directly. Um, the state sent us a copy of the edited video. the redactions of the audio were exactly as the court ordered, but we noticed that the video which followed ended up being inconsistent with the redactions of the audio. So, I brought that to the state's attention last night. I believe that they ultimately forwarded to the court what I'll call version two of the redactions which redacts the video um that would have made the audio redactions sort of um superfluous or or ineffective. So that's sort of where we are. Um but I don't I we may be not communicating with each other about the same issue. I'm not sure. >> Well, okay. I just want to make sure that in regards to what was to be cut out comports with those timestamps I just gave. >> It does. Plus, the parties believe that additional video needed to be cut out to match the court's intentions with respect to the audio. >> Right. And that's and this is what I'm going to next. Mr. Ballard. >> Yes, your honor. I I think we're on the same page. We did in conjunction with discussions with the defense prepare first of all we prepared the redacted video as your honor ordered. Then after discussing with the defense we prepared a second version that uh still maintained the audio redactions as the court ordered but we took out the video portions that the defense uh brought to our attention. >> All right. and and I didn't see that, but here in this and this is and this is the court's own independent uh finding after spending significant time last night reviewing it. So I'm requesting a video only redaction between 20 minutes and 29 seconds and 25 minutes and 23 seconds. Uh and so what I looked at was what was on screen. So, any video showing anything other than um Mr. McBride and Lance Twigs was to be redacted with the exception of uh the screenshots of the images pulled from the surveillance video and the FBI uh bulletin, which I believe was also briefly displayed. I think we're all on the same page based on what the court >> Your honor, I think we have just a 1 second difference. uh our time stamp is 2522 of the the additional edited version, but I think it still omits uh the video portion that that we're discussing. >> All right. Well, it is a good day when we are literally on the same page. I I'm glad that within one second we are all in agreeance agreement about this. So that the court and it sounds like you're one step ahead of the court. I would is going to say that if you had it, you simply turn off the monitor for that section. But if you've already made that change, then then all the better. There are two additional changes as well. And this is very short and so I'll leave it to the state if you wish to just in real time pause and fast forward or wish to redact it, I'll leave it to you. Uh so the additional requested audio and visual redaction. So this is not to be played whatsoever is 27 minutes 18 seconds to 27 minutes and 25 seconds. And the second is 28 minutes and 11 Your honor, just to make sure that we've we've got that correct, uh the additional redactions would be 27 minutes and 18 seconds to 27 minutes and 25 seconds. and then 28 minutes and 11 seconds to 28 minutes and 18 seconds. Yes. And your honor, while we're talking about additional redactions, When your honor made his ruling uh yesterday afternoon, it wasn't entirely clear the basis for these redactions that the court proposed. Uh the state's understanding was that those additional redactions were based on uh the potential that the video 1102 would be showing uh duplicative evidence and of would be displaying evidence that would be duplicative of future exhibits. Uh and then also potentially a concern about admissions by the defendant. um portions that the court has ordered to be redacted uh do not have any of those concerns uh as far as the state's uh view of that evidence. And I I would like to be able to point the court to those. We've got two brief portions that we believe don't implicate those concerns and should not be redacted. >> All right. >> Uh does your honor have the the transcript? first of all, uh, at the very very bottom of page 10, uh, beginning with the words was he and then over to page 11, That portion is not cumulative of additional exhibits and it contains nothing that could be uh classified as a an admission by the defendant. That's the first portion. So, going back to page 10, I don't see was he at the bottom? Where where are you? How many lines from the bottom up are >> Oh, I see. Right here. Okay, now I see what you're saying. I missed that. I was looking at the beginning of the line, but I see your point. Okay. So from was he on page 10 until 16 the time stamp 1646 on page 11. >> Okay, that's the first portion. And then the second portion that we would ask not be and it begins um let's see it would be the fifth paragraph down Mr. McBride stating okay and then ending at time stamp 3340. Again, that's not cumulative of any uh anticipated exhibit and nor does it refer to any um admission by the defendant. >> Thank you, your honor. Um, with respect to the first of the two portions that Mr. Ballard referenced. Um I want to be totally transparent with the court of course that that was not a section that we asked the government to agree to redact. That is a section that the court independently determined was appropriate for um redaction under the various uh principles that the court has annunciated. So I just want to be transparent about that. >> Thank you. um the second portion that Mr. Ballard addressed which is on page 19. We did suggest um and it is in our um highlighted redacted transcript. >> See that >> um and the court agreed with us um this This is um I don't I don't understand how this questioning by Mr. McBride and the answers to these questions by Mr. Twigs. And now I'm going to quote the Utah rule of evidence has any tendency and reason to make a fact of consequence more or less true. That's the relevance question. So I understand that the court has said I can make determinations of which portions of this transcript to rely upon but from my perspective what the state is asking the court to do is to broadcast a portion of the transcript which we are saying is not relevant and to the extent it has any relevance is significantly outweighed um by undue prejudice. All right. I am not Mr. Twig's representative, but I think there might be something that Mr. Twix's council would want to say about this as well. I don't know what it would be, but my firmly held belief is it would be consistent with what I'm saying, which is that it is neither relevant nor probative of anything of significance, especially in compared to undue prejudice. >> Thank you, your honor. >> Thank you, your honors. Mr. Novak recognized Mr. Twigs was represented at the during this statement. He uh his council knew that this was being prepared to uh to be produced in court and his council made no objections to this part of uh of the interview and this is critically relevant. Uh it provides important foundation uh foundational information about Mr. Twigs and um identifying information about him and then also it's very relevant to uh the enhancement that we have charged. All right. Thank you. Anything further before the court rules on these All right. In reviewing uh the first section again citing to page 10 and I know it is to anyone listening this may not make sense when I'm saying page 10 but it's it's roughly uh just a few seconds after 1539 on the video. uh starting with was he and ending at 1646 at the last word asking after hearing and considering what has been argued. Uh the court agrees that this uh in applying um a balancing test and as it relates to transparency to ensure the court is taking a very narrow approach in what is or is not published to the public that this is permissible. It doesn't run a foul of the issues that the court addressed previously that the court is trying to avoid uh by publishing portions. And in addition to that, independently of the court's decision-m, it appears that the parties also agree as it relates to the first requested edit to unredact or to allow in. So I am ruling that that may be played and published through all mediums in the courtroom and via video. Turning to the second section. This is >> Sorry, your honor. Just to clarify what we asked was uh just before 337. >> 3307. Correct. Yeah. Yes. >> Mr. McBride states Okay. >> I see. Thank you. Let me just take a in relation to that request from right after 3255 starting with okay. Is that the spot you're talking about, Mr. Ballard? >> Yes, your honor. >> All right. And specifically to 3327, the court stands by its original ruling. that is not uh there there are several reasons why the this is the court's ruling isn't whether it's relevant or not it's whether it should be published or not and again as previously stated the entirety of exhibit 16 the court is receiving without any redactions or edits the court is considering it as it weighs probable pause. However, for publication, the court finds that the requested section from roughly after 3255 starting with okay ending at uh 3327 is the court finds that the there are interest served by not publishing this to the courtroom or to be broadcast. Uh, I note the and and I and I and I recognize Mr. Novak's uh statement as it relates to what Mr. Twigs Council may or may not assert, but the court finds independently that this portion uh shall not be transmitted into the courtroom uh because of certain statements made in there that do not serve the interests of justice for publication. However, the court finds from 3327 starting at okay until just before 3340. Did that notation make sense? >> Did to the state, your honor. >> All right. To defense. >> Understood. And so this is the of being transparent while at the same time maintaining the constitutional rights uh or balancing the constitutional rights of all parties and and what is uh appropriate for publication and this may be published not only to the gallery but to uh to the media as well that goes beyond the gallery itself. All right. Anything further on states exhibit 16? >> Not from the state, your honor. Thank you. >> All right. And I note defense is nodding their head as well and not indicating any more is needed to be discussed at this point. All right. I think we've put states exhibit 16. We've addressed it. Thank you, your honor. Uh we would just like to briefly emphasize a few points in the briefing that we filed uh early this morning. Um, last night, uh, the state or excuse me, the defense raised the issue of, uh, publicizing or publishing, excuse me, publishing, uh, admissions by the defendant or confessions. Um they cited to one sentence from the United States Supreme Court uh opinion in Estes versus Texas that relies on the redu redo versus Louisiana case. And that one sentence in Estes has no presidential value on the issue that's before the court today. Um, Estes cited to the dissenting opinion in Reo, which is very curious because that dissenting opinion redo was a change of venue case. And what the dissenting opinion held is that the court properly refused to change venue in that case even though the defendant's confession had been televised multiple times. So, it's it's puzzling that that's what the um the Estes court would rely on as supposedly constructing some kind of rule about publishing uh a defendant's admissions. Um in addition to that, uh Estie's has no analysis of that point from Reo. Uh again, it's just one sentence. And Estes itself was a case about televising a trial. It wasn't about pre-trial publicity of a defendant's admission or confession. And um as we noted in the brief uh subsequently the Supreme Court has limited although it hasn't expressly overruled Estes it's limited that case to its very narrow facts. So it's it's difficult to see what presidential value that one sentence from redo could have on this issue before the court. Um, even if it could have some applicability here, the circumstances in redo are starkly different from the circumstances here. The statements, the types of statements from defendant that we're talking about in in Ridau, what the police did was orchestrated a recording of an unconscized police interrogation. The um police recorded that interrogation. It was leading questions. They recorded the defendant answering those leading questions. And then they immediately, it was the police that immediately released that recording to the press who then publicized and televised that the the defendant confessing to police, answering the police's questions. That's not the types of statements that we're dealing with in this case. What we're dealing with are statements that defendant voluntarily made to uh close friends and associates sorry, just one other point about Reau and that dissenting opinion. It's interesting that in that dissenting opinion that judge uh that the court relied on in Estes uh continued on in his opinion and said it's a it's an impossible standard to require that a trial court be a laboratory that's completely sterilized and free from any external factors. So again, it's hard to see how REO has any presidential value and um even if it did, the circumstances are completely different than the time uh from the types of circum the types of statements that we're dealing with here. Um the state has also cited to several other courts that have easily distinguished RITO and have made it clear uh that there is no blanket ban on public or publishing especially just in court uh a defendant's voluntary admissions. Um I think the most interesting case is the sixth circuit case because there it dealt with essentially the issue that we're dealing with here which is publication of a defendant's statements during a preliminary hearing and it's that case is especially uh important the Dlesie case because there that confession was ultimately held to be inadmissible. So, an inadmissible confession was played to the public and interested media members uh so that in a way that it had uh as if it had been played in a preliminary hearing. And even though that confession was subsequently publicized and um ultimately held to be inadmissible at trial, the court did not hold that that was a uh violation of the the defendant's fundamental rights there. That the court could deal with that through vardier. Uh it was not inherently prejuditial. And then the state has also cited to um the Ohio case of Mammon and then also uh the Alabama case Burgess versus state where the courts those courts reached essentially the same holdings easily distinguishing the redo uh sentence from Estes and making it clear that there's no blanket ban on publishing um a defendant's admissions and uh also that RITO is easily distinguishable and the court because the court can deal with those pre-trial publicity issues in the way that we've discussed several times already uh through the tools that the court has available in selecting the jury. I think it's also important uh to point out that transparency is critical in this case. This court's noted repeatedly the extensive media coverage. That's why we're having to take uh this additional time in these hearings to be able to discuss these issues. And transparency is critical to the state's right and the people's right to a fair trial where there's a vacuum in the evidence. It just fuels speculation. And then finally, uh, as is as as has already been argued, it's critical to the victim's right to be able to to attend the hearing. It that that's a hollow promise. If the victim representative is not is only able to be here physically, but then is shielded from uh from some of the evidence. >> Does the court have any questions? >> Mr. Novak, >> thank your honor. The par the parallel between Mr. Robinson's case and the Reau case is this. Mr. Redau's confession was televised by an act of the state. It wasn't a confession broadcast through a courtroom. It was a confession made to law enforcement and then broadcast by action of the state. And that's what gives rise to the constitutional problem which is its state action which violated Mr. Robbins and I'm sorry, Mr. Rudau's right to a fair trial. This court has granted the media's request to electronically That's state action and the state has supported the media's request over Mr. Robinson's objection. So that is also state action. So that's the parallel. If there were no cameras in this courtroom, we would not have a problem. And in fact, Miss Kirk's attorney's briefing seeks a remedy which has nothing to do with the cameras in the courtroom. What Miss Kirk's council seeks is the opportunity for people in the courtroom to see the evidence. So, the state is going even further than Miss Kirk's council. The state wants to publish what it calls confessions in the same way essentially that the state published Mr. Reau's confession. Now, what the only other thing I want to talk about is that Mr. Ballard's um correct that the blanket rule that there is unrebutable prejudice. It's stated in redau. We could talk about why dissenting judges say, "Oh my god, the court has established a rule and I don't like it." That's what's going on there. But it was in the Skilling case, a Supreme Court decision in 2010 where the court said, "Yes, we really are going to let judges decide whether potential juror exposure to pre-trial publicity makes them an unfair makes makes them um unable to serve. But there is an extreme case, that's not my language, that's the Supreme Court's language in skilling. There are extreme cases of pre-trial publicity where prejudice is going to be presumed. And so that's obviously about what has to be proven in terms of the prejudice. But when it's an extreme case, what the Supreme Court is saying in skilling is um there's a presumption. And I believe that this court has already made findings over the last nine months that this is an extreme case with respect to the quantum of pre-trial publicity. The way in which it's being monitored uh by the public, the the um speed with which these proceedings even this week um are being um dissected and broadcast. um through all of the technology channels that we have. So it's our view that this is the extreme case that the Supreme Court talked about in skilling. We wouldn't have any state action giving rise to this problem if we didn't have cameras in the courtroom. And that's why we think that exhibits 16.1, 16.2, and 16.3 um need to be managed in in the way we've asserted. Thank you, your honor. Thank you, >> Thank you, your honor. Just briefly, Mr. Novak's misrepresented the state's position. We're not going beyond uh what the victim representative has asked for as we made clear in our briefing this morning that we filed this morning. We are asking that these that these exhibits unredacted be published in the courtroom, not electronically, but they be published in the courtroom. It's not the camera in the courtroom that's the problem. The issue here is the public's right. This is a public hearing. The court's ruled that it's a public hearing. Karns Tribune recognizes that preliminary hearings are public and the public that is here in this courtroom should be able to see the exhibits that are admitted and that the court is going to rely on. And that uh is even more important to the victim representatives right to be able to be present and to observe these proceedings. >> Your honor, if I may, I'll be brief. I want to begin by saying thank you to uh both the parties, to the state, to the defense, to the court. Um today's the time that's being taken today and the nimleness that's required to talk about things like a transcript in open court is a challenge. I recognize that it presents uh difficulties and that it takes time. And I want to begin by thanking both the parties and the court for taking the time to do that. It's important to the public and I appreciate the court doing that. I know the public does as well. The only thing that I want to say with respect to this question about admissions or confessions is something that I hope will help the court. The court is looking at RDO. Uh it's looking at Estus. Um these cases from 50 or 60 years ago in a different media environment under the United States Supreme Court. I want to urge the court to do what the court has done before and that's to look at Algier. This is a 2011 Utah Supreme Court case. It's obviously in the wake of Rudau. It's obviously in the wake of Estes. It's here in this state, unanimous Utah Supreme Court upholding a decision made by Judge McCle below in a case that has striking parallels to this one. In the Alier case, there was a murder trial and the court received a letter, a notorized letter from an inmate saying the defendant in this case has confessed to me, sent uh told me uh that he was involved in the shooting, gave me details of it, threatened me and my family if I did that. I want the court to know that that was provisionally sealed for many of the same reasons that the court could conceivably consider um keeping some of this information from the public. The court did a two-step analysis. It began by trying to determine whether or not there was a presumptive right of access to that document. The answer is yes. There is a presumptive right of access to this proceeding as well. Like Mr. Ballard just said, because this is a preliminary hearing, there's a presumptive right of access for the public. The second question was simply whether there's some kind of balancing that should be done. Notably in paragraph 17 of that algae case, it stressed something that we have said over and over again, which is much of the information that would be revealed through that letter had already become public at that point. And the idea of sealing a document that contained allegations or details that were already in the public sphere would only create the impression that information was being kept from the public when it was not. uh we stress what we did yesterday that much of as we understand it much of the information that is now under consideration for the court is already in the public sphere. The right case to analyze this under is algier. Algier would dictate in this case that the court recognized there's a presumptive right of access to this material and that the presumption uh the the balancing test that would be needed to overcome that presumption of access has not been satisfied here be particularly because so much of that information is already in the public sphere. um that that must be an animating factor here and we ask the court for that reason uh to grant access both publication to the courtroom and in our view publication on the cameras as well. But we again do recognize that that meaning that middle step is a meaningful one and if the court were to decide that that information be shared in the courtroom but not on the general feed. Um, we would recognize that as well as a as a meaningful step towards transparency in >> council. >> Good morning, your honor. Jeffrey Nyman on behalf of the Kirk family and we appreciate the court is trying to balance here, but the Kirk family has waited 10 months for this hearing and they have a right to be here and they have a right to hear the evidence. They have a right to see and feel what's going on in this courtroom just like and they want to understand judge what you are what you are viewing. They want to see the evidence and we understand you have to balance but at a minimum this courtroom needs to be open for the for for the evidence to be displayed openly in this courtroom for them to see it. The Utah Constitution gives them the right to be here and to be here and not to see the evidence. What's the point of being here? We ask you to let the evidence be seen in the courtroom, please. Thank you for your time. >> Thank you, councel. >> Anything further as it relates to exhibits 16.1, 16.2, and 16.3, uh, as it relates to what's been briefed or any other arguments. I just want to make sure it has all been received before the court issues this ruling. >> No, thank you. >> Not from the state, your honor. Thank you. All right. And ju just to be clear as it relates to the state's request 16 point well six. So under the three factors or the three levels admission to the court, publication to the gallery and then publication beyond the gallery. What is the request for each of these exhibits? we your honor, we're we are asking uh for admission. We are asking for publication within the courtroom but not publication uh electronically on uh to the electronic coverage in the courtroom or of these proceedings. Uh we we do want to make clear that once the exhibit is admitted uh that the witness will be reading uh from portions of the exhibit. But then again, we're not asking that that be displayed in any way so that uh those outside the courtroom could could capture that and reproduce it. >> Thank you. And just the court just wants to and just for clarification 16.1 is the text messages 16.2 is discord chats and 16.3 is photograph of notes. >> That's correct your honor. And finally, and this hasn't really been addressed by any party, but it is a factor the court's weighing. How much of 16.1 has been published to the public And this is open to all if you wish to weigh in. I I just want to make sure that that's clear because it that wasn't really addressed in the briefing and it's a factor. So, I want to make sure that that that issue has been presented by the parties. Your honor, with respect to uh exhibit 16.1, some of those text messages do appear on pages 8 and nine. Pages eight and nine of the information that is public. Could you give me a rough estimate or percentage of how much of the total amount of 16.1 appears not in in the information? Again, I'm just trying to create a record of what is out there uh from your perspective so the court can consider that in its analysis. Your honor, uh, states exhibit 16.1 is 18 pages total of photographs of, uh, text messages. It's approximately five and a half pages of those 18 pages that are reproduced in the information. Thank you for your patience. >> Thank you, Mr. Ballot. I appreciate you to defense? >> No. Thank you. >> To the prosecution? >> Well, you just point out for the court that in addition to the text messages, I believe I haven't seen um the other exhibits, but I believe that at least the note itself, which is another one of the exhibits, is also described in the information. >> Thank you. Uh the Miss Kirk's uh victim representative attorney This has not been easy as you can imagine and and I I think the family deserves to see the evidence that's been gathered in this investigation. They deserve to know what happened, Charlie. So we urge the court to please again display the evidence here in the courtroom. >> Thank you. Thank you to all parties. I appreciate the diligence and hard work that you've put in briefing argument. These are important exhibits as it relates to uh what should be considered uh for again to be clear these exhibits are being admitted to the court in its entirety. The question before the court is publication within the courtroom and beyond the courtroom. And so this is the ruling as it relates to the briefing. And I know it wasn't a formal motion, but I'm just trying to be thorough in my approach. This matter comes before the court on states request to publish exhibits 16.1, 16.2, and 16.3 during the preliminary hearing and defendants's objection to that request. The exhibits consist of text messages between Mr. Robinson and a witness, discord messages between Mr. Robinson and others, and a written note the state attributes to Mr. Robinson. Attorneys for Mr. Robinson argued the publication of the exhibits during the proceedings subject to electronic media coverage would create a substantial risk of pre prejudice and impair his his rights to due process under the 14th amendment. The defendant relies on Rzu versus Louisiana SD's and skilling and asks the court to consider any admissible exhibit for the purposes of the preliminary hearing while limiting their public display or broadcast. The state responds that and do not require a category categorical restriction here. The state argues that the exhibits are materially different from the televised custodial interrogation at issue redau because they are written communications allegedly made outside law enforcement custody. The state also argues that the potential prejudice can be addressed through trial management measures including border and that the victim representative has an interest in being present for and able to follow important criminal proceedings. The court has considered the party's arguments, the nature of the exhibits, and the procedural posture of this preliminary hearing, the defendant's due process interests, the public nature of the criminal proceedings, and the interest asserted by the state and victim representative. On the present record, the court is not persuaded that the publication of exhibit 16.1, 16.2, 2 and 16.3 during the preliminary hearing creates the type of inherent or presumed prejudice that requires category categorical restrictions under REDO esties and skilling. Unlike the broadcast interrogation in REDO, the exhibits at issue are written communications allegedly made outside police custody and are being offered in the ordinary course of a judicial proceeding. That distinction does not eliminate the possibility of prejudice, but it weighs against treating publication of the exhibits as presumptively unconstitutional. The court further finds that any potential prejudice arising for media coverage may be addressed if necessary through the appropriate trial procedures, including vire and any other measures warranted before trial. This ruling is limited to publication of the exhibits during the preliminary hearing and does not determine their admissibility at trial and I insert if one occurs or foreclose any later request for release relief based on a more developed record. Accordingly, the defendant's objection is overruled overruled. As it relates to this preliminary hearing, the state may publish exhibits 16.1, 16.2, and 16.3. And the court is authorizing, with the exception of the third to last page on exhibit 16.1 because it contains information including a phone number and address to be redacted before publication in the courtroom. But as it relates to 16.1 because it was publicly distributed by the state that 16.1 in its entirety may be broadcast through electronic media. That is the ruling of Your honor, just to clarify the record, uh the state has redacted that portion. We anticipated uh that that needed to be redacted in 16.1. So we have redacted that portion. We believe that uh the best way to proceed now is we have the edited video ready that comports with the additional edits that the court has ordered. Um we propose that we take a break so that we can show that to the defense, make sure we're on the same page, and then we anticipate uh coming back and playing uh exhibit 16. >> All right. >> Okay. All right. I appreciate the caution being exercised by all parties. We'll We'll wait a moment for the public to be back in session. Welcome back. Turning to the state. >> I apologize, judge. We were having computer uh technology issues and we believe those have been sorted out, but we have not yet had the opportunity to show the the final edited versions to the defense. >> All right. Well, uh how much time do you need? just as long as it takes to show the video. So, maybe 10 minutes. >> All right. Well, we'll go into um well, I want to make sure sufficient time is done to do that. I I I'm sorry. I didn't realize that we were at this point. Uh we'll we'll be in recess for 10 more minutes. Uh so by 11:05 approximately >> that should work and also we can inform the baiff as soon as we're done if if it's ahead of that time. >> All right. Uh so ladies and gentlemen I apologize. I thought we're ready to proceed. I want to be respectful of all time everyone's time but all at the same time keep this hearing moving forward. Uh so court is in a brief recess. Court is back in session noting the presence of the parties uh all being present. And where we left off is we were looking to where the state was looking to confer with defense to ensure that states exhibits 16, 16.1, 16.2 2 and 16.3 were shared. Miss Hunt, >> we have reviewed 16, exhibit 16 with defense and it comports with the court's order. Um, at this point, we would like to put Agent Davis back on the stand and uh continue with displaying that, publishing that. >> All right, Agent Davis, if you'd like to come forward, I remind you you're still under oath. If you'd like to have a seat, there should be a water bottle to your left. And after you're situated, if you wouldn't mind adjusting that microphone and bringing it close to you so the record can pick up your testimony. Miss Hunt, your witness. >> And just for the the record and the court's benefit, we have made the edits that the court has ordered. We have shown them to defense. uh pursuant to the time stamps that the court ordered, we wanted those to be reflected very clearly. So there are uh sometimes large gaps of just black empty silent space. When there are large gaps, we will fast forward. Some of those are short enough that we'll just let it play um if the court is okay with that with proceeding that way. >> Thank you. I appreciate uh giving a heads up so all parties know what's going on. Thank you, Miss Hunt. So at this time um we would move to publish on the monitors states exhibit 16. >> All right. And to the media there is a monitor for your benefit right there next to you. For the camera there is one uh for that direction as well as for the gallery. this meeting is uh to use your statement here instead of your testimony at a preliminary hearing. You understand that? >> Mhm. >> Okay. So, um in order to that to do that, I need to place you under oath and also give you a an admonition about false statements. Okay. First, uh, you do solemnly swear or affirm that the evidence you shall give in this issue shall be the truth, the whole truth, and nothing but the truth. So, help you God. >> Yes. Um, I also need to notify you that you are notified that statements you are about to make may be presented at a to a magistrate or a judge in lie of your sworn testimony at a preliminary examination. Any false statement you make and that you do not believe to be true may be sub may subject you to criminal punishment as a class A misdemeanor. Understand that? >> Yes. >> That potentially could be used as uh for punishment as a higher offense as obstruction of justice. Um, in addition, I just want to make sure that our recording here is clear that uh you've also been given um uh a federal agreement and a state agreement granting you immunity from prosecution for materials that you discuss now. Do you understand that? >> Mhm. Okay. Um, first, uh, we're going to cover some of the things that we've already talked about, but to make it, um, as part of this record, um, first, what's your name? >> Full name with middle name or just first and last. >> First and last is fine. >> Okay. My name is Lance Twix. >> And do you know Tyler Robinson? >> Yes, I do. Or Yeah, I do. >> And this is the same Tyler Robinson that's been charged with the shooting of Charlie Kirk? >> Yes. And would you say when you first met uh Tyler? >> I think it was 2023. I've known him longer than that though. That was I think the first time I met him in person. and will you describe your relationship with with Tyler uh when you first met him? Anyway, >> um when I first met him, I didn't know him super well. He was just a new I knew he knew my friend group and I knew he liked playing games, but that that's about it when we first uh like when he first moved in. >> Okay. >> Um before we go on, I realized my wife was at the microphone. >> No, >> I'm going to repeat those admonitions just to make sure. >> Okay. So, um again, I placed you under oath. Um um just to make a record, I'm going to do it again. You do solemnly swear that the evidence you shall give in this issue shall be the truth, the whole truth, and nothing but the truth shall be. >> Yes. And again, I'm giving going to give you the false uh statement. >> Sorry, hold on. I'm um they're saying that it's echoing. So I >> I think this one's mic is on. >> Okay. Sorry. >> Okay. You're not my mic, but that's fine. >> Okay. Is that mic on? >> Yes. >> Okay, great. >> All right. Um, okay. Sorry about that interruption. All right. So, you said when you first met met you were roommates. >> Uh, yeah. >> Okay. And then, um, at some point, uh, your relationship progressed to something more than just roommates. Is that right? >> Mhm. >> When was that? Um, I think we started dating two or three months after he moved in. >> Okay. And where did you live at that time? >> St. George. Uh, in an apartment complex. >> And is that apartment the same place you lived uh when on September 10th? >> Yes. >> Um, when you lived there uh with Tyler, were you in the same room? Did you live in the same room or different rooms? >> Uh, separate rooms. And at that time, let's say September of 2025, um what was what were you doing with your life? Were you working school? >> Uh I was working. Um I was doing like bathtub and shower repair and stuff in new construction. >> Okay. How about Tyler? Um, I think he was both working I think he was working for an electric like an electrician company then and he was also in a trade school for being a I don't know higher like ranking electrician. I'm not sure how the trade system works for that. >> Okay. >> But I think he was both. >> What was his typical workday like? >> Um, I think he'd leave around 7 generally and get back around 3 to 4. uh depending on like where the job was and how long it was for the day. And then on certain days of the week during school like semester he would then later in the day I think around 5 or 6 go to school. So yeah. >> Okay. Let's jump to September 10th. Um did he spend spend the night in the apartment the night of September 9th into September 10th? >> Into September 10th. Yeah, he did. Uh, yes. >> Do you know when he left the apartment on September 10th? >> Um, I don't know an exact time. I just know he left early. Uh, I heard him leaving and he just said he had a like long drive to work that day, so he was leaving early. >> Yeah. So early. Um, any guess as to what um when that was? >> Uh, I don't know. I would have thought it was 5:00 a.m. because that's when like an early work day was for him, but it was probably more like 4. >> Okay. >> I'm going to have him spit out his gum just to make sure that >> I can do that. >> Right in front of your laptop. >> There you go. Hi. >> So, what time did you get up on September 10th? >> Probably like 12 to 100 p.m. >> You didn't have to work that day? >> Uh, no. >> And did you hear from Tyler? Did he call or text you before then? >> Uh, no. He sent that message in the group chat I mentioned, but he didn't message me directly at all that day. >> Okay. When did you first hear from him? On September 10th. Uh, it was at 11:00 with that like automated message. Okay. 11 p.m. >> Yeah. What about he asks you here remember how I was engraving bullets? Was he engraving bullets before this? >> Uh yeah, I don't remember exactly when, but uh he had said he was planning to go hunting with his family. Um, and he asked me for a if we had like a Dremel to because he said he wanted to create messages on bullets. Um, and I just told him where Dremel was and I told him to make sure he doesn't like set off a bullet on accident in the house. Um, but I didn't really think about it until then. >> How long before um September 10th was this that you he asked about the Dremel? I I don't remember cuz he'd been talking about the uh hunting/camping trip for a couple months, but I I don't remember when he was specifically asking to engrave the bullets. So >> So are we talking like a year before? >> Oh, no. Not not that not that long. It would have been I'd say at most a month before this was when he was asking. Okay. All right. Um, you talked about the note that he left. Um, I want to bring this up and I should say that um, these text messages that we've been looking at here are um, bates number 54. Okay. Uh, the notes have been titled 16.3 with a note and this is base number 58. Do you recognize that that on the screen there? >> Yeah. Yeah. >> What do you recognize it as? >> Um, that was the note under his keyboard that he was referring to in the first text of that chain. >> So, where did you find this? un on his desk underneath his like uh computer keyboard what I assume you read it. >> Yeah. >> And then what did you do with it after you read it? >> Um I believe I just put it back down on the desk after I took a picture of it. >> Okay. And again, the time you read it was probably around 11:00 or so on the 10th. >> Yes. >> The night of September 10th. >> Mhm. >> Right. And did you ever see that again after you placed it back on his desk? >> Uh, no, I don't think I did. >> And that was a desk in his bedroom? >> Yes. >> And that's a separate bedroom than your bedroom. >> Yep. >> And now I want to go to uh what's been and do you recognize >> Um, yeah, that was the server like his friend that I was mentioning. >> Okay. And this is your phone again? >> Uh, yeah. And I'm assuming you recognize it because the big crack up at the top. Mhm. >> And so this is a server. Is this Discord? >> Yeah, this is Discord. >> And who who are members of this server? I don't want names. Just generally who are these people members of this? >> This is his friend group. Um they play D and D together every week. >> Okay. And I just want to scroll through this to make sure that uh get a chance to take a look at it. I go to the next page. >> Yes. So Tyler I come. Who's that? >> That's Tyler Robinson. >> These other people are just others that they're members of the server. >> Yes. >> Jug Barnaby Marina DM. >> Mhm. >> Yes. >> Yeah. Like DM means dungeon master. So this these are like most of them are names they're using in the in the game they're playing currently. Yeah. It looks like the last text from Tyler looks like it's um 8:00 p.m. And do you know what day this would have been? 800 p.m. on the 10th or the 11th? Uh, I would think that would be the 11th cuz on at least I think so because I don't think on the 10th that he messaged anyone before me at like 11. So, >> and he turned himself in on the 11th, right? So, again, we're just going to go through this so that we have a record of Is that an accurate recording of that thread? >> Uh, to my knowledge, yes. >> And that was sent looks like between September 10th and September 12th. Looks like the last day on this is September 12th screen. Okay. All right. So again, those messages covered from September 10th to the evening of September 11th. Now, September um 11th. What time did or did you see on September 11th? >> Uh yes. >> When did you first see him? On September 11th. So this is the day after the shooting. >> Yeah, I saw him when I woke up. Um like I said, he was like up and around doing a lot of stuff around the house. Um, and then I uh I think I saw him after that message where I said I'll come home and say I'm doing laundry because I didn't want him going to my parents house right then when he said there was probably cops outside. So I went back home and it was just him there and I said bye to him and then he drove off. So, I just went back to my parents house. So he acted erratically. Um was he pacing? Was he just sitting down relaxing? >> No, he was he was uh walking around a lot. >> And that's within the home. >> Mhm. >> Um and did he talk about what he had done? >> Uh didn't go into detail. He just I just asked him in person if what he said was true the night before and he said it was. I started crying a little bit and said he wishes he hadn't done it. Uh and then kept going around and just doing stuff I think to keep himself busy or distracted or something. Yeah. >> Could you talk about what he was going to do next? Uh and then eventually said that he would talk to his parents or turn himself over. >> Okay. And uh when you left, was that how you went you left understanding that he was going to turn himself in or go to his parents house? >> Yeah. And I didn't really want to be at our apartment while any of that was happening, regardless of what went down. Okay. Um, okay. Before he came home, had you seen the press the press releases um any of the media on on this? >> I'd seen one Instagram like link a friend of mine had sent in our group chat, >> but I hadn't really looked into it at all. And uh had you seen the images that were released of the suspect? >> Uh I did the next day. I don't think I saw any on the tech. Going to show you a couple of those images. I'm on the FBI's website. Um you can see the URL there at the top. This is some press release about this event. Um, and here on the screen, do you see these? There's looks like there's two rows of three images. >> Mhm. >> Um, do you recognize the person in these images? >> I wouldn't say with 100% certainty just because of camera quality, but that looks like him in terms of the shoes he's wearing, the sunglasses. I don't think I'd specifically seen him wearing that hat, but he was usually wearing a hat. Um, and then jeans. So, it definitely, especially the bottom, the last two definitely do look like him. >> And, uh, you talked about that with your friends, right? This might be him. >> Yeah. His his friends. Yeah. I don't um I don't know if I talked I don't remember if I talked about it with any of my friends. Um and then since I didn't have my phone after that for a while and I still am not using social media. I don't I don't know uh on my friend's end. >> Okay. Um All right. I want to back up a little bit now. We've talked about September 10th, but let me get a little bit of um context here. So um did you game with Tyler? >> Uh yeah. What kind of games? >> Um, we played some just kind of party games together, like stuff, anything that would be multiplayer with a group of friends. Uh, there was one game he really liked called Sea of Thieves where you play as like a pirate and you can uh you can fight against people, but most of it's just like fishing, fighting sharks, skeletons kind of stuff. Um, we played some co-op games where it's like uh you both have to work together to win in whatever way. Uh, way back when, like when I was just out of high school, when I uh first knew him online, we played some like shooting games together, but I I didn't know him very well. So, that was just when we had like a whole friend group on to play and he was someone that my friends invited. >> Okay. Um, did you and he ever talk about politics? Um, he did more than me. I I didn't really still don't really keep up with politics very much. Uh, he'd usually talk about stuff he heard on the radio on his drive to work in like their work car since it sounds like their whole crew went in the same car most of the time. But, uh, I wouldn't say super consistently because it wasn't a topic I really contributed much on. >> About Charlie, correct? Did you ever talk about Charlie Kirk? >> I I personally had never heard him talk about Charlie Kirk before specifically. >> Okay. Um, how about um political issues? So, did you ever talk about gender identity issues and LGBTQ rights? >> Uh, no, not not really. Um uh usually if he did talk about politics stuff, it was uh relating to Trump or current like policies being uh like issued or voted voted on I think. But yeah, Okay. So, before that you have been >> for for a short time. Yes. >> Okay. And um I understand you're going by Luna at some point. >> Uh to some people, yeah, but not as an Sure. Okay. I think that's all the questions I have for this portion. Uh let me check and Okay. Um, the Dremel that you talked about, um, you said he had asked for that. Is that right? >> Mhm. >> And had he told you it was to inscribe bullets? >> Yeah. >> And, uh, so did you have a Dremel then? >> Yeah. >> Okay. >> Uh, it was in our like we had a our apartment. We had a section where we kept all our like random tools for household stuff. uh in our like uh lower basement level pantry. Um so yeah. >> Okay. And did you give that to him or tell him where it was? >> Okay. I'm going to go ahead and end the All right, that concludes states exhibit 16. Miss Hunt. >> Thank you, Judge. Agent Davis, I asked you yesterday, but I want to remind uh the court and those present, were you physically present at the interview we just watched in States exhibit 16? And aside from the court-ordered redactions, did it appear to you to be fair and accurate about what you remember that interview that day? >> Yes. Yes, I do. >> During that interview, did Mr. Twigs, was he shown or or referenced certain items of evidence? >> Yes, he was. >> What types of items of evidence was he shown? Uh, it was the text messages between himself and Tyler between himself and Tyler Robinson, a Discord me discord chat messages and a handwritten note. >> And then we also saw in the video he was also shown the FBI release press release photos of the potential suspect. >> That's correct. Yes. >> Have you reviewed all of those items as part of the investigation? >> Yes, I have. >> You're familiar with them? >> Yes. >> All right. Okay, I want to put just on the witness's screen what's been marked for identification estates exhibit 16.1. And for the record, this is this includes the edit that the court the one edit that the court has uh previously ordered. >> Thank you. >> Let me know when you see that on your screen. I see it. I see it now. >> Do you recognize this? >> Uh, yes, I do. >> What is it? >> This is a a photograph of uh screenshots of text messages between uh Tyler Robinson and Lance Twigs. This is a photograph of uh Lance's uh phone. >> So, sorry, you said photograph, you also said screenshot. Uh can you can you differentiate or or clarify there? >> Yeah. Yeah. Sorry. Um yeah, these are photographs directly from Lance's phone. >> How do you know that? >> Uh in Lance's first interview, he has shown he's showing the FBI agents these u these text messages. um describes them to the agents. Um and at that time those those uh his phone is photographed. >> And you testified, I believe yesterday, that Mr. Twig's first interview was the morning of September 12th, 2025. Is that correct? >> That's correct. Yes. >> Were you physically present at that interview? >> No, I was not there. >> Have you spoken with the officers or agents that that were? Uh, yes. I've spoken to to one of those agents that >> And you stated that that first September 12th interview of Mr. Twigs was recorded. >> Uh, yes, audio video recorded. >> Have you reviewed that recording? >> Yes, I have. >> So, you stated that we're looking in States exhibit 16.1 at a picture of Mr. Twig's phone. >> Yes. >> Do you know who took these photos? Yes, it was Agent Larson with FBI. >> Did you speak with Agent Larson and confirm that? >> I did. >> And you you kind of made reference to this already, but how did Mr. Twigs initially show law enforcement the relevant text messages? >> Yeah. During that first interview on September 12th, um he physically they he he shows them the phone and then uh allows them to photograph the phone. And does he identify it as his phone in that interview? >> Yes, he does. >> Does he refer to any particular uh features of the phone that allows him to make that identification? >> Let me the second interview he refers to the the the large crack in the upper left screen that uh so he he identifies that from in the his second interview that was given on April 20th. And according to your review of the recording of his first interview and in speaking with the agents that were there, did he have his personal phone with him at the time of the September 12th interview? >> And was this same text thread that we're seeing in States exhibit 16.1 shown to him during his second interview um in sorry, let me get the date right. April 20th, 2026 at the Utah County Attorney's Office that we just observed part of in states exhibit 16. >> Was he asked how Tyler Robinson is is saved in his phone like as a contact? >> Yeah, just as Tyler >> uh without saying it obviously. Did he identify Tyler Robinson's phone number? >> Yes, he did. >> Did you check the number that Mr. Twigs gave as Tyler Robinson's phone number against law enforcement records. >> Yes, I did. >> And do they match? >> Yes, they match. >> Is states exhibit 16.1 a fair and accurate representation of the text thread between or the relevant text thread between Mr. Twigs and Mr. Robinson? >> Yes, it is. >> As part of the investigation, was a Celebrite extraction performed on Mr. Twig's phone? >> Yes, it was. >> Did you personally review that >> And according to that extraction, did Mr. Robinson and Mr. Twigs exchange text messages on September 10th through 11th, 2025? >> Yes, they did. >> What time was that first text sent according to the Celebrite extraction? >> Uh, the first text was September 10th at >> All right, judge. I would move to admit uh states exhibit 16.1 and I and then pursuant to court order I would I would move to publish it to the monitors >> Novak. >> We have no further objections beyond those that the court of courts is very familiar with at this point in time. >> All right. I'll note the standing objections made by defense. Those objections are overruled. This 16.1 is admitted into evidence and may be published to the gallery as well as electronically >> All right, agent. I want to I'm not going to go through every single message, but I do want to have you read aloud certain portions of them. And I apologize to council that these are not actually given a page number. Um, I have page numbers, but I'm happy to confirm that that we're on the same page as we go. So, here we're looking at page one of states exhibit 16.1. If you could start, if you could read a little more than halfway down where it begins, Wednesday 11 p.m., will you start reading underneath that? >> Yes. Um, so this would have been uh from from Tyler. Says, "Drop what you're doing. Look under your keyboard." >> And I I apologize. Let me stop you there. How do you know that this that message would have been from Tyler Robinson? >> Uh, that's just so any of the messages in gray would be from Tyler and message in blue would be from uh from Lance. It's just way the iPhone distinguishes the messages. And also Lance, Lance in his interview also acknowledges that um who was saying what >> and up at the top who do we see that this threat is is between >> uh Tyler. >> All right. Sorry to interrupt you. Uh so so read that again starting from look under the keyboard. >> Uh so so uh after that then Lance responds. He says what? And then he says you're joking right? And then Tyler says, "Fuck, I tried to delete that." And if you can continue reading along. >> Okay. Uh, and Tyler says, "I'm still okay, my love, but I'm stuck in Orm for a little while longer yet. Shouldn't be long until I can come home, but got to grab my rifle still. To be honest, I had hoped to keep this secret till I died of old age. I am sorry to involve you. And then Lance replies, you weren't the one who did it right. And Tyler says, I am. I'm sorry. Lance says, I thought they caught the person. And then Tyler says, "No, they grabbed some crazy old dude and interrogated someone in similar clothing. I had planned to grab my rifle from the drop point shortly after, but most of that side got side of town got locked down. It's quiet almost enough to get out, but there's one vehicle lingering. >> Continue reading. >> Uh Lance says, "Why?" And Tyler says, "Why did I do it?" And Lance says, "Yeah." Tyler says, "I had enough of his hatred. Some hate can't be negotiated out. If I'm able to gra to grab my rifle, unseen, I will have left no evidence. Going to attempt to retrieve it again. Hopefully, they have moved on. I haven't seen anything in the news about them finding it. We'll update you shortly. Or Charlie, we'll update you by midnight. And then Lance says, "All right, stay safe. How long have you been planning this?" >> Scroll down a little bit, please, Kimberly. >> And Tyler replies, "A bit over a week. I believe I can get close to it, but there is a squad car parked right by it. I think they already swept that spot, but I don't want to chance it." We can scroll down to page four and continue reading. Uh about halfway down. I'll I'll stop you. About halfway down. >> Uh this is while they were spot, but I don't want to chance it. While they were parked there. If they had found it, I imagine there would be more commotion. Again, I'm sorry for roping you into all of this. You shouldn't have to worry about this. And Lance replies, "Does anyone else know?" Tyler says, "Not to my knowledge." All right, I'll stop you there. Uh, let's move to page five. So, this should be page four. So, just scroll down one, please, Kimberly. um, sorry, Kimberly, scroll a bit more down if you could read I don't know about onethird of the way up. That's that starts with guess. >> Okay. Um, Tyler says, "Guess I'm guess I'm just sitting in my car watching reals for another hour, hoping this guy [ __ ] off >> and continue." >> And Lance says, "Are you okay still?" And Tyler says, "Yes, check in spot again now. Will," >> I'm sorry, now we're on page six. Continue reading. >> Uh, we'll update soon. He continues, "The squad car was moved further away enough that I should be able to move in. I backed off cuz I thought I heard footsteps, maybe a foot patrol, but the crickets here are so [ __ ] loud. Going to see if the if the road closer to campus is open so I can drive past and check [ __ ] out. Probably still closed off though. Getting worried. Hard to know for sure, but I'm not finding my rifle. Could be in the wrong spot. Lance says, "Do you think they found it?" And Tyler says, "Don't know. They haven't published anything. if they have. And then Lance says, "Why did you leave >> Oh, sorry, Kimberly, if you could scroll down >> originally. Also, does it have a serial number? and I'll continue reading. I'll I'll stop you on this page in a little bit. >> Okay. Uh, so Tyler continues, "Uh, I IDK." If I had, uh, if it had a serial number, but it wouldn't trace to me, I worry about prints. I had to leave it in a in a bush where I changed outfits. Didn't have the ability or time to bring it with. >> And stop there, please. And then if we And if you could start at the top. >> Okay. So, Lance says, "Was your change of clothes there or was that also gone or did you bring those with you originally? Anyway, you could replace the gun or would he notice?" Then Tyler says, "Only thing I left was the rifle wrapped in a towel. I'll bet that K9 sniffed it out. Uh, little snitching bastard. Replace it. Unlikely. I don't fully know what the gun was cuz it was old as [ __ ] and Gramps did some modifying. There was a four-digit serial serial on it. God only knows who it's registered to. Hopefully some dead guy who gave it to grandpa. And he continues, "Remember how I was engraving bullets? The [ __ ] messages are mostly a big meme. If I see notices uh bulgew on Fox News, I might have a stroke." and then continue. I'll I'll stop you in a moment. >> Says, "All right, I'm gonna have to leave it. That really [ __ ] sucks." >> Let me stop you there. And then if we And do you see the the first blue message we see on page nine? Uh, can you start there? >> Yes. Uh, so Lance says, "Do you need it for hunting?" And Tyler says, "No, my dad wanted to use it to use a high caliber for the rifle hunt. Judging from today, I say Gramp's gun does just fine. IDK." I think that was a two a 2K scope. Uh Lance says, "Gez." And then Tyler says, "OMW home, uh 3.5 hours." Lance says, "Drive safe." And then Tyler says, "Delete this exchange." >> And I'll stop you right there. And then, sorry, we're on page nine. If we can and then the second grade message on page 15, if you could start there. >> Okay. So, this is Tyler. I'm going to turn myself in willingly. One of my neighbors here is a deputy for the sheriff. We hope to keep things sort of quiet here >> and then I'll stop you there. >> Okay. >> And we can remove uh the exhibit from >> Uh we mentioned a celebrate extraction of Mr. Twig's phone. Do you know what time that last uh text was sent? >> Yeah, I recall it was just before 8:00 p.m. on uh September 11th. It was I think 7:42 p.m. is my recollection. >> I'm sorry. September 11th. >> Yes. make more make sense or you're saying September 11th? >> So September 11th was when he turned himself in September 11th. Y thank you. Y >> All right. I'm going to show just for >> let me know when you see that. >> Okay. I see it. >> Do you recognize this? >> I do. Yep. >> What is it? >> Uh, this is just more photos of Lance's phone. >> These are Sorry. These are the the uh uh sorry how to blank brain. Uh sorry. Go with your question, please. >> Um I'm just asking what it is. So you said it's a photo of Lance's phone. Do you know if that's from the same time period as the exhibit we just looked at? >> Uh yes. >> And what is it of? >> These are the Discord uh messages of uh that Lance had talked about. >> How do you know that? Uh so Lance in the first interview with FBI shows the phone the photos are taken by agent Larson and then these images are shown to Lance during a second interview and it confirms that these are those same messages and this this is uh photos of Lance's phone. >> You mentioned an agent Larson took the photos. Um do you know if he's the same agent that took the photos of this exhibit 16.2? >> Uh yes, same agent. >> And you spoke with him to confirm that? Yes, I did. >> Are you aware if Mr. Twigs is actually part of this Discord thread? >> Uh, he Yes, he is a part of it. Um, he doesn't in in this section, he doesn't reply to it, but he does state in his statement that he was part of that thread. >> Does he identify whether Mr. Robinson is part of that thread? >> He does. >> And when did that happen? Uh he identifies that in his first interview uh with the two FBI agents and then he again confirms that in his second interview. >> Did Mr. Twig say what username on Discord Mr. Robinson used at least with respect to this thread? >> Yes, it's the uh Tyler Ikum. >> And is 16 exhibit 16.2 a fair and accurate representation of that discord thread? Did law enforcement send, as part of your investigation, did law enforcement send a subpoena to Discord? >> Yes, they did. >> Were these messages recovered via that subpoena? >> They were. >> Did you review that? >> Yes, I did. >> And in States exhibit 16.2 that is before you, uh, when is the first message from Tyler sent? uh 7:57 p.m. >> And it says yesterday. Do you have uh any knowledge of what day that would have been? >> Yes, this would have been September 11th. >> So Tyler sends the first message that you're seeing on exhibit 16.2 September 11th at 7:57 p.m. >> Yes, that's correct. >> You testified earlier that Mr. Robinson arrived at the Washington County Sheriff's Office approximately at 900 p.m. Is that right? >> Uh yes, that's correct. >> And although you weren't physically present there yet because you were flying down, uh how do you know that he arrived approximately around 9:00 p.m.? uh just based on the just the police reports I reviewed and and then go back Uh judge, the state moves to admit states exhibit 16.2 and publish it pursuant to court order. >> Mr. Novak, >> thank you. We've already lodged all of our objections on all three phases. All right, noting the objections, standing objections by defense. Uh, states exhibit 16.2 is admitted into evidence and may be published only in the gallery, not for distribution on I see it. >> Do you recognize this? >> I do. >> What is this? >> This uh is a handwritten note or letter uh from Tyler to Lance. >> How do you know that? Uh in Lance's first interview with FBI, he tells them about this uh letter know he found under Tyler's keyboard per text message he received. Um he states from, you know, 11 p.m. on September 10th. Um and so at that point, uh Lance finds this. This is the letter he finds under that keyboard. >> Okay. So to clarify, Mr. Twigs gets a text from Mr. Robinson around 11 p.m. on September 10th telling him to look under his keyboard. >> Yes. Correct. >> And this is uh what Mr. Twigs represented was underneath the keyboard. >> How did law enforcement get this photograph? >> So, uh following Lance's first interview, um at St. George PD. His phone is uh recovered at that point, taken into evidence. It is uh downloaded. I believe it was the following day or shortly after that. Um the FBI transported that phone to the RCFL, which is the regional computer forensic laboratory um in Salt Lake City. The phone was downloaded uh through Celbrite and um after that following that download was that was complete. Uh uh SBI received a a flash drive containing that download. Um from there it went to a SCAK analyst to go through that data of his phone to look for any pertinent evidence or information that may be on there. And at that point, um, that this image of this letter was, uh, uh, located. >> All right. I'm gonna break down a few things. You mentioned I just want to make sure the record's clear. You mentioned Celebrate a few times. What is Celebrate? >> It's a It's a downloading software that's commonly used by law enforcement. I I don't do that myself, but it's commonly used um to recover data to download electronic devices, particularly cell phones. >> And then you mentioned SCAK. What does that mean? >> It's the statewide information analysis center. It's a vision a division uh within DPS. That's a fusion center. They assist uh law enforcement with intelligence, various u intelligence uh uh information for for our investigations. You mentioned that you don't personally do celebrate phone extractions. Have you spoken to the law enforcement officers that performed the celebrate extraction on Mr. Twig's phone in this case? >> Um I don't believe I specifically talked to to those individuals RCFL that did that. Um um but uh but but they yeah that was then provided to SBI. Did you speak with officers at SBI that have recovered this photo that we're seeing in states exhibit 16.3? >> Yes. Yes, I've spoken to Yeah, I have spoken with uh um an SIAK analyst who particularly in particular found this image. I've spoken to her personally as well. >> Was Mr. Twigs shown what's been marked as it states exhibit 16.3 during his second interview? >> Yes, he was. >> And again, you were present for that? >> Yes, I was there. Is exhibit 16.3 a fair and accurate representation of the photo law enforcement obtained from Mr. Twig's phone um and that he was subsequently shown in the second interview. >> Yes, it's fair and accurate. >> Your honor, the state would move to admit uh exhibit 16.3 and then also publish pursuant to court order. >> Mr. Novak >> just noting the objections that have previously been made and I think that the court's order is that it may be published in the courtroom only. >> Thank you. Noting the standing objection by defense uh 16.3 correct. >> Correct. >> Is admitted into evidence and may be published only in the courtroom and not This >> I do. >> What is it? >> These are the uh images that the FBI released to the public. It would have been on September 11th when those released. Uh and this was uh Yeah, those are those images that went public of the suspected EVU shooting suspect. >> How do you know that? >> Uh I've viewed the FBI's website. Um, and I I recall seeing these images released on September 11th. >> Does states exhibit 16.4 is that a fair and accurate representation of what you reviewed from the FBI and that the FBI released? >> Yes, it is. >> The state moves to admit exhibit 16.4 and publish uh according to court order. >> Mr. Novak, >> no further objections. Thank you. >> All right. and noting the standing objection by defense over ruling that objection states exhibit 16.4 is admitted into evidence and may be published in the courtroom as it relates to 5.1. The court previously, I the day that I did it, I believe it was day two perhaps. >> That sounds correct. >> Uh the court provisionally admitted it uh contingent on additional foundation being laid whether through testimony or through evidence. And the courts uh notes that such foundation and testimony has been laid uh in order for the foundation to be laid for 5.1 to be admitted into evidence for full consideration by this court. And so that is received as it relates to publication and uh taking in consideration the argument by Mr. Novak. Well, first noting the objection, the standing objections by uh defense that is overruled as it relates to the admission to 5.1. But going to the publication, the court uh understands the argument made by defense that this is going toward perhaps religion uh and that the enhancement and and let me just read that from the information. victim targeting enhancement in violation of Utah code annotates annotated 76-3-203.14 sub 2 Tyler James Robinson intentionally selected Charlie Kirk because Tyler James Robinson's belief or perception regarding Charlie Lee Kirk's political expression and that was also uh noted as an enhancement for count two and count seven. The court is not going to engage. The court can weigh how this is applied but it finds it relevant uh whether how it relates to the enhancement is for the court to weigh as it looks at the bindover decision and it's not engaging in that decision making today but finds that it is relevant. It is admissible to the court and is publishable to the gallery as well as to the public. And so, uh, if the state wishes to publish states exhibit 5.1, it may do so at this time. >> And Kimberly, I don't know if we want to use the same kind of slow scrolling. All right, I believe that should be sufficient. And Agent Davis, I apologize. I'm going to take you very briefly back to states exhibit 16.1, which is the text thread between Mr. Robinson and Mr. Twigs. 17. And because this has already been admitted and court, correct me if I'm wrong, published not only to the gallery but to cameras at large, I'd ask that it be displayed in that fashion again. >> All right. Any input from any other party on that request? >> All right. Thank you. It may be published and u the media may pick this up as well. Agent Davis, if I can direct you to the very last message on that page, starting with if any, if you could read that out loud. >> Okay. Uh, this is Tyler. He says, "If any police ask you questions, um, sorry, let me start over. If any police ask you questions, ask for a lawyer and stay silent. My lawyer should be Doug Terry. I'll see if he can reach out to you and make sure the police the police follow." >> Okay. Thank you. That That's all I need from that exhibit. And then finally, Agent Davis, you testified before that you flew down to Washington County Sheriff's Office and observed Tyler Robinson there. Correct. >> Correct. >> You got his name there. >> Uh, yes. >> You stated that you transported or assisted transporting him up to Utah County Jail. >> Yes. and that you were the booking officer. >> That's correct. >> Do you recognize Tyler Robinson here in the courtroom today? >> Yes, I do. >> If you could uh point him out and briefly describe something that he's wearing. >> Uh he's individual seated at the defendant's table in the center chair with a a a gray suit coat and a a green tie. >> Your honor, if record could reflect identification of the defendant. >> Council, >> no. J. >> All right. I'll note for the purposes of this hearing only that uh Agent Davis has identified Mr. Robinson in court. Thank you. >> And judge, if I can just have a moment. >> Ready to pass the witness. Thank you. And I don't know if now would be a good time for lunch. >> All right. We'll go ahead and break right now for lunch uh for 1 hour. Well, 1 hour and 5 minutes. Let's come back at 1:30. uh will resume uh and we'll pick up with defense for crossexamination if they choose for agent Davis. Does either party need the benefit of the record before we go on our lunch break? >> No cross-examination for agent Davis. So I don't want him to wait here if he has other things to do. >> Thank you. >> Thank you, Mr. Novak. >> Thank you. No crossexamination. May this witness be excused? >> Yes. As agent Davis, you may step down and then we'll resume with the state on their next witness. Court is now in recess. Quote, it's back in session. Noting the presence of council and all parties. We left off with agent Davis uh being excused from the stand. No crossexamination. And turning to the state. Are you ready to proceed? State call Sergeant Jennifer Falina. >> All right, Sergeant, if you wouldn't mind coming forward and being brought Right. S Sergeant, if you'd like to come forward, you're still under oath from your previous testimony from the previous day. So, if you'd just like to come up to the witness stand, be seated. to your left uh behind the monitor should be a bottle of water. After you're situated, if you wouldn't mind just pulling that microphone toward you to ensure that the audio is picked up. Mr. McBride, your witness, Sergeant Falwina, good afternoon. >> We briefly covered some of uh your involvement in this case the other day. Uh, I want to return back to your initial assignment to this case. When were you first assigned to go to the campus of Utah Valley University? >> On September 10th of 2025. >> What time did you get that assignment? Uh, >> I believe it was approximately 1:30 p.m. >> And where were you where were you when you received that assignment? >> I was at a headquarters office in Salt Lake. >> And did you go directly down to the campus? >> Yes, I did. And will you describe what you're seeing as you arrived there? >> Yes. When I arrived there, I actually arrived on to or near the south end of campus and that's where I saw multiple police cars as well as multiple officers from various agencies. Um then I was asked to respond to the to our command post which was in the fugal building there. and the Fugal building. We've had some testimony about this, but is that just to the south of the courtyard? >> Yes, that is. >> And uh were you there while officers were securing campus? >> Yes, I was. >> And do you know generally how that was done? Um, I don't know the specifics, but I do know that officers were canvasing the area. Um, trying to look for a suspect, but also trying to um see if anyone else was injured and then making sure that um the scene was secure and that no that no unauthorized people were allowed in. >> And you I think you testified earlier. What was your primary assignment? My primary assignment um at the campus as well as throughout the case was to oversee the crime scenes as well as the physical evidence. >> Before you could do your work on the crime scenes, did the scene have to the campus have to become secure? >> Yes, it did. >> And did that involve making sure there was no active shooter on campus? >> Yes. >> And did that involve officers searching buildings and clearing buildings throughout campus? >> Yes. You mentioned that there were were there multiple areas that were processed by you and other crime scene analysts in this case. >> Yes, there was. Um would you like me to go over them? >> Let me direct you to a few of them. Well, yes, please mention the the scenes. >> Yes. So, one scene was a courtyard area or I guess what we could also refer to as the amphitheater where the event took place. The other scene would have been the Fulton lie library where there were two B bus stops and then another would have been the wooded area and then the last one would have been the LLC center as well as the ground below. >> All right, let's start with uh let's start with the rooftop. What was the first who was assigned to process the rooftop area? Yeah, the team that was assigned to process that was the Utah Bureau of Forensic Services or also known as our state crime lab. >> And generally, what does processing an area involve? >> Processing includes documentation, sketching as well as taking photographs, um marking as well as labeling evidence and then determining how to package them properly. Um, as well as also just trying to ID anything probitative >> on the rooftop. Was evidence found? >> Yes. >> What types of evidence were found on the rooftop? >> Uh, one item of evidence that that was found was a screwdriver. Another one would have been the what we believe was the shooter's perch. Um, that was determined based or that was easy to see at night. Um using oblique lighting we could see disturbances in the gravel on the rooftop and then on the northeast edge our team also found some swipes on the ledge of that rooftop that was also collected. >> Okay. So northeast ledge and is this the dropping off point? >> Yes it is. >> You said swipes. What does that mean? Swipes. Swipes is um I would describe it as kind of um hand marks or any type of marks that that is left by something that causes some type of disturbance. >> Okay. And where on the ledge were those located? >> Those were located right on the edge of that roof off or sorry, excuse me, right right on the edge of that rooftop. And then right below we also had some other swipes as well as well some other impressions. And then below that was a glass window where we also located some latent prints. >> Okay. Wanted to return to the uh the what you've referred to as the perch the sniper position. Were measurements taken from that sniper position to the tent where Charlie Kirk was seated? >> Yes. >> Do you know the distance? >> Yeah. So the distance from the perch area directly to the tent where Mr. perk was sitting was approximately 415 ft. Um if you take into and this if you break it down so from the perch to the tent you're looking at is basically like this and this is the perch and this is the tent. >> And now you're describing I'm sorry I have to make a record. You're describing an angle a slope downward from the perch to the location of the tent. Is that accurate? >> Yes, I am. Go ahead. Yeah. So the angle um so again the distance the perch to the tent was approximately 415 ft. If you think about it or without taking into account the elevation drop it was actually 410 ft. So just horizontal straight across and then the elevation difference between or between that is approximately 68 ft. >> Okay. 400 ft 410 ft from the perch to the tent with a 68t vertical drop. Is uh on the rooftop. Were shoe impressions found on the rooftop? >> Did those who process that area of the crime scene collect the latent prints and the shoe impressions that you've talked about? >> Yes, they did. >> And this is a good point to read a stipulation into the record. >> All right. Uh this the language of this has been agreed upon by the parties. The parties stipulate that investigators at the crime scene observed latent fingerprints and a palm print on a grass glass window near the area where the individual landed when the individual jumped from the rooftop of the Losi center at UVU. SBI invest fingerprint examiner Alisa Farmer examined images of these latent fingerprints and the palm print and determined that only three of the latent prints 11B, 11C, and 11D were of comparable or of poor comparable value. She excluded Tyler Robinson as the source of any of these three latent prints. Miss Farmer reviewed other prints on the window and found that they did not have adequate value for comparison. Subsequent examinations of these three latent or actual latent prints by the FBI were inconclusive. That area that was described in that stipulation, is that uh the area in the glass window that you're talking about? >> Yes, that is. >> That's the on the northeast corner of the Losi center. >> Yes. >> And that's the area where we see in a video an individual drop from the roof. >> Yes. >> Want to move on to another area, the courtyard. First, will you describe what that area of the crime scene looked like? >> Yeah. So, when I arrived on scene, you have different steps. Uh, I believe there were maybe like I five or six um covered in grass. Um, when I and again, when I was there, there were personal belongings spread throughout. Uh, there was a tent uh towards the west end of that courtyard area. um as well as some banners and some some barriers as well. >> Was that area processed for evidence as well? >> Yes, it was. >> What was done to process that area? >> Uh photography um as well as just examining the tent area to see if >> And who is assigned to process the courtyard area? >> The FBI. >> Right. I want to take you to another area. uh a wooded area. Was there a wooded area that was processed as well? >> Yes, there was. >> Will you describe first off where that area is? >> Yes. So, this area is located northeast of the Lois Hinter building. Um and it is across from Campus Drive. Your >> honor, could we publish exhibit 35, please? >> Yes. And if I may approach the witness, I'll put up the hard copy of this exhibit as We publish the the Oh, thank you. >> All right. On the screen in front of you, uh will you take a look at exhibit 35? >> Yes. >> Do you recognize that? >> Yes, I do. Will you take a moment to orientate orient yourself on that map and tell me when you've found the relevant points that help you understand what this map is of? >> Yes. >> Do you see the courtyard on that map? >> Yes, I do. >> Um, Kimberly, can you zoom in uh to the courtyard area, kind of the center of the There's a pointer on the screen. Is that the courtyard? >> Yes, that is. >> All right. Now, the low sea center, will you describe um Well, let's jump to the wooded area. Where is the wooded area that you're talking about scene that was processed? >> Yep. The wooded area. If you go from the courtyard and you go northeast, you're going to come across this big parking lot. And then if you just go directly north to that. >> Okay. This is at this point it might be easiest for you to actually indicate on the physical map. If you don't mind just >> Yes. So, the wooded area is approximately right here in this area. >> Okay. So, just just to make a record of the area um on the northern I guess I'll say and north is up on this map. Is that right? >> Yes. >> Uh do you know where Campus Drive is? Yes. Campage Drive is this road that winds right along here. >> Okay. And so that's kind of the windy road that begins in the upper left hand uh corner of the exhibit and winds down through the center of the map and kind of exits to the middle right side of the map. Is that right? >> Yes. >> And the wooded area uh where is it in relation to c uh to the campus drive? >> Uh it is north of campus drive. >> Okay. kind of in the in that uh probably the center right of the map. Is that right? >> Yes, that's correct. >> Um will you describe first off what is on the south side across the street from the wooded area? >> Yes. So on the south side of camp or the south side of the wooded area, we have the computer science building which is to I guess east and then we have a parking structure and we have a a walkway along here in between that connects the computer science building and the Loi Center building and then right uh on to the southwest of the parking lot area is going to be the Loi Center building. >> Okay. Now, you referred to the area across the street from the wooded area as a parking structure. That's a parking lot, right? >> I'm sorry. >> And there is And there is a parking structure on campus, correct? >> Yes, there is. >> But that's different than the parking lot you just mentioned. >> Yes. All right. Uh back to the wooded area. What was found? Was anything found in the wooded area of evidentary value? You can sit down. Thank you. May you repeat your question. >> Was anything of evidentiary value found in the wooded area? >> Yes, in the wooded area, a rightful that was wrapped in a dark colored towel was found there. >> And how did you learn about that? I found that out because uh just a little bit before 6 p.m. 6 p.m. that day, I received a call from Utah County Sheriff's Office who was tasked with searching that area. >> Do you know why they searched that area in the first place? >> Yes. So, they searched that area because I received a video um that was from the UVU security footage. Um this was received by our command post on scene and it showed um who we believe was the shooter on the rooftop run from the southwest corner all the way to the north northeast corner, jump down and then continue to the northeast side of that campus and then cross the street to Campus Drive. And then he was or the suspect was out of camera's view after that. >> Okay. So he ran basically toward and into that wooded area. >> Yes. >> Right. Uh what did what did what were you told when from the sheriff's office? >> I was told that they found a gun and from there I asked them to hold the scene and that myself and FBI ERT team the lead um special agent Kamak would be in route. >> Okay. Uh FBI ERT FBI evidence response team. Right. Yes. >> All right. Did you go to that area? >> Yes, I did. >> Did you observe the the weapon? >> Yes. >> Will you describe what you saw? >> Yeah. What I saw was a rifle that was or at the time before even having removed it, we found or in the bushes we found all you could really see was just a dark towel there. Um so pictures were taken of that and then eventually the gun or the towel was removed. And then once we remove the towel from the bushes is when we uncovered that the towel was wrapped was actually used to wrap the gun in. >> Uh have you reviewed states exhibits 10, >> Do you remember reviewing these? >> Yes. >> Um and are they accurate uh photographs of the weapon when it was recovered and shortly thereafter? >> Yes. I move the admission of states exhibits 10, 10.1, 10.2, and 10.3. >> Defense. >> No additional objection. >> All right. And as it relates to publication, if any, >> yes, I would ask that these be published uh at all three levels. >> All right. Any input, Mr. BS? >> Objection. >> All right. I'll note the standing objections from defense. Those are overruled. And 10 >> 10 >> 10 10.1 10.2 2 10.3 are admitted uh for into evidence and may be published both in the courtroom and uh through the use of the camera. If we can please publish number 10. Thank you. Uh you have in front of you on the screen plaintiff's exhibit 10. Will you describe what we're looking at here? >> Yes. What we are looking at here is actually the bushes where the dark colored towel and the gun were found. Um, you can kind of see the dark colored towel towards the right hand side of the screen in the middle, right middle. >> Kimberly, can you zoom in to that area, please? All right. Is this a better view of the towel? >> Yes, it is. >> will you describe what we're looking at in exhibit 10.1? >> Yes. This is a mid-range shot of again the towel that was used or of the towel and if within the bushes. >> All right. When when this was found and you arrived on scene, what happened with that weapon? >> Um, we remove moved it from the bushes or say FBI special agent command room who moved it from the bushes. We then placed it on a cardboard box, took pictures of it, and then we removed the towel, packaged the towels separately, took additional pictures of the gun, and then rendered it safe on scene. >> Okay. I'll ask you about that more in a Will you describe what we see here? >> Yeah. So, what you see here now is a dark colored towel and a the rifle that is in the towel and it is in a cardboard box. >> Uh why is the towel still around the gun? >> We wanted to document as to how it was found. Is this the rifle? >> Yes, it is. >> You described uh the making the rifle safe. Will you describe what that is? >> Yeah. So, what that is is that we ensure that there isn't anything in the chamber and that there's no other cartridges in the gun that would have it go off. So to do that, because it is a boltaction gun, we would have to um manipulate the bolt or the lever back and then from there see if anything was in the chamber and then um I say carefully remove anything that was in the chamber and below it. >> All right. Uh what is the difference between a bolt action and an auto ejecting uh gun? >> Yeah, a bolt action is one where the user actually has to manipulate the bolt. So they would actually have to turn or they would actually have to pull it back um and forward to whether it be to load it lock it as well as extract anything that's in it. Unlike a semi-auto gun that is one every single time you pull the trigger um a bullet will be fired and then from there um a casing will be extracted out as well as a new cartridge will then be automatically fed into the chamber. So, if you shoot a bolt-action rifle, does that spent shell casing automatically exit the gun? >> No, it does not. It will stay stay in there until the person that is handling the gun actually removes the or actually pulls the bolt back and then the casing will be extracted out. >> Were you present when this weapon was made safe? >> Yes, I was. >> Will you describe what was found when that happened? >> Yep. So when we rendered the gun safe, we found in it when we removed the bolt back, we found one one cart or one 30 her 30 odd six cartridge case or safe fired cartridge case and we also found three unfired cartridges all with engravings on them. >> Okay. I want to make sure we understand the language you're using. When you say cartridge case and you say cartridge, what do you mean? >> Yep. So a cartridge is basically the round itself, right? the whole round. Um, and the round consists of the cartridge case and then the powder and then the bullet on top. So, the cartridge case, the term is used for um something that has been fired already. A cartridge is is an unfired round. >> Okay. Cartridge is the unfired round that still has the bullet, the powder, and all that. >> Yes. >> Cartridge case is the fired is a is a round that has been fired and it's just the empty brass casing. Is that right? Yes. >> Okay. Was there any So, there was I just want to make sure I understand a fired cartridge case and three unfired cartridges. >> Yes. >> Was there anything distinctive about these items? >> All four of them had engravings on them. >> Did you observe those engravings? >> Yes, I did. >> Did you observe them right there on scene? >> Yes, I did. >> And what was done with Let's talk about first the towel, what was done with the towel? >> The towel was packaged in or it was packaged and then it was eventually provided to the FBI. >> What was done with the firearm? >> The firearm was also packaged and and then provided to the FBI as well. >> Was the firearm did the firearm go to the FBI or the HF? >> Oh, sorry. Correct. It went to it first went to the FBI and then um for to be in their custody and then it was then sent to the ATF lab. >> Okay. And the the rounds the cartridge and cartridge cases. The cartridges and cartridge case. >> Yes. All those were packaged originally provided to the FBI then was sent to the ATF lab. >> Right. And were each of those items tested? >> Yes, they were. >> And in the testing were they photographed? >> Yes. Have you reviewed the photo? And were they photographed by the ATF when they were tested? >> Yes, they were. >> Have you reviewed their photographs? >> Yes. >> And uh were you previously shown states exhibits 19, 20, 21, and 22? >> Yes. And are those the photo are those photographs that the ATF or that you received back from the ATF of those cart cartridges and the cartridge case? >> Yes. >> Did they say have the same appearance and etchings that you saw when you observed them removed from the gun? >> Yes. >> And did those photographs accurately capture those etchings? >> Yes. >> I move to admit states exhibits 19 through 22. >> Mr. Burton >> additional objection. >> All right. I'll I'll note the standing objections. Uh those objections overruled and 19 20 21 and 22 are admitted. And as to publication, Mr. McBride, >> I would move to publish these exhibits at all three levels. >> All right. Any further objection from >> No further objection. >> Thank you. Again, I note the standing objections as are overruled. They may be published both in the courtroom and captured by the media camera. Let us What are we looking at here in exhibit 19? This is the cartridge case that was recovered from the gun. >> And what position was this in in the gun? This was the or this is what was in the chamber. >> Okay. In the chamber meaning uh that's where that's where a cartridge is before it's or when it is fired. Correct. >> Yes. >> Do you notice an inscription or an etching on this cartridge case? >> Yes, I do. >> Will you read what that says? >> Yes. Notice bulge. And if we can go down to page two of the exhibit, will you read what this says? >> Oo, what's >> and to page three? >> This >> and question mark. Correct. >> Yes. Question mark. is this uh a photograph of one of the cartridges that was found in the gun? >> Yes, it is. >> And what are we looking at here in this view of page one on exhibit 20? This is the headstamp of it and it says it is a according to the headstamp it is a Remington 306 Springfield. >> Is that a different caliber than a 223 round? >> Will you look at page two of exhibit 20? Will you read the the markings here? a fascist. >> catch. >> And page four. >> Up arrow, right arrow, down arrow, down arrow, down arrow. And was this another round that was found in the gun? >> Yes. >> Will you read the inscription here? >> O Bella Chow, >> page two. >> Chowo Chow. Another round that was found from the gun. Correct. >> Yes. >> Will you please read the letters here? >> If you read >> this comma you're or correction this, comma, you are >> page three, >> gay. and page four, All right. after processing uh the scenes there at Utah Valley University in Oram. Uh did you did you go to St. George? >> Yes, I did. >> And what was your role in St. George? >> My role was overseeing the execution of the search warrants at both Mr. Robinson's residence as well as his parents residence. >> Was Miss and we've had testimony that Mr. Robinson was uh arrested there. Um, was he fingerprinted and his DNA taken? >> Uh, they were actually taken at the at the Utah County Sheriff's Office jail. >> After he was transported to Utah County. >> Okay. You said that there was uh Oh, and was were items of evidence collected from him after he was arrested? >> Yes, there was. >> From his person. What were those things? They were his clothing that he that he was wearing at the time of his arrest to include shirts, pants, um underwear, as well as shoes, and anything that were in his pockets. >> Do you remember what uh tops he had on? >> I believe it was a maroon top. >> And was there any other uh top layer that he that was collected that you recall? >> I don't recall. >> Okay, let's go to You said there were a couple of homes that were searched there. Is that right? >> Yes. Whose homes was that? >> One of them was where Mr. Robinson and Mr. Twigs resided and the other was Robinson's parents' residence. I >> want to ask you about the defendant's home. What items were Will you describe some of the items that were collected from that home? >> Yep. Some items collected in that home were a Dremel tool and its bits container as well as uh two or two Edmonington boxes of 306 ammunition as well as some uh 306 cartridge cases and a handful of long guns or rubber rifles, a revolver as well as a burned paper. >> All right. I want to ask you about clothing as well. Was any clothing collected from the town home? Yes, there was. >> How about shoes? >> Yes. >> What kind of shoes? >> Uh, two shoes were collected from the home. One was a Converse shoes, gray in color with white laces, I believe, a size 10 and a half. And then another Converse shoes that were also gray, but had gray laces instead, but uh were of a different um size that I can't remember. >> I think you said that you collected uh boxes of ammunition. Do you remember what caliber that ammunition was? >> Yes, sir. a handful, but um the one that I recall was 30 odd six. >> And you also said you found some cartridge cases. >> Uh do you remember what caliber those cartridge cases were? >> If we can display just to the witness Do you recognize states exhibit plaintiff's exhibit 23? >> Yes, I do. >> And uh is that an accurate photograph of the cartridge casings and some of the bullets you found? >> Yes. >> I would move the admission of plaintiffs exhibit 23. >> Mr. B. >> No further objections. I'll note the standing objections by defense overruled those objections and admit into evidence stakes exhibit 23 as to publication. Mr. McBride, >> I would move to published at all three levels. >> All right. It is published to the uh courtroom as well as maybe broadcast via the camera. >> As that's coming up, um where did you find these? I found these in uh what we would consider the spare bedroom right next to Tyler's bedroom um on top of a safe. >> How do you know which bedroom was Tyler's bedroom? >> Um we determined that based off of some documents we found in what we believe was Tyler's bedroom such as mail that was addressed to him as well as some school documents as well. >> And again in relation to will you describe the layout of the house in that area? >> Yep. So, this was on the second floor. As you're coming up the stairs, if you turn the left up the stairs, you're going to run into two bedrooms, and that is on the south end of that residence. Um, the southeast bedroom would be Tyler's, and then the southwest would be the spare bedroom. Um, again, if you go back to the stairs and you make a right-hand turn, that is where um you're now on the north, you're now on the north end of that residence, and that is now Twig's bedroom. And where were these these items here in 23 found? >> These were found on the southwest or in the southwest bedroom. The one right next to Tyler's bedroom. >> And you said on top of a safe? >> Yes. >> Okay. All right. Uh, will you describe what we're looking at in exhibit 23? >> Exhibit 23 are the five cartridge casings we found on top of the safe. um all with her Springfield caliber and one of them had an engraving that said test >> Um you've talked about Springfield Remington. Um are these is this these 30 sixes um are they the same type of round as was found in the gun? >> Yes. All right. Did you find any 306 weapons in that house? >> No, I did not. >> All right. Uh, did you search uh the closet on the first floor? >> Yes, I did. >> What did you find in the closet? >> In the closet, we found on the ground um some shooting targets with perforations in it, as well as on the shelf, we found a Dremel tool with bit with bits container. All right. A Dremel tool with bits. What is a Dremel tool? >> It's basically like a handheld device where you can make etchings or engravings on things. >> What are bits? >> Bits would be um the I guess like a sharp edge or something that you could that would actually cause the etchings that you would put into the tool. >> Is this kind of like a drill bit? >> Yes. >> Okay. And what did you do with the Dremel and the bits? We colle or we've photographed them in place, took additional pictures, um packaged them, then sent them for testing to the ATF. >> All right. You also mentioned targets. Uh were those targets uh photographed? >> Yes, they were. >> I want to show you on your and have you reviewed plaintiffs exhibit 25 before? >> Yes. >> And is that an accurate photograph of those targets that you found? >> Yes. >> I move the admission of states exhibit 25. >> Mr. Bert. >> No further objections. >> All right. I note the standing objection and those objections are overruled. >> Excuse me. Sorry. >> Oh, well, did you want to in regards to publication? >> Yes. I'm so used to admission before publishing. I would move to publish those at all three levels. >> All right. Any further comment, Mr. B? >> No further objection >> again. All right. Noting the uh standing objections. Those are overruled. uh states cip 25 is admitted into evidence and may be published in the courtroom as well as captured by the media camera. >> Will you describe what we're looking at here? >> Yes. So these were shooting targets we found in the closet and each of them have perforation uh sorry excuse me have perforations in them. >> You say perforations what do you mean? >> Uh holes in them. >> Those holes consistent with >> junction foundation on this opinion. >> Mr. McBride, do you want to weigh in upon that objection? >> Um, no. I'll submit it. I'll lay foundation if uh the objection sustained. >> I'll sustain the objection. >> All right. Uh, holes. Um, have you ever seen Have you ever shot a gun before? >> Yes, I have. >> Uh, when you hit a target, what happens to the target when it's hit with a bullet? >> Hit with a bullet. Um, there's holes in or what we call perforations because there's a entrance as well as an exit. Uh looking at states exhibit 25, I'm going to ask the question that was objected to. Um you said there's perforations in th those are those consistent with bullet holes? >> Yes. >> And I want you to I would ask you to describe um where those perforations are uh on exhibit on the there's three targets here, right? >> Yes. >> Let's look at the let's look at the far right target first. Where are the perforations in relation to the bullseye? >> Uh, they're all probably within the seven, six, and eight ring. >> Is there is there a perveration up at the upper leftand corner of that rightmost target? >> Yes, there is. >> Do any of those hit the bullseye? >> No. >> Okay. looking at the center uh target. Uh will you describe where the perforations are in in relation to the bullseye there? >> It's closer but still not it. Um Momo, most of them are usually are to the left of the bullseye and rings I'd say nine and eight. >> All right. And then the leftmost target, you describe where the perforations are there. >> Yeah. Uh the perforations are al are actually closer to the bullseye as well. All right. You described also collecting a burnt note. We can take down 25. Thank you. Will you describe where that note was found and what it looked like to you? >> Yeah, the burn note was found in the trash can located in the kitchen. Um the way it looked like to me it looked like say you're at like a campfire and >> Uh what was done with that? >> That was also collected and that was sent to the FBI for analysis. >> Was it photographed? >> Yes, it was. >> And have you reviewed states exhibit 24? >> Yes. >> Is that a photograph of the note? >> Yes. >> I move the emission of plaintist exhibit 24. >> Mr. Bert. >> No further objections. >> All right. and to publication. >> I move to publish at all three levels. >> All right. Uh I'm going to note the standing objection by defense overrule those objections and states exhibit 24 is admitted into evidence and may be published in the courtroom and may be >> Do you see here on the screen pl exhibit 24? Yes, I do. >> It looks like as to the evidence tag, it's actually upside down. Is that right? >> Yes. >> Is there any Does it look like there's any um writings on that note on that burnt paper? >> Yes. >> Will you point that out for the judge where where the writing is? >> Yep. >> And describe and describe what you're pointing at kind of the general location on the image. >> Yeah. So, um, the part that I'm pointing out is the paper that you can kind of you can still see, um, the lines in them and as well as some handwriting as well to the edge the the left edge edge of that piece of paper. >> All right. Have you also observed the the image of a note that was recovered from last Twig's phone? Yes. >> And I'd like to show you um side by side And there on the left you see exhibit Well, let's there on the left we see exhibit 24. Do you see that? >> Yes, I do. >> And on the right you see excuse me on the right is 24. On the left it's 16. >> Let me stop you, Mr. McBride. I'm not sure. Is this being broadcast? >> Let's Let's take that down. Um, all right. Exhibit 24. Thank you, your honor. Um, excuse me. Exhibit 16.3. I would move to publish exhibit 16.3 and 24 side by side. I think they're So 16.3 has already been adidmitted >> without electron >> and and I don't remember the court's order if this was to be captured by electronic media or not. >> No, it was not. >> Okay. >> Is is that the does that comport with defense's memory as well? >> It does. >> All right. So 16.3 was published to the courtroom but not to be captured by the media. So >> as it's and what is your request >> to comply with court's order? >> All right. So 16.3 and um exhibit 24 may be published side by side only to the courtroom itself and not on to be captured by the camera. also acknowledging that the magistrate can weigh the evidence and is not weighing in on this evidence solely admitting it. Uh well, it's already been admitted, but uh the the court is going to overrule the objection and allow the testimony to be given. Again, whether the court accepts or doesn't accept that will be a determination made when determining probable cause. >> Thank you. Do you see any consistencies uh the defendant's car? >> Yes. >> Where did you collect that from? >> That was collected at the Robinson's parents home. >> And will you describe that vehicle? >> Yep. That vehicle is a say a graycoled right. You you've mentioned that you you sent several items for to the ATF and the FBI for testing. Uh and did you receive reports back from both of those entities with results of their testing? >> Yes, I did. I'd like to show you on the witness's screen only right now or council screens exhibit 30. >> All right. And while you're doing that, Mr. McBride, and also uh could we go ahead and take down states exhibit 35? I know it's just in the background, but just to Plus, plaintiff's exhibit 30. Do you know what this is? >> Yes. This is the ATF report that I received regarding the DNA testing on the gun and cartridge and cartridge casings or sorry, correction, cartridge case and cartridges. Thank you. And is this in the same condition as it was when you received it? >> Yes. Ron, >> I'd move the admission of exhibit 30. Uh, >> Mr. No, no further objection, your honor. >> All right. I note uh the standing objections. Well, and and as to publication, Mr. McBride. >> Yes, your honor. This exhibit deals with uh DNA testing on the rifle and the cartridges. Uh we would move to have it published at all three levels. >> All right. So noting the standing objection by defense, I'm going to overrule that objection. Pursuant to Utah rule of evidence 11:02 uh states exhibit and this is uh 30 >> 30 >> states exhibit 30 uh is admitted into evidence and may be published on screen in the courtroom and for the media camera. I want to ask you a little bit about the format uh because it may be helpful to understand here. But on page one under the exhibits uh we have here uh a list of items that were sent in for testing and comparison. Is that right? >> Yes. >> And throughout the report, the report refers to the items compared by the lab number. Is that right? >> Yes. >> So, if we can scroll down just to the bottom of this first page and here in the DNA analysis section again, we see that uh the report or the author refers the items by their exhibits numbers, right? >> Yes. and same question here, the exhibit number on the left, if we want to know what exhibit number that is, we have to refer back to page one for the description, right? >> Yes. >> Okay. And let's keep going to page three. And if we can just scroll through page three, four, pause right there if you will. This is page four. Uh there's a description section here as well. And that description talks about where the swabbing that's used to compare what was swabbed for the comparison. Is that right? >> Yes. So, as we look at uh this first paragraph here under statistical analysis, if let's see if if you have this notated or no. Um, exhibits 1.1 and 1.4. Do you know what that is referring to? >> Yeah, they're referring to 1.1 is swabs of the stock and grips of the rifle and then 1.4 is swabs of the bolt of the rifle with possible ridge detail and or smudging. >> Okay. Will you read paragraph D? >> Yes. The DNA profiles are at least one trillion times more likely if they originated from Tyler Robinson exhibit 7.1 as a contributor to the major components and three unrelated unknown individuals than if they originated from four unrelated unknown individuals. >> Again, Matt, swabs of the grips and the bolt, stock and grips and bolt. Is that right? >> Yes. >> Okay. Number two, calculation number two. Where is this swab taken from? >> Exhibit 1.2 would be swabs of the butt plate of the rifle. >> And will you read paragraph D here? >> The DNA profile is at least one trillion times more likely if it originated from Tyler Robinson as a major component and four unrelated unknown individuals than if it originated from five unrelated unknown individuals. Looking at calculation number three, exhibit 1.3. What's What areas were swabbed for this comparison? >> 1.3 is swabs of the trigger and trigger guard of the rifle with possible ridge detail and/or smudging. >> We read paragraph D. The DNA profile is at least one trillion times more likely if it originated from Tyler Robinson as a major component and three unrelated unknown individuals than if it originated from four unrelated unknown individuals. calculation number four, exhibits 1.5 and 5.1. >> What are those? >> Sorry. 1.5 are swabs of the fore end of the rear rifle and 5.1 is swabs of one third 30 odd six cartridge >> and again that cartridge came from where? >> From the firearm. >> Will you read paragraph D? The DNA profiles are at least one trillion times more likely if they originated from Tyler Robinson as the major components and two unrelated unknown individuals than if they originated from three unrelated unknown individuals. >> All right, let's look at calculation number five, 1.6 and 3.1. What are those? >> 1.6 is swabs of the barrel of the rifle with possible ridge detail and or smudging. And 3.1 is swabs of one 3006 cartridge. >> And that 3006 cartridge came from where? >> From the firearm. >> We read paragraph D. >> The DNA profiles are at least one trillion times more likely if they originated from Tyler Robinson as a contributor to the major components and two unrelated unknown individuals than if they originated from three unrelated unknown individuals. >> Okay. uh statistical analysis calculation number six exhibit 1.9. Where is that from? >> 1.9 is the swabs of possible ridge detail and or smudging on the optical access or on the optical accessory on of the rifle. >> Is that a scope? >> Yes. >> Okay. Uh will you read paragraph D? >> The DNA profile is 6.28 28 billion times more likely if it originated from Tyler Robinson as a contributor to the major component and three unrelated unknown individuals than if it originated from four unrelated unknown individuals. >> Okay. On number seven, I'm not going to read that. I think we've gone through this enough. That's the last one in this report. Is that correct? >> Yes. >> All right. Uh we can go to exhibit 32. 31 was And just display this on the screen of I think it might be display. It might >> All right. Thank you. Can you see exhibit 32 on your screen, Agent? >> Yes. >> What is this? This is an ATF report that I received in relation to the gun as well as cartridge case and cartridges. >> And is this uh is this report in the same condition as it was when you received it? >> Yes. >> I move the admission of states exhibit 32. >> Uh so question for you. Was this the report that was previously disclosed in one of the early motions? >> Yes. >> All right. All right. to um Mr. Birds. >> No further objections, rather. >> All right. And for publication level, >> all three levels. >> All right. As it relates to states exhibit 32 is accepted into evidence, may be published in the gallery as well as electronic. The media camera can capture it. And I note that this has been previously disclosed publicly from an earlier filing uh I believe from either late last year or early this year. So for those reasons, it's accepted into evidence and may be published at all levels. Um your honor, uh it's it's 2:30. I probably have 10 more minutes. Would you like to take a recess now or after I finish? >> Let's just do the 10 minutes. >> All right. Uh, exhibit 32 is in front of you. Um, and what was what was being uh, analyzed in this test? >> What was being analyzed would have been the cartridge case as well as the bullet fragment and lead fragments that were recovered from Mr. Kirk at autopsy. >> Right. Same question on structure of the exhibit. Um, the lab numbers and agency numbers are listed here on the first page, right? >> Yes. And if you want to know what the report is talking about, you have to refer back to there, right? >> Yes. >> All right. I want to have you read um if you can scroll down to the bottom of page one. Thank you. I would ask you to read the second line under results of examination. >> Yes. The exhibit one rifle was test fired and found to be in operable condition. The test fires were designated as exhibit 1.11. >> And again, exhibit one rifle is what? is the one that we found um on campus. >> Okay. Exhibit two. Uh if you'll look at the next uh skip the next line and then go to the exhibit 2 cartridge case. Will you read that sentence? >> Yes. The exhibit 2 cartridge case was identified as having been fired in the exhibit one rifle. >> Okay. Now, I want to jump back up to the top where it lists the exhibits two through five. Will you explain what those are and where they came from? >> Yes, that would be the um the items we found in the gun on um on scene. Um and this was the gun that was found in the wooded area. >> And so the cartridge case is the round that had been is the rem is the case that had been fired. >> Yes. >> Okay. So that's number two. All right. Uh I can't remember. Did we already read exhibit that line? Exhibit two cartridge case. will you also look at or read uh the last paragraph on this page? >> Yes. The exhibit 2 cartridge case and exhibit 3 through five cartridges were examined for the presence of comparable two marks. Two marks were located on the exterior of the exhibit 2 cartridge case and exhibit 3 cartridges and print the scribe marks that are consistent with being produced by engravings and or rotary cutting tips commonly found. >> installed in handheld rotary tools such as a Dremel tool. These two marks contain marks of value for comparison if a suspect tool is located. >> Okay, I'd ask to scroll back up to show the exhibit list. Number six, uh what was what is exhibit six? >> Exhibit six is uh the bullet fragment or sorry the bullet jet fragment as well as some other frag fragments that were recovered from Mr. Kirk at the time of autopsy. >> Thank you. Going back to page two, will you read the first full paragraph there beginning with exhibit six? >> Yes. Exhibit six consists of one 30 caliber class deformed damage bullet >> Will you read the next paragraph as well? The exhibit 6A bullet frag or bullet jacket fragment could not be identified or excluded as having been fired from the exhibit one rifle based on an agreement of all discernable class characteristics and neither sufficient agreement nor sufficient disagreement of individual characteristics. The results And if you'll look at uh the the line starting with the exhibit 6B through 6E, will you read that sentence as well? >> The exhibit 6B through 6E lead fragments are not suitable for microscopic comparison. Exhibit 33. If we can show that just to >> You recognize exhibit 33? >> Yes. >> What is that? This is an ATF um biology report on the DR Dremel tool as well as um the cartridge cases that were found on top of the safe in Tyler's home. >> Did you receive this from the ATF in response to your uh request for testing? >> Yes, I did. >> I move the admission of states exhibit 33. >> No further objection. >> Thank you, Mr. Berts. and noting the standing objections by defense and level of publication. Mr. M. >> All three levels >> court overrules the standing objections and states exhibit 20 >> I'm sorry 33 is admitted into evidence and may be published in the courtroom as What was what was being tested here? >> Uh the Dremel tool, the bits container, as well as the cartridges and cartridge >> And up in the top right, it says forensic biology. Is this DNA testing? >> Yes, it is. >> Okay. Format of this is the same as the other report that we already looked at, right? >> Yes. Calculation number one. Uh it's it mentions here exhibit 15.1. Do you know where that swab is from? >> Yep. It is swabs of the buttons of the Dremel tool. >> And will you read paragraph D? >> Yes. The DNA profile is at least one trillion times more likely if it originated from Tyler Robinson as a contributor as a contributor to the major component and two unrelated unknown individuals than if it originated from three unrelated unknown individuals. >> We also read paragraph E. >> The probability of an unrelated individual in the population who has not contributed the DNA to this sample yielding this level of support is less than 1 in one trillion. >> Thank you. I'm not going to ask you to read those paragraphs for the rest of the uh statistical calculations, but I will ask you to go through and identify where the swabbing came from. Exhibit 15.3, which is calculation number two, where's that swab from? >> That's swabs of the cord of the Dremel tool. >> Exhibit 15.5, >> that would be swabs of the longest metal bit of the tool. >> Going on to page five. Um, calculation number four, exhibit 15.6. Six >> 15.6 is swabs of the shortest metal bit >> and calculation number five uh at uh 18.1. >> This is swabs of one etched third odd sex cartridge case. >> What is that? Where did that come from? >> That come from on top of the safe. >> Okay. Is that the one that had the etching test shot? >> Yes. >> Will you read the the paragraph D as it relates to the test shot swab? >> Yes. The DNA profile is at least one trillion times more likely if it originated from Tyler Robinson as a major component and two unrelated unknown individuals than if it originated from three unrelated unknown individuals. The final report is 34. If we can >> What is uh states exhibit 34? >> This is an ATF uh report I received that was comparing tool marks. >> Uh and is this um I move the admission of plaintiffs exhibit 34 and publication Mr. Bert, >> no further for objections. And um All right. So, states exhibit 34 is admitted. Uh the objections, the standing objections by defense are overruled. They may be published in the courtroom and captured by the media camera. Okay. looking at the uh exhibits. Um might have to go back and forth here, And will you read the paragraph that starts with exhibit 18 consists? >> Yes. Exhibit 18 consists of five 3006 Springfield caliber fired cartridge cases designated exhibits 18A through 18E and 15 45 autoc caliber unfired cartridges designated exhibits 18F through 18T. >> Okay. Um 18A. Do you know what 18A is? >> Yes. This would have been the 306 cartridge case with the engravings test shot on it. Okay. >> Will you read the paragraph beginning with the exhibit 18A? The exhibit 18A cartridge case was examined for the presence of comparable to marks. Numerous sets of tumor marks were located on the exterior of the exhibit 18A cartridge case that are consistent with being produced by engravings and or rotary cutting tips commonly found installed in handheld rotary tools such as a Dremel tool. These two marks contain marks of value for comparison. >> Okay. The next paragraph I asked you to read is the one that starts with the exhibit 16. But first I want to ask you, do you know do you know what exhibit 16 is? >> I do not off the top of my head. >> Okay. 18. It also says uh exhibit 18 A through 18E. Do you know what those are? >> 18 A through 18E would be the cartridge cases that were found on top of the safe. Okay. um paragraph or that paragraph exc uh which one again sorry >> uh the one the one starting in exhibit 16 and >> yes the exhibit 16 uh the exhibit 16 and exhibit 18A through 18E cartridge cases were identified as having been fired in the exhibit 1 rifle Okay, let's now jump to um the paragraph beginning the test tool marks. Kimberly, if we could scroll down. Will you please? Uh well, first off, 15A and 15B. Do you know what those are? >> Yes, those would be the longest metal bit and then the shortest metal bit. >> Okay. If you would read Okay. And then also exhibits two, the exhibit two >> This would have been the cartridge case that was found in the gun. >> And exhibits 3, four, and five cartridges. >> They were the ones also found in the gun >> in exhibit 18A >> is the one that was found on the safe. >> Okay. If you'll read the first bullet point there, the exhibit 15A. >> Yes. The exhibit 15A engraving cutter was identified as having made tool marks located on the exhibit 2 cartridge case. exhibit three through five cartridges and exhibit 18A cartridge case. Okay, Uh your honor, I want to uh before I ask to um enter my final line of questioning, uh I would like to show the the witness exhibit 12.1. And this is the video, the UVU surveillance video. Um, let's see. I think it's 12.4 was the surveillance video actually that was >> That's correct. That's the unmarked non-zoomed version. Correct. >> That correct? Yes. >> Yes. That's the one that Yes. >> Uh, and just for now, let's do this on 12.4 and I'll ask you to jump to the 804 mark. Okay. Uh I'd move to publish uh we intend to play about 10 seconds of this video. Um I'd move to publish that at all three levels. >> I'm not sure what the relevance is at this point, so it's hard to object or not. Could ask for a profer as to what it's showing because >> it's not apparent for me to >> understood. Profer is uh there's been testimony about the about prints being found on the glass uh window of this building. This exhibit demonstrates the suspect's behavior in that area. All right. Anything further >> would that I don't have any further objections. >> All right. So that that uh it it may be published. This is already admitted and >> Okay. Before you pause, before you hit play here, uh Sergeant Fina, do you see what's on the screen in front of you? >> Yes, I do. Um, can you see the suspect in this image? >> Yes. >> Will you describe where that suspect is? >> He's on the rooftop. Um, let's say on the gravel part and this would have been close to the northeast side of that building. >> Time stamp is 12:23 47 p.m. Is that right? >> Yes. >> And uh that portion of the image that we see there, the video is uh the top portion of the image slightly to the left of center. Is that right? >> Yes. >> Okay. We're at 801. Kimberly, will you Let's go ahead and pause it. Pausing it at 8:20. Were you able to determine if the suspect touched the glass when he dropped from the roof? >> Not at the time when we first saw the the video? No. >> Okay. Um were you later able to make any determination on that? >> Um yes, because um the video we had was pretty grainy at the time on the comm at the command post and it wasn't until we're actually able to get the footage um directly from UVU. >> And when you actually got that footage, could you zoom in and get a better picture? >> Yes. And were you able to determine at that time whether the suspect touched the window? >> Yes. >> What was your determination? >> Uh we determined that he was not or he >> Thank you. Nothing else. >> All right. Let's go to a break. Uh to defense, I I realize that you began uh talking about your concerns. You have a witness that needs to leave today. Um 10 15 minutes. What's your request? I want to maximize your ability to have time with your witnesses as well as cross if you choose to. >> Thank you. >> How much of a break you want? >> Just 10 minutes is would be fine. >> All right, let's break for 10 minutes and then come back and cross Court is back in session. Noting the presence of all parties. We just ended with a uh direct examination of the sergeant. Turning to defense, Mr. Bert, the witness. >> Good afternoon. Your role in the case was kind of as the traffic uh manager of the whole operation, right? >> That's a good way to put it. Yeah. >> And uh we're talking about multiple agencies besides the SBI, correct? >> Yes. >> Your agency, if I'm correct, wrote a massive report, 229 pages long. >> Yes. >> You've read that. You're familiar with it >> with most of them. Yes. >> Okay. And it's a compilation, right? You authored some reports, but a lot of other people wrote reports about aspects of the investigation. >> Yes. >> And as those reports were getting done, you would kind of read them and decide what needed to get done further. >> Yes. >> Was that one of the roles that you performed in this case? >> Uh, yeah. Yes. As well as consulting with the case agents. >> Okay. Now, if my count is correct, nine of those reports in that larger body of reports was written by you, correct? >> Yes. >> Did I miss any? >> Uh, does that sound about right? >> Yeah. >> Okay. Um, I want to ask you about a couple of those reports. The first report was a report that you uh wrote on September 22nd that documented the overview of the crime scenes. Correct. >> Yes. And there were various crime scenes that you've described on direct examination. Correct. >> Yes. >> One of them was the uh Fulton Library. >> Yes. >> Tell us why that was a potential crime scene. >> Yeah, of course. Um when officers were canvasing the scene, um they were also trying to see right uh the route of the shooter as well as just trying to find the shooter and they deem or they determined that the Fulton Library stood out because there were um unattended items there at the bus stops that were away from the courtyard area and so to them they thought it was suspicious. >> And were certain items seized from and what were they? Yes, you had a backpack, um, a jacket, as well as some gloves, and there may have been some other things. I just don't recall them right now. >> And do you recall what the item numbers were of those seizures? Was it nine? Does that ring a bell? >> I don't remember. >> Uh, those whatever was seized was sent to the FBI lab for processing. >> Yes. >> Um, and along with some information that the suspect may have uh shed some of this these items as he fled. Correct. >> Yes. Was a decision at some time made and and you were requesting that both DNA and other type of analysis get done? >> Yes. >> At some point did you decide to pull a plug on that? >> Um at the time when it was already sent, we didn't have more information as far as whether or not whe whether or not the evidence that were collected there were probative. But eventually you communicated to the lab that those items were not in fact connected with a case and there was no need to do further testing. >> I don't remember communicating that. >> Okay. If that's in the notes of the FBI or the ATF, would that be inconsistent with what you know? >> Uh no. >> Okay. I'm mentioning because some of the reports, the lab reports have those items listed. >> Okay. I just want to be clear that those items eventually you determined were not related to this case. Would that be fair? >> Yeah, that would be fair. >> Okay. The second report, at least as far as I can see, that you wrote uh was on September 24th and it had to do with a looks like a request for a search of firearms. Do you recall that? Um could you elaborate for me on the firearms? >> This document uh documents the NIBIN request for firearms. >> Yes. So that was the request um to conduct um what that stands for. The NIBIN is the National Integrated Ballistics Information Network. Um, it is run by the ATF and that is where we test or we input test fires or cartridge casings, the head stamps and whatnot into a machine that that is the then run through the ATF um to see if there's any other uh cartridge casings that match. >> Um, and nothing of value came from that u part of your investigation. Correct. >> Correct. >> Um, now going back for a minute to the crime scenes. Um, you talked about the wooded area and you used the phrase we seize the towel. Who is we? Who are you referring to when you say we seize the towel? >> We would be SBI as well as FBI. So that would be uh myself as well as FBI evidence response team lead Michelle Kamak or special agent Michelle Kamak. >> So you both reached into the bushes and you both grabbed it and pulled it out. She did, but I was there with her and we were communicating that entire time. >> Okay. So, when you say we sees a tell, what you really mean is she sees a tell and you observed her season. >> Yes. >> And when she sees a tell, um, how did can you describe a little a little bit more detail of how that process took place >> as far as when it was found or when she? >> Yeah. The photographs you showed us, were those the best photos you've got of of that process? That was taken by the FBI. So that's all we got. >> That's all we got. And nobody was videoing the discovery and recovery of that evidence. >> I believe um one of the officers on scene actually had his body camera on. >> And and have you seen that? >> I have not. >> Do you know if there's any documentation of the exact process by which that towel got removed from the rifle and then I guess put back on the rifle, right? No, it was not. >> It was not put back on. >> No. >> Didn't one of the photos show the rifle in the box with a towel over it? >> Yes. >> It wasn't over. It was still wrapped around the gun. >> Okay. But as I understood your testimony, the towel was seized by the FBI agent and then somebody must have reached in and got the gun out. Right. >> No, I'll clarify for you. So the entire time when we retrieved it um the gun was wrapped in the towel. So when special agent come reached in, she grabbed not only the towel but also the gun um and it remain and the towel and the gun remained basically intact lack of a better word and then was placed onto the cardboard box which is one of the photos that was shown earlier. Uh once we documented that and then the towel was removed from the gun. You also mentioned as to the other crime scenes that we processed it, but uh was your role in terms of your actual participation limited to the wooded area or did you uh were you involved in actually seizing evidence at the other locations like the roof? >> Yeah, I was involved in um coordinating all that as and then determining from there where the evidence would go. uh involved in is that the same thing as actually being on the roof and seizing the items or are we talking about something else? >> Talking about something else. >> And what is that something else? >> So after the teams would have packaged all the items, sealed them properly, um create an evidence log. Uh they will then bring it back to the command post and from there we would compile everything and then there was a discussion that was had as to who would take custody. Fair to say that you did not observe yourself the seizure of the screwdriver from the roof. >> Correct. >> Um, and who were the people who were actually conducting that part of the crime scene processing? >> That would have been our state crime lab. Um, who um those two people are part of our state crime lab's crime scene response team. When did you review the video of the suspect uh running toward the area from which he jumped off? >> Uh that would have been I don't know the exact time, but it would have been that day on September 10th. >> You saw that on September 10th. >> Yes. >> And when was the when were the windows processed for the latent fingerprints? >> The windows were processed on September 11th, the next day. And was uh the reason that those latent lists were taken was because you wanted to rule out whether the suspect had touched that window. >> Yes. >> That's what the notes say, right? >> Yes. >> You were not present when that scene was processed either. Correct. >> Uh not the entire time. No. >> Okay. Now, the other reports that I have that you did, and correct me if I'm wrong, is one U report dated September 24th documenting the forensic analysis as of September 24th, summarizing what the what you were hearing back from the ATF and the FBI. >> Yes. >> Okay. And then the fifth report was um again about the crime scene pro uh pro progress of the forensic testing. Right. >> Yes. >> Right. Um and then you have a report here which documents a firearm trace and a firearm seized at um River River Street. >> Yes. >> Nothing of value came of that. Correct. >> Correct. Um, you have a report that has to do with the latent print uh report from your people, SBI. >> Uh, yes. It's not SBI, it's actually the state crime lab, but yes, same department. >> Same department. Just detailing the results of that examination which the stipulation addressed. >> Yes. >> Right. Um, you have a report documenting the transfer of evidence from the FBI to your department. >> Yes. >> And then the last one that I have that you personally wrote has to do with um again summarizing forensic reports. >> Yes. >> Okay. The larger 229page report indicates that there was some investigation done by your agency that involved interviewing associates of Mr. Robinson to see if uh you could develop some profile of him having animosity toward Mr. Mr. uh Kirk. Correct. >> I'm not familiar with that. >> So you weren't involved in that at all? >> No. Uh some of the documents in that large report indicates that uh your agency has also up to the present time been monitoring Mr. Robinson's mail and communications at the jail. >> Correct. >> And are you have you kept a breast of that investigation? >> No. >> Do you know whether anything of value has been uh developed as a result of that? >> No. >> That's all I have. Thank you. >> Thank you, Mr. redirect. >> Nothing. >> All right. May this witness be excused. >> Yes, >> Sergeant. Thank you. >> Thank you. your >> honor, I just want to confirm with the clerk. >> Yeah, let's make sure. Thank you, Mr. Hernander. I appreciate um creating a good record. Judge, if I could just confirm with the court that uh all of the exhibits we have offered have been admitted into evidence. >> All right. So, here's what I have, and my court clerk will certainly correct me if I'm wrong. I have states exhibit 1 2 3 3.1 3.2 4 5.16 6.17 7.18 8.19 10.1 10.2 2 10.3 11 12.1 12.2 12.3 and I believe 12.4 15 16.1 16.2 16.3 16.4 17 and 18 are blank. So no, >> that is correct. >> All right, >> we're not we're not offering 17 and 18. >> All right. 19 20 21 22 23 24 25 The following are blank. 26 27 28 29. >> That's accurate. We're not offering on those numbers. >> I have 30 31 32 33 34 and 35 which have been admitted into evidence. >> That is all that I have record of. All right. Go ahead. >> Does that comport? >> Yes. Would you like to put on the record what were published and what were not published? >> No, that's okay, judge. >> Okay, we're good. And then >> All right. Can I have just a moment? >> Yes. Honor of the state rest arrests its case and chief. Thank you. Turning to defense. All right, just waiting for council to get situated. All right, council, your request. >> Your honor, um, as the court knows, the family has asked that all exhibits admitted into evidence be shown here in open court. We are we are grateful to the court uh for allowing the family to view many or most of the exhibits today that were admitted. They were viewed here openly in court. Um and obviously that was done after the court struck what we think is the appropriate balance after a very thoughtful and thorough analysis. Um I'm going to ask the court to reconsider one of its prior rulings. I understand reconsideration is always a big ask, but I I do think your honor that that if the court were to display publicly or just in the courtroom, exhibit 12.1, which is the enhanced video, um version 12.4, which was played in court, was very hard for the family to view. Uh we we we think that we asked the court since the court's considering it that the family should be able to view it as well. When conducting the appropriate balancing, um the court, as the court knows, can alleviate any concerns about uh proper jury selection with certain tools at its disposal. However, if the court were to deny the family the right to view that video, there's there's no care. It's it's either they get to view it or they don't. So, we would ask the court to reconsider its prior ruling and to display just in the courtroom exhibit 12.1, which is the enhanced video. Thank you, your honor. >> Thank you. Turning to the parties, uh, starting with the state, Mr. Gernander. >> Thank you, judge. Uh, the state does not oppose, um, publishing 12 point uh, four in the courtroom. I think we've tried to make it very clear throughout this case that we favor openness and transparency as much as appropriate. I'll submit it on that. >> Thank you, Mr. Gander. To defense, Mr. Bert, >> my apologies. That's 12.1, not 12.4. >> Thank you. Judge, at this point in the proceeding, we're asking the court to keep focus on the purpose of this hearing. And as the justice has said in the Estie's case, the purpose of a trial, and I know this isn't a trial, but the same logic applies, is to determine the defendant's guilt. It's not to educate the public or the victim's family or the world on what evidence the government or the state has. As a court knows, we have witnessed uh availability problems. We spent the bulk of today and yesterday arguing about uh nothing to do with the evidence in the case, but with rights of third parties. And it's appropriate for the court to consider that. But at some point, I think the court has to return to the purpose of these hearings, which is to uh expeditiously uh hear the evidence and then determine probable cause. And I want to point out to the court, Miss Kirk has been very adept at holding press conferences at which she has revealed evidence. She has uh represented that the state is her attorney. She has access to all the evidence that the state has publicized and that the media and her own lawyer argues is already in the public domain. So, they're perfectly free to go outside this courtroom under the court's uh protective order. They're free to go out and hold press conferences and announce to the world outside the courtroom what they think the evidence is. They have a the availability of that evidence. But the court's role, I think, at some point, is to exercise some control, move the case forward, and especially when we have witness availability problems. And I'd ask the court, whatever the court does, if you're going to allow revisiting or replaying of evidence for the sole purpose of informing the world or Miss Kirk or anybody else, that the court do it at the end of the process and not at this point where we will be deprived of our ability to call this witness because she has to be done today. >> Thank you, Mr. B. >> Thank you. briefly >> and I say that because time is of the essence, not because I don't want to hear what you have to say. >> I I understand, but there was a lot that was just said that's just not true. >> Well, so let let me let me let me put this in a spot where we need to be. I And I understand that there's opinions, but I have to keep this to the probable cause. I don't want this to go to a back and forth about issues that lie outside of probable cause. And I realize statements are made and and as as the victim's representative attorney, you want to address it. So I I I just I will hear you, but I I we need to be brief. So if you can be succinct, I I definitely want to hear what you have to say. >> Your honor, I most always I am almost always brief. I promise you. Uh the family has not seen this video. It hasn't. It doesn't have access to the evidence the state has. The state is the state and Mrs. Kirk and the family are have their representatives. that there's a completely distortion of of reality that was just put forth. Uh um and this isn't about educating anybody anybody about anything. This is about allowing the family to see the evidence that's been gathered after a 10-month investigation in which a father a husband was assassinated. That's what this is about. So we ask you to please allow the family to view the video like the court has viewed in order to allow the family to process this moment. >> Thank you. >> Anything further before the court issues its ruling and we go from there? >> Not from the state. >> All right. Defense. >> No. >> All right. All right. Uh so I recognize that uh the Utah Constitution under article 1 section 28 recognizes uh victim's rights and the court respects those rights and as has been previously stated balances those rights with the constitutional rights of all parties. I will reserve my ruling on that uh and maybe revisited tomorrow. But because we have an exp we have an issue of expiring time and one witness that needs to leave today. I need to turn to that. I'm not ruling that that cannot happen. But for today, we need to focus on this uh to to getting this defense witness on the stand and off the stand. And so please, if I do not remember, uh the parties can remind me uh and we can revisit this tomorrow. So again, I'm not saying yes. I'm not saying no. I'm simply saying we need to get to this witness and and I'm happy to readress this tomorrow. Okay. All right, Mr. B. Samantha K. >> All right. Samantha Carer is being requested. Uh if you can go ahead and uh retrieve her, >> bring her into the courtroom. Is somebody grabbing her? >> Yes. >> Okay. Thank you, Mr. Bird. I just couldn't tell and All right, Mr. Carter, if you wouldn't mind coming forward right by your baiff Please raise your hand. Do you tell me, sir, that the testimony you're about to give now before the court will be the truth, the whole truth, and nothing but the truth to help you God. >> I do. >> Thank you. You can sit. >> All right. Thank you, ma'am. If you wouldn't mind coming forward, having a seat at the witness stand. To your left is a water bottle if you choose. It looks like you brought your own as well. And um after you're situated uh if you wouldn't mind pulling that microphone toward you uh just to ensure that your testimony is picked up on the record. Mr. Bert, your witness. >> Thank you. Good afternoon. Could you tell us your name, please? >> Yes. My name is Samantha Carner. >> And Miss Carner, what do you do for a living? >> I am a firearm and toolark examiner. >> And where are you stationed? I currently work at the forensic science laboratory in Washington for the Bureau of Alcohol, Tobacco, Firearms, and Explosives. >> And how long have you been employed at that location? >> A little over six years. >> What generally do you do there? What what area of expertise do you have? >> I am assigned to the firearm and toolark unit. So, I receive items of evidence related to firearms, tools, tool marks, and fired ammunition components. At the request of the state of Utah, did you conduct certain uh examinations relevant to this case? >> I did. Yes. >> Could you bring up uh state 32 in evidence? >> And do you want it uh Mr. B? >> Yes. I I think >> on all screens >> all screens it's admitted and >> I I think approved. >> All right. Let's go ahead and put it on all screens because this was admitted >> All right. Do you recognize uh plaintist exhibit number 32? >> I do. Yes. >> Are you the author of this report? >> I am. Yes. >> Okay. Uh what were you asked to do in relation to the examination that's documented in this report? For the submission one report, I received a firearm cartridge case, three cartridges, one bullet jacket fragment, and four lead fragments. I was asked to test fire the firearm and compare the test fires to the cartridge case and the bullet jacket fragment. I also was asked to do a toolmark characterization on the cartridge case and the cartridges. And then I also ran a general rifling characteristic search on the bullet jacket fragment. Okay. And uh are your conclusions >> Yes. >> Um could you turn to page two of the report? Second bottom of the page. Those two paragraphs, please. Did you write in your report, these conclusions conform with the relevant Department of Justice policy on uniform language for testimony? >> Yes, that is always added to our reports. >> And uh do you have a standard operating procedure that requires that in each examination you do, this language has to be in there? >> We do. Yes. >> Okay. And I want to ask you to review the document that is referenced in that language which would be and this is just Are you able to view that? >> Yes. >> Is this the ATS uh is this the language referred to in your report? >> It is. Yes. >> The written uh policy of the Department of Justice concerning uniform language for testimony and reports for the forensic firearm tool mark discipline pattern examination. >> It is. Yes. I move that into evidence. >> This is what what is the title of this exhibit? Your >> honor, this would be carer uh 11. >> All right. And what level of publication are you requesting, Mr. B? >> Both public and admittance into evidence >> to this date? >> No objection. >> All right. And carer 11 is admitted into evidence. It may be published on screens and captured by the camera. >> Corner, can you tell us what the purpose and scope of this document is? >> Yes, this is the DOJ Department of Justice's uniform language for testimony and report and it standardizes the appropriate language an examiner will use during reporting and their testimony. And DOJ published this to standardize the wording that examiners would use across their forensic laboratories. >> And was this published in part because of some criticism that uh the prior testimony, not by you, but by other people may have gone beyond the bounds of science. >> I don't know why DOJ published it. It was before my time. >> Do you know how long this has been the policy of the Department of Justice? >> I do not off the top of my head know. Are the reports that you issued in relation to this case in conformity with this policy? >> They are. Yes. >> Okay. Um now, uh could you go to page where it says qualifications of limitation of firearm tool mark discipline examination. You're familiar with that part of the policy, correct? >> I am. Yes. And uh the portion of the policy that says a conclusion provided during testimony or in a report is ultimately an examiner's decision and is not based on a statistically derived or verified measurement or comparison to all other firearms or tool marks. Therefore, an examiner shall not and then it lists several propositions. You're familiar with that language? >> I am. Yes. And it says that an examiner shall not assert that a source identification or a source exclusion conclusion is based on uniqueness of an item of evidence. Your report is not meant to imply something contrary to what's stated here, is it? >> No, it's not meant to contract. >> You're not asserting that a source identification is based on the uniqueness of an item of evidence. >> No, I am not. And the reason you're not doing that is because you haven't exam you haven't examined all possible items of evidence that could be relevant to your comparisons. Correct. >> I have not looked at every firearm that's been manufactured in the ward, nor have I looked at every tool that's been manufactured in the world. That's correct. >> Okay. The second portion of that says an examiner shall not use the term individualize or individ individualization when describing a source conclusion. Did you abide by that policy in this case? >> I did. Yes. >> And you're not expressing a an opinion here that the comparisons that you made are individualized to a particular weapon or a particular cartridge case. Correct. >> My conclusion for one of the exhibits identifies the cartridge case as being fired in the firearm. >> But that's all it says. Yes. >> Right. But you're not asserting that that's an individualized uh identification in the sense that's being used in this policy. Are you? >> No, I am not. >> Okay. And then the third part of that says uh that an examiner shall not assert that two tool marks originated from the same source to the exclusion of all other sources. You're not expressing that opinion either, are you? >> I am not. No. Uh it says an examiner shall not assert that examinations conducted in the forensic fire firearms toolmark discipline are infallible. You're not asserting that. >> I am not. No. >> You're not asserting that. Says the exe shall not assert that there is a zero error rate. Correct. >> You're not making that assertion. >> No. >> Okay. um says an examiner shall not provide a conclusion that includes a statistic or numerical degree of probability except one based except when based on relevant and appropriate data. You didn't conduct such an analysis here. Correct? >> I did not. No. >> Okay. Um, and it says, "An examiner shall not cite the number of examinations conducted in the forensic firearm tool mark discipline performed in his or her career as a direct measure for the accuracy of a conclusion provided. You you didn't do that and you're not doing that here. Correct." >> Correct. Um, and then it says, "An examiner shall not assert that tool two tool marks originated from the same source with absolute or 100% certainty or use the expressions reasonable degree of scientific certainty, reasonable scientific certainty, or similar assertions of reasonable certainty in either reports or testimony unless required to do so by a judge. You're not making any such assertions in this case, are you? >> I am not. >> Okay. All right. Thank you. You can take that down. Now, when you conducted your analysis in this case, uh, and in all cases, do you typically generate a case file that includes proper documentation of your examination? >> I do. Yes. >> And did you do that in this case? >> I did. Um could you display to her alone please exhibit >> case? >> Yes. >> Do you see what's displayed there? >> I do. Yes. >> It's a 47 page. Is this your case file? >> It is. Yes. Did you rely on the documents and photographs uh that are documented here in writing the report that the state introduced in the evidence here? >> How so? >> Uh before you wrote your report, did you photograph items that you were looking at, take other notes, and then use that work product to form the opinions you reached that are documented in the report? The notes are mostly is for initial documentation and evaluation and then yes supplement to the conclusions that I make. Um it's all a representative image of what my conclusions are going to be. So part of it is going into the conclusion statement and then just showing proof of those conclusions. >> Right. And your standard operating procedure requires that you document in your case file the basis for your opinions. Correct. >> Yes. I'd move a six corner six in evidence to this date. >> Is this is this the 47page document? >> Yes. >> I object. I don't see the relevance of the court's probable cause of termination to review a 46-page uh report that includes notes. >> Would you like to respond, Mr. Bur? >> Yes, your honor. This is the basis and documentation of the conclusions reached in the experts brief report which expresses her ultimate conclusion. but does not contain any of the the reason for that conclusion. So, it's important for the court, I think, to understand why and how she reached the conclusions that she did. >> All right. Anything further? >> No. >> Yes. Just that just that without testimony about what the meaning of the notes is and so forth, it is uh more confusing that is probitative. So, under a 403 analysis, I don't think it's admissible nor helpful to the state to the court. >> All right. >> Mr. I intend to focus on particular photographs which document uh what she received in evidence and the comparisons that she did which are also documented in this file in in the way of uh comparison photographs. >> All right. As it relates to the objection, the objection is overruled. I find that this is relevant as it relates to states exhibit 30 which was admitted as well as states exhibit 32 which is admitted and the state is uh able to do cross-examination on this witness as it relates to this report and so it is admitted and may be published on all levels in the courtroom and uh on through the media. >> Thank you Miss Coner. One of the one of the items you were asked to look at was as described in your report, one bullet jacket fragment and four lead fragments. Correct? >> Yes. >> Were you informed at some point that there was a discrepancy between what you were examining and what had been documented by the medical examiner in terms of the number of bullet fragments? >> I was. Yes. >> Were you asked to see if maybe the ATF had lost certain portions of the evidence? >> No, I was not. >> Right. Do do you think and and was it your understanding that there were originally seven bullet fragments, but you ended up with four? >> I was alerted that there was potentially seven fragments from the medical examiner in a photo just a few months ago. >> Okay. You're clear though that when you got the evidence, uh, it was in a sealed condition. Correct. >> It was. Yes. >> And when you open what was it? An envelope. A small individual manila envelope. Yes. >> And did you uh take the contents of the envelope containing the bullet and take photographs of it? >> I did. Yes. >> Okay. Um could you display page 41 of 47 >> Um, and tell us what's depicted here. >> Yes. This is a picture of the as received condition of exhibit 6 in its entirety. That's the top picture. So, you'll see exhibit 6A all the way through 6E in descending order. And then the bottom two photos on the left is the exhibit 6A bullet jacket fragment and that is the view of the exterior. And then the photograph on the right is the exhibit 6A bullet jacket fragment and that's the view of the interior of it. >> Okay. Now after you documented what the bullet and the fragments look like, did you do certain um procedures on the bullet fra the larger bullet fragment? >> I did. Yes. >> And what did you do? I cleaned the bullet jacket fragment and I also peeled the the petals back. If you think of a banana and peeling the skin away from the interior, it's almost like doing that. As you can see from the photo, the petals have been crumpled in on themselves. So, in order for me to see the land and groove impressions, which holds those individual characteristics needed for a comparison, I have to do some maneuvering of those pedals. >> And how do you do that? to use an instrument to peel back the portions that you want to look at. >> I use pliers. >> Okay. And after you did that uh procedure, did you then photograph the larger bullet fragment itself? >> I did. Yes. >> Were the smaller fragments essentially not of any value to you in terms of doing comparisons? >> They were deemed unsuitable, which means there are no microscopic marks of value for comparison. >> Okay. But the larger fragment you after you um did the process you just explained you then photographed it again. Correct. >> That is correct. Yes. >> Could you display the next page of this exhibit please? Is tell us what we see here. >> This is two pictures of that 6A bullet jacket fragment after the examination preparation. So the top photo is going to be the interior of 6A and then the bottom photo is the exterior of 6A. >> Now after you took these photographs, did you proceed to do something to determine whether you had either class, individual, or subclass characteristics? >> Yes. >> Tell the court what that means. I to start when I do my initial examination of a bullet jacket fragment like this, I'm going to look at its class characteristics. Uh class characteristics are the least restrictive set of characteristics I use in my comparison process. And these are the design features that are given to a large group of items that characterize them together. So for a bullet, you could think of the diameter of the bullet, the number of landing grooves, the direction of twist, and the type of rifling. So I would go through and look at the class characteristics of this bullet jacket fragment which was six right conventional rifling. Then I'd move on to look at any subclass characteristics. And subclass characteristics are more restricted than class but less than individual. And they are design features that can be put on an object during the manufacturing process which is consistent among items that are made by a tool that's in a specific state of wear. So what I mean by that is it's going to be a subset of a larger group which is why it's not used for indiv or excuse me for identification or comparison purposes for the basis of a conclusion. But when you think of something that's made through a mold process when that mold comes together it creates a seam line and that seam line is going to be represented on all the items that it makes. So that's why you can't use it for the identification process because it's going to be on a lot of items which is why it's a subset of the group. Then I move on at looking at the individual characteristics and these are imperfections and irregularities that arise from the manufacturing process. And then there's also individual characteristics can arise from wear, use and abuse of a tool. And these individual characteristics is what is going to be distinct to that tool and that's why they're used for the identification process. So again I did a examination of its class characteristics looked for any subclass characteristics and then looked to see if there was individual characteristics and the land and groove impressions sufficient enough of marks and values to do a comparison process. >> Now once you have the class characteristics of a bullet, can you narrow the range of firearms that could have fired it just based on class characteristics? >> You can. Yes. And is caliber a class characteristic or an individual or a subclass characteristic? >> It's going to be a class characteristic because a lot of firearms will have the same class or excuse me the same caliber. >> Um, did you measure the diameter of the bullet? >> I did. Yes. >> And and did you end up with a range where it could have been certain range of length or diameter? >> I did. Yes. >> And what what was your reading? >> The range of the diameter for the 6A bullet jacket fragment was 286 to301 in. >> Okay. What page are you looking at? >> It's page 13. >> Okay. Now, diameter measurement. And then on the right there, LIMP, that's a measurement of the land width. Correct. >> The land impression width. Yes. >> And uh these are all general characteristic or class characteristics, right? >> Correct. >> Okay. Now once you had that this and and also that it was you said what's called the rifling was to the right. Correct. >> The direction of twist. Yes. >> Yeah. The the lingo is six to the right. Meaning >> six right. Yes. >> Yeah. And that's a class characteristic. >> Correct. So once you had the the uh diameter of the base of the bullet and and did you have some difficulty because of the damage to the bullet in exactly measuring it? >> The reason I provided a range was because of the damage and deformity to the base. So at times it wasn't a perfect circle. So it was important to me to give a range of what those diameter measurements were. Once you have the diameter and the rifling characteristics and the land and groove measurements, can you then plug those measurements into a database and narrow down the class of weapons from which this bullet could have been fired? >> The general rifling characteristics search will use those class characteristics and will generate a list of possible firearms that could have fired the bullet, but that list is not all-inclusive. It is just used as an investigative tool. Could you tell us what we're looking at here? >> This is the results of that general rifling characteristic or the GRC search. >> All right. And and what did you determine in terms of just based on the class characteristics, what weapons could have fired the 6A bullet? There were several different 30 caliber class firearms that could have fired the bullet >> and they're listed here. Correct. >> Correct. >> Could you tell us what the initials PI and RI and PR mean in the far right hand column? >> They refer to different types of firearms. So, rifles, revolvers, uh machine guns, any type of firearm. >> And and what are the pistol ones? How is that designated? PI or >> correct >> and and what is RB? >> Bolt action. >> Bolt action. So based on the class characteristics, any of these weapons could have fired that bullet. >> They could have possibly fired the bullet jacket fragment. Yes. >> Okay. Now let's go back to the examination of the other two measures. Subclass characteristics and individual characteristics is one of the reasons you look at sub charact subclass characteristics because they can be confused with individual characteristics. >> That is a concern. Yes. >> In fact, your manual says that, right? It's important to rule in or out subclass characteristics to avoid the danger of confusing them with individual characteristics. >> I'm not sure if our manual says it verbatim. And it says that we do need to assess every piece of evidence for possible subclass characteristics. >> And what is the reason for that? >> Subclass characteristics can be similar to individual characteristics. However, trained examiners are able to notice the difference between subclass and individual. Subclass characteristics are not always present on an item. It's possible, but not always present. And they tend to look a certain way. They're going to be uniform in their appearance. They're going to be spaced in a way that's more uniform. If you think of circles, those circles could be a distance between each other in the same distance every time and they will look almost the exact same every time. >> Now, does your laboratory have a certain protocols for conducting these comparisons? >> We have procedures for comparison. Yes. Like taking photographs. Yes. Well, but also procedures for uh for instance, you have a a document called examination and comparison of unfired and fired ammunition and components that deals specifically with the procedures to be followed for the kind of examination you did here. Correct? >> Yes. I believe that refers to the minimal documentation necessary for a piece of evidence. And and one of those standard operating procedure requirements is document observations and evaluate for the potential of subclass characteristics on the relevant tool working surface. Right? >> Correct. Yes. >> And you did that in this case, correct? >> I did. Yes. >> Okay. And what conclusions did you reach? >> Can I refer to my notes, please? My subclass assessment that's on page 13 of my report states, "Stria observed in the land and groove impressions contain starts and stops, are not coarse, and vary in their height, width, depth, and spatial arrangement. No apparent subclass influence." >> Okay. And what page was that again? >> Page 13. are not coarse. I think I understand that. Uh and vary in their height, width, depth and spatial arrangement. Did you measure the height, width, depth of the uh land and groove impressions? >> The land and groove impression widths? Yes, I did. And how about the stria? That's different than the landing groove impression, right? >> Correct. Yes. >> You didn't measure the height, width, and depth of those marks. Correct. >> No, I did not. >> Okay. Um, and your protocol says, does it not? Due to their similarity to and potential confusion with individual characteristics, it is essential that the evidence be evaluated for the potential of subclass characteristics. >> It does. Yes. >> That's the whole purpose of why you're doing that part of the exam, right? >> Correct. Yes. And anywhere in your protocols, does it specify what you're looking for or is it just up to you to decide what isn't what is not a subclass characteristic? >> Subclass characteristics are a very large part of the training process to become a firearm and tool mark examiner. There are modules that are taught where you're trained to recognize what subclass characteristics look like, what manufacturing techniques might lend to more subclass characteristics. So I am trained to know what it looks like. >> Okay. And my question now was does your uh standard operating procedure set out here are the things you should be looking for? For instance, does it say if uh what the marks you're looking at are not coarse and vary in their height, weight, depth, and spatial arrangement. Or if they're perpendicular on the barrel, that indicates that it's not a subclass characteristic. Is there anything like that in the manual? >> No, there is not. >> Okay. Um, did you inspect the interior of this barrel? >> I did. Yes. >> And did you notice uh whether it had any debris or dust in it? >> I believe my notes state that debris and dust was observed in the inside of the barrel. Yes. >> Okay. And could you further characterize what that was? Debris. >> I think it says dust. So, I would say >> dust. What can cause dust to get inside of a barrel? >> A plethora of things. I'm not sure why something is ever in a barrel. >> Okay. Um, so you determine here, you ruled out uh subclass characteristics, correct? >> Yes. >> Then the next part of the examination was determining whether you had any individual characteristics on the bullet. Correct. >> Yes. >> And what did you conclude in that regard? that there were microscopic marks of value worthy of comparison or yes individual character characteristics in the landing group impressions >> and does your standard operating procedure uh have any guidance in terms of how you go about determining that? >> No, I do not believe so. >> Okay. Um and then once you determine that you have items of uh value on the question bullet, do you then do something to produce test bullets? Yes, part of the comparison process when there is a firearm that we receive is to test fire it to make pristine samples to see if reproducible individual marks of value is being is on the bullet or the cartridge cases. >> How many test fires did you uh produce in this case? >> I made three sets. So, six total. >> Six. Is that your standard uh number of test fires? >> Our standard operating procedures state that you need at least two. There is not a maximum number that we are allowed to do. It's the discretion of the examiner. >> Were you informed by other investigators working on the case that this particular weapon was manufactured in Germany in 1938? >> I was not. No. >> Um, you did not review a report from an ATF agent who investigated that issue? >> No, I don't believe so. No. >> In doing your examinations, is important to know something about the manufacturing process of the of the weapon? It is helpful to know how a barrel or any part of the firearm is manufactured. Yes. >> And why is that? >> Certain manufacturing techniques will lend to that individual characteristics. So grinding is a method that is known to leave individual characteristics on a tool. So if a item that I receive I can tell is finished or manufactured by grinding, it already gives me an indication that individual characteristics would be left from that tool to the tool mark. Now once you have your six test fires then you did some comparison between the test fires right? >> That is correct. Yes. >> And why do you do that? >> That establishes whether or not there are individual reproducible marks of value on the test fires. It's important to know that because if there's not reproducibility amongst the test fires, then there's a chance to say, "Oh, it's not going to reproduce on the evidence and I wouldn't have anything to compare it to." And have you had cases where you fired the six test fires and you don't get reproducible marks? >> Not that I can recall. >> And when you when you do your comparisons, just looking at the test fires, do you get uh situations where there's some dissimilarities between those two fired bullets from from your test fires? >> Yes, there are at times there'll be dis there won't be there will be disagreement amongst the individual characteristics. Even in test fires, you have to think of it as when a bullet travels down a barrel or a cartridge case interacts with a firearm, the marks aren't going to be left onto that item the same way 100% of the time. It's almost like a stamp. If you know you're using a stamp and you put it in ink and then you put it on two separate areas of an item, it might look a little different just from the way the stamp was placed. It's the same thing with a bullet traveling down a barrel or a cartridge case coming into contact with a firearm. So even when you know a bullet is fired from the same weapon, you can have six bullets fired and when you start comparing them, you will see differences between uh each bullet. >> There is a possibility to see some areas of disagreement. However, if I'm rendering an identification and saying there is reproducible individual marks of value on these test fires, there will be an overwhelming amount of sufficient agreement of that individual characteristic. Now, when you're doing these comparisons, you use something called the AFT theory of identification, don't you? >> Yes. The afty theory of identification. >> Right. And uh take a look. And that that's the standard that you used in this case to draw the conclusions that you made in the report that I showed to you earlier. Correct. That is the theory stating how an examiner is able to come to a conclusion when examining two or more sets of tool marks. And yes, that is how I go through my examination and how I come up with my conclusion. Yes. >> Okay. And is what is AFTY? >> AFTY is the association of firearm and tool examiners. It's the governing body of the firearm and toolark community whose primary go primary goal is to further research in continue to show information about manufacturing and the evolution of firearm toolmark examination. They hold annual seminars, publish a glossery of terminologies used by the firearm community and they also have a peer-reviewed published journal. >> Peer-review published journal. Can I join a >> you can? Most of the firearms community or excuse members are fireman toolmark examiners. There are also technical adviserss and associate members. >> Those members are not usually firearm toolmark examiners but they still have a livelihood in firearm and toolmark examination meaning they conduct research or they are involved in products or manufacturing. And anybody is allowed to come to the annual seminar or get the journal. You just have to pay the fee. just have to pay the fee. Okay. Um, could you display to the witness >> It appears to be the Afty theory of identification. Yes. >> I move that into evidence. Sher, >> what is it? >> Uh, this is the standard that she used to make the comparisons in this case. Correct. >> Would this be Carer 27? >> Uh, this would be Carer 27, your honor, >> to the state. >> Your honor, if I may, may dial the witness on this exhibit. I've never seen it before, I don't think. >> All right. Sure. Let's go ahead and do When was the last time you reviewed this document? >> I'm not sure off the top of my head. >> Um, can you testify as to its uh accuracy by looking at it now? Not verbatim. No. Your >> honor, no more questions. My objection is lack of foundation. >> does this document accurately state what the theory is? >> May I take a moment to read through? >> Sure. I believe the some something I think the first statement is different than what I can recall but overall it is what the aptia theory states. >> Okay. and and your ATF protocol refers specifically to the afty theory of identification, does it not? >> It does. Yes. >> Okay. So, is there any difference between what's in 27 and what's in your manual? >> Again, I don't remember without looking at them side by side. >> Okay. Um, let me get that in front of you. exhibit 12 and go to theory of identification. and range of conclusions. Page one of three. I don't have a bait on it. It's document Qu. I recognize this as something that comes from our SOPs. Yes. >> Okay. And it refers to the Afty theory of identification, right? >> It does. Yes. >> Same same theory that's displayed in 27. >> Yes. >> Okay. So, I'd renew my offer on 27. Your honor, the objection stands. Language matters. Um without knowing what uh if this language is identical to what she's trained on, that can make a big difference uh whether the word sufficient or adequate is used. Um these are scientific principles and we need to be precise in the language that's used. The witness cannot authenticate uh the exhibit that's been offered. So it should not be received into evidence. >> M goes to weight, not admissibility. be free to question her about any differences, but I think she's laid a foundation that the theory is the same. So, >> all right. Well, I I remind the parties that this is a probable cause finding. Uh and so, as it relates to uh what's been presented, the witness has said that it looks familiar. Again, I don't want to quote you. I don't remember the exact phrase, but she