Preliminary Hearing — Day 5 (July 10, 2026)

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Preliminary Hearing — Day 5 (July 10, 2026)
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=bFwe5CwDudk) — verbatim ASR, not a certified court transcript.

in accordance with the court to court morning >> and I apologize. Would you mind putting your names on the record? >> Tess Crowley, Megan Three with KSL. >> Thank you. >> Have you both reviewed the court standing decorum order? >> Yes. Yes. >> Do you understand the requirements set forth in that order as it applies to your activities today? >> Yes. >> Do you require additional time to review the order or to adjust equipment to ensure compliance? >> No. No. Do you anticipate any difficulty complying with the order? >> No. >> Before we begin this morning, the court wishes to acknowledge the importance of the safety, dignity, and well-being of all those who are present or who may be present during these proceedings, including the parties, council, witnesses, court staff, and members of the public. The court is also mindful of its solemn solemn obligation to protect and uphold the constitutional rights of Mr. Robinson and Miss Kirk. In furtherance of those important interests, all persons attending these proceedings are reminded that portable electronic devices are not permitted in the courtroom or on the fourth floor. Cell phones are not permitted in the courtroom unless expressly authorized. Any unauthorized possession or use of a cell phone or electronic device in the courtroom may be addressed by the court. For those individuals who have a cell phone, I I invite you to join me as I silence my cell phone to ensure that the proceedings today can proceed without distraction. The court also expects every person in attendance will be treated with the dignity and respect to which they are entitled. Consistent with this court's standing decorum order, all spectators shall remain quiet, civil, and orderly at all times. Spectators shall not engage in conduct that is distracting, disruptive, provocative, disrespectful, univil, or threatening in any manner. Spectators shall not make audible comments of any kind, shall not shake or nod their heads, and shall not make gestures or of other visible reactions during the hearing. Spectators shall also not wear or display pins, buttons, signs, clothing, photographs, or other items expressing support for or in opposition to any person connected with this case or expressing any position concerning the status of this case as a capital offense. The court appreciates the cooperation of all present in maintaining a courtroom environment that is safe, respectful, and orderly and faithful to the rights and dignity of All rights. My understanding is uh the parties wish to address an issue before we get started. Is that correct? >> We may. Thank you, your honor, and good morning. Um, I passed up to the court after providing um, copies of it to council for the state and council for the media um, a single piece of paper. Does the court have that? >> I do. Thank you, Mr. Novak. >> Thank you, your honor. So, um, every morning this court has a colloquy with the, um, camera operators about their ability to comply with this court's orders. Uh, and they acknowledge that they understand the order and that they could comply with it. And the court asks them if they have any problem with it, and they state to the court that they do not have a problem with it. We also spent many, many, many hours of court time addressing which exhibits will and will not be published through the electronic media. And this exhibit um the court ordered would not be published through the electronic media and it was. And without belaboring the point, the court can imagine our concern that the media and the state who control this exhibit and the publication of this exhibit in the courtroom as per the court's orders failed to comply with this court's orders after all of the effort that we made and the court made to make sure that the court um balanced everybody's rights. including the rights that we're concerned about which are Mr. Robinson's. Um no doubt the um council for the media and council for the state will say that it was a very very brief mistake that it um was corrected as soon as they realized the error. But it's done. It's out there. It's photographed. Um, I'm informed secondhand that if I want to buy this image and maybe even have it framed and put behind museum quality glass, I can do so and put it up um in my office. Obviously, I'm not going to do that. But my point is, it doesn't matter how long the court's order was violated when we live in an electronic world. It's done and it's permanent. And we just wanted the record to be clear that we're concerned that the court's orders have been violated and they've been order violated with respect to an order that was specifically designed to protect Mr. Robinson's right to a fair trial. And I don't want to belabor the point any further. Um I'm also not going to refer to the exhibit with any more specificity because it's not necessary. Is there a requested remedy or potential sanction that you feel is warranted given the actions which you have outlined this morning? >> I think that we would like to think um when I say we, I mean Mr. Robinson's council about that. We have, as the court knows, repeatedly asked this court moved this court not to have electronic broadcast of this proceeding um of any of the proceedings and specifically this proceeding. Um the court denied those motions and overruled our objections to the specific EMC requests. So, I think it's a little premature, but I can represent to the court that we will suggest a remedy in advance of the next hearing. >> Well, Mr. Novak, I I appreciate that, but I would ask that if it is uh something that is concerning that it be addressed immediately. So, I I'm not going to wait until uh this I recognize and and appreciate what you have described and this was on my mind a lot last night as well. >> Okay. >> I don't want to sit on this. So, I ask you respectfully to confer with your counsel and and come up with that because I want to address it. I agree it is concerning and it warrants examination and to be addressed immediately, especially as we have a little bit left of our preliminary hearing. So, I want to give it the weight it is needed and I don't disagree with you. >> Then why don't why don't we um pick the court's indulgence. We don't need to empty the courtroom. We can go talk about what we think an appropriate measured sanction would be. Um and we can bring that suggestion back to the court in a few minutes. >> All right. Well, before we do that, I want to turn to the state and to the media to address what you've addressed and then obviously if there's a part two, then then therefore >> and I appreciate the invitation and I also appreciate the court's desire to address the consequences if any immediately. >> Thank you, Mr. >> I was not trying to delay it. I just think it's a it's a um it's an issue which which warrants some thought. The court has said it gave it some thought. Um we will have a suggestion very briefly. Thank you your honor. Um I think at the outset it's important to recognize that uh everyone's doing their best here. Um the court is, I know, uh the clerks are, I think the media is, um we certainly are, and the defense is. Um this issue came up in the context of an examination of a witness. One exhibit was published. Um before the uh exhibited issue, uh was also brought onto the screen, I explained what we were going to do. Um, and then the exhibit was brought onto the screen. I reviewed the video uh last night. The camera was captured this for approximately 2 seconds. The camera operator, I think acting in diligence and appropriately, immediately panned as soon as she realized that there was a new exhibit on the screen. The court took it down. As soon as they realized that an exhibit was on the screen, I immediately instructed my parillegal to take it down and it was um defense. I think everyone involved here made quick and appropriate efforts as soon as they realized the mistake had been made to remedy and mitigate that issue. As I explained what I was uh having that what we were going to do, defense council did not object as that happened. And the reason I bring that up is because the requirement for timely objections. Um, moreover, I do want to say um, this exhibit uh, was read into the record. It was allowed to be read into the record earlier. It is also in an earlier p uh pleading uh which is the information uh this portion of that exhibit I understand is in the information and it is largely cumulative of exhibit 16 and 16.1 which were previously uh admitted into evidence and published to the media. Um, finally, uh, we are going to be dealing with, um, a lot of publicity when it comes to media coverage, and I think that's really where the the remedy is going to be addressed. I understand there may be a remedy that needs that can be fashioned today to prevent this kind of thing going forward or going on in the future in this hearing, but I think ultimately that's where this will be addressed. Any other questions for me, your honor? >> Well, not at this time. I will afford you the opportunity obviously to respond when the fence comes back. I I want to weigh this uh and taking in consideration and and I find your representations to be accurate as to what occurred. I I believe that I noticed it and asked for it to be taken down because I have um a live stream on my screen for that very purpose and the sequence I believe I made note and if I'm wrong please correct me. It's it's been a long forward past days, but um that's the only addition that I find uh to the representation and and certainly Mr. Novak, feel free to to correct it if you believe the sequence was any different. I just want to make sure a clear record is being made of what happened in order for whatever happens next to be appropriate and proportional to the actions that occurred. >> No. And that's consistent with my memory. And I also reviewed the video, the live stream as well in preparation for for this issue today. So that's exactly what I think happened from my perspective examining the witness. I did not have a view of the of what was being published to the uh public and the media. And so I think the court immediately as soon as it recognized that brought that to the to everyone's attention. Good morning, your honor. Good morning. Um, appreciate the opportunity to be here to speak on behalf of the media. Um, I I think our understanding of what happened is consistent with what both the defense and the state have said here. Um, so I don't want to belver that point. Um, but here's how I understand them. There's two exhibits at issue. Those exhibits were used yesterday in part because the justosition of those two exhibits might have provided some sort of benefit to the court. The first of those exhibits um was asked to be published through all three of the court's phases. The court said it will be admitted into evidence, be shown in the courtroom, will not be shown on the cameras. That happened about 3 hours into the hearing. That all went smoothly and well that operated exactly as it as it is intended to. That requires the participation of everyone, the court, the defense, the state, uh media, camera operator, all to do that. Well, later in the day, um when in the video I reviewed, this was about 5 hours into the runtime yesterday. The second exhibit that was going to be compared side by side was introduced that also went through that three-step process. In that case, the court said that that could be admitted into evidence, shown to the court, and then also shown shown on the cameras. So it was it was put on the the uh courtroom cameras. Um at that point there was what I think is a a useful practice by the camera operator to wait a beat because sometimes mistakes do happen. Right. In that case though that was authorized. So the camera then panned to the screen which is set up specifically for the camera operator to be able to capture that. Um examination on that exhibit began. Then because the examination seemed to call for that juxtaposition without much warning for anyone involved, the previous exhibit that was intended to be juxtaposed was placed on the screen. Um, from I think a a observer's view who didn't know where the testimony was going without warning. The camera operator, I think quite astutely within seconds recognized this is a different exhibit and recalling the court's prior order recognized I should pan off and did within seconds. I think at the time that was happening the court also caught that and said let's not do that. Now um and that was the end of it. I think that two seconds is about right. I don't want to minimize that. I understand the point that Mr. Novak is making. Um we are operating in some ways on highwire. Um and we are trying to place as many nets as we can. Um and all the parties are working together to try to do that. But in the age in which we live, one of the challenges is that sometimes when something like that is placed on a live screen, someone can screenshot it. And like Mr. Novak said, if they want to um put that for sale on the internet, then then they can. That's why working together to ensure that even small mistakes like that don't happen is critical. and the media has full the media coalition that are given the opportunity and the the benefit of being able to be here to run cameras and to take photographs have complete buyin on that point. There are of course people out there watching a live stream that are not part of our coalition that we can't control and that's why it's so important that we get these pieces right. I do want without going too far into the evidence to note not only that several lines of this exhibit are available publicly in in the information, but that the full text full text, every word of that exhibit is contained in a search warrant in this case that was initially filed on September 17th. This is in the fourth district but in a different court. Um was held for 6 months as search warrants often are. But then on March 17th, March 16th, March 17th was released in full on page 7 of that uh search warrant is the full text of this exhibit. I don't want to suggest that anybody gets the right to say, "Well, I think it's public," the court has said, "Don't show it in the screen." But since I think it is, we'll just come back later on and tell the court it's not a big deal because it's already public. That's that's not how it works. If we say we think it's in the public, the court says, "I understand that, but I'm going to make an order." that order should be adhered to. Um, but I do for the purposes of prejudice, for potential remedy for the court's concern and the court's sleepless nights, I do want the court to know that as well. And members of our coalition have pointed out to me, as we've talked about this, while we take this very seriously, it is true in this case that the full text of that, not the image of the exhibit itself, but the full text is already in the public sphere, has been reported on and is out there. Um, I only want to reinforce to close um the recognition that the media, our coalition, I as an attorney for that coalition have an obligation to make sure that mistakes don't get made. Um, and in this case, even though I believe that the camera operator didn't act in violation of the court's decorum order, you know, didn't do something that was forbidden by that, that there was an order that said, "Don't publish this exhibit." And because it flashed on the screen when the camera operator was filming that screen, that did happen. Um, the media is fully bought in. I, as one of the attorneys and the other attorneys for the media coalition are fully bought in on a goal to make sure that this kind of thing doesn't happen. Um, of course I understand Mr. Novak and the defense's need to make a record and make an objection. And I also recognize and appreciate and understand the court's role in trying to make sure it imposes whatever sort of direction, caution, sanction, response that it believes is needed to make sure that its orders are recognized and adhereed to and I want the court to know that we we'll understand that and we'll um comply with whatever it is that the court orders. >> Thank you. Anything further before we break? Mr. Novak, >> we don't need a break. >> Okay. Well, >> the court wants a break. I I want to I want to review this. I'm be I'm sure there is a stream out there. I want to look at it again in order to uh appreciate the full effect and exposure. I I remember it. But given the nature of this and and in and trying to weigh the constitutional rights of all parties, I want to be thorough and look at it exactly so as we move forward as as I evaluate what's being requested by the parties that I am at the level of of of knowledge of and because what it is, it was on screen. I want to look at it how long, what exactly was on screen. uh and and in in order to be at the point of saying, "Okay, I fully understand. I I mean, I was here. I saw it. I noticed it on the screen." But again, I want to take that extra two minutes to review that. >> I am not suggesting that we rush through this at all. I just wanted the court to understand that our request for the remedy and the sanction. Um we are prepared to share that with the court, but we can certainly wait until the court has had an opportunity to review whatever the court thinks it needs to review. Um, the permanence of this violation of the court order is a different issue from how long it took to correct the the violation. It's a permanent consequence. In other words, that image is out there forever and ever in violation of the court's order, no matter what um actions the court, the state, and the media took to remedy it. because that's the technological world we live in. So that's my response if I may to the arguments. But we can hold our suggestion until the court's ready for it. >> All right. Uh and um if the parties feel it'd be helpful to confer while the court is reviewing it, you may just so that if you choose to, I encourage it. If you don't, I respect that. A court's going to take about five minutes. Again, I just want to review it to be brought up to full speed and and just to to have it freshly in my mind. >> I'm going to make one more point if I may, and that is this is not the first time that this has happened. We had earlier proceedings in this case where the cameras depicted images inside the courtroom that the court had prohibited and the court um imposed certain consequences on the media as a result of that. Um and so that's um just something to keep in mind in my my opinion if I may. Thank you. >> All right. Before the court takes a fivem minute recess and uh to review this, does any party need the benefit of the record based off uh the dialogue between me and Mr. Novak. All right. Not seeing any party respond. The court's in recess. We'll come back Please be seated. Court is back in session. Noting the presence of council and all parties. And where we left off is the court took a a recess to address to review the video. And and I appreciate the patience of the parties as well as everyone in attendance when it comes to constitutional matters and balancing constitutional rights and transparency. This court will take the necessary time to make sure it's given the weight it deserves and it is deserving of every moment that has been spent. Mr. Novak, turning to you and perhaps before you begin, let me go ahead and make a record of what I noted uh that is is at issue. And after I I put this on the record, certainly if if the either side wishes to be heard about the court's understanding, I welcome your comments. Exhibit 24 was displayed on the monitor, visible to the media camera. Exhibit 16 was an inver was displayed on all monitors and appeared on the live stream for approximately three and one half seconds. The con camera operator redirected the camera before any party called attention to the display of exhibit 16. Approximately 16 seconds later, the court observed the image and stated, "Let me stop you, Mr. McBride. I'm not sure. Is this being broadcast?" Mr. McBride responded, "Let's take that down." The full text of exhibit 16 had previously been made public through a search warrant that was publicly available on or before April 2026. The portion displayed on the monitors did not contain the full note and consisted of approximately 78 words. Approximately 15 of those words were included in the information filed on September 16th, 2026. In addition, the full note was read into the record during the preliminary hearing. The court previously ordered that exhibit 16 be admitted into evidence and permitted its display within the courtroom, but prohibited its publication through to the camera used for the live stream. And that concludes the findings of the court as it relates to this issue. Uh, do the parties wish to be heard before we go into what you're requesting about the uh the record on what occurred? >> Your honor, your recitation is accurate. Uh my earlier comments were based on my memory of reviewing this last night. In the recess, I reviewed the feed again and what you have said today is accurate. >> Thank you, Mr. Novak. Any >> No, your honor. I don't I don't um take issue with the court's uh factual summary. >> All right, turning to you, Mr. Novak. >> Thank you, your honor. We're going to renew our request to exclude all electronic media coverage from all future proceedings. That was our motion docketed at number 305 and that included video cameras, still photography, and audio. Um, this is the second time that the court's orders concerning the scope of electronic media coverage have been violated. Um, I'm a baseball fan and I just don't think the court needs to wait for the third strike. Two strikes is enough. If I may, the alternative remedy, which we think is not um wholly adequate, which is why we think it's an alternative um and a less a less desirable alternative, is to for this court to both um reverse its prior order authorizing electronic media coverage of today's hearing, filed an objection to after the court I would say preliminary preliminarily granted the requests for today. That was sort of the chain of events and that the court proactively preclude electronic media coverage um at the last day of the preliminary hearing which will be September 1st. Now, I understand that there has not yet been a request for electronic media coverage for September 1st, but there is no doubt that there will be. Just as this court um previously observed that it wasn't prepared to preclude electronic media coverage at the preliminary hearing because there had not been any requests. There were requests and those that were timely were all granted. The court denied one request because it was not timely for one particular day. So I guess the way it would be is any request for electronic media coverage of September 1st will be denied because that's the appropriate sanction for what happened yesterday. The fact that the content of the exhibit summarized by the state in certain documents which became public because the state didn't take any actions to seal them beyond the six-month period. The fact that the contents of the exhibit were read in open court is not the issue. The issue is when the court issues an order, everybody must comply with it and there are reasons for the order. And the reasons, as this court stated, are to protect Mr. Robinson's right to a fair trial. So, no doubt that the court balanced those prior um ways in which the content of this exhibit had already been disclosed when the court decided that there would not be electronic media coverage. That's a fact that we have all known of that exhibit. That's a fact that we've all been aware of um as as we've gone along. So to summarize and then I will stop because I know we still have a a witness here and of course the court needs to hear from the state and council for the media I suspect. um is we would like the court to um reconsider its order denying motion 305 and grant it for the balance of all of the proceedings in this matter. Uh or as an alternative, the court prohibit any further electronic media coverage of the preliminary hearing which includes September 1st. >> Thank you, Mr. Novak. >> Thank you very much. >> Turning to the state and then to the media. Yes, your honor. As to the remedy, um we've we've heard of instances where the the media has been able to delay uh publication of the recordings of the uh proceedings. Um we've heard of instances where that has been a short delay of like 30 seconds. Um, I've talked to the media attorney about this and they do not have the capability to do that right now. My suggestion would be for future proceedings to uh here order the media to look into that capability and uh that would be a remedy that perhaps could be used in the future. Um, I think that would be a satisfactory remedy to avoid this type of thing in the future. As to the other remedies requested, we have one witness, the final witness. Well, the defense has one witness. That witness is a ATF DNA um forensic biologist. Uh and I assume that the exhibits that will be admitted through her will be of that nature. Uh we've already in fact admitted um the report that she is going to be testifying to. uh the reports I should say that's Um and so I don't think we have and those have already been published. I don't think we have the same risks or uh yeah I'll just say risks with her testimony as we do with some of this other evidence that has already been admitted. In a proceeding like this, the parties and the court and the media are working together to learn and to refine their processes. I hear Mr. Novak's um remarks about um challenges that we've run into in the past. I recall, it hasn't been that long ago, um a time when the the camera was placed in a location in the courtroom that was calling causing challenges. court moved it. When there were challenges with um uh aspects of the court's ruling, the court reiterated those and those those processes improved. Um we are getting better at this. Media is on board and recognizes the court's obligation and its significant efforts to balance in the interests here in light of the court's ruling, including its recognition that the media operator in this case um beat almost all of us to the punch, right? and saw what was happening on the screen and moved away as quickly as as they could. Um we believe that the procedures that the court currently has in place even if they don't every mo moment of every hearing um deliver the the result that we are intending to deliver um those processes are working. Um I don't believe that a further adjustment um much less a sanction much less a revisitation of something that says let's keep every photographer every camera out of this courtroom for every proceeding in light of the court's well-reasoned and exhaustive rulings after long briefing on all of this. Um the court is currently balancing these interests correctly and we therefore ask the court to allow the parties to recognize that the time we're dedicating this morning represents a reiteration of the importance of these principles. the media and the parties all recognize them. We'll continue to endeavor at all times to do all that we can to ensure that those are uh adhered to and let the parties go forward under the current procedures without further um order or sanction by the court. Any further arguments before the court issues its ruling? >> No, but thank you for the opportunity. >> Thank you. And uh I'm just uh updating my notes as I uh I'm intending to issue this ruling right now. I'm just making sure that I'm capturing all the points made uh in the argument right now. I'm almost done. I appreciate the party's patience. I this uh this issue rises to the level that necessitates great care and as my practice I don't like to rush or make snap decisions and and I want to give this the full analysis that it's due. So thank you All right. Court will issue its ruling The constitutional rights of Mr. Robinson and Miss Kirk are paramount. Although transparency in judicial proceedings is a fundamental interest, it must be balanced against the constitutional rights of all parties. Having considered the arguments presented by council, and having reviewed the events that occurred yesterday, the court finds that its order prohibiting the publication or broadcast of exhibit 16 by the media camera was violated. The court agrees with the defense. This constituted a violation of the court's order. Compliance with courts orders court orders is essential in all proceedings and is of particular importance given the nature of these proceedings. With respect to defense's request as a sanction that the court reverse its ruling on defense motion 305 motion to exclude cameras. The request is respectfully denied. The analysis underlying the court's prior ruling remains unchanged and the court adheres to its reasoning and conclusions. With respects to the defense's alternative request as a sanction to prohit prohibit all cameras and electronic equipment from today's proceedings, thereby preventing the electronic capture of the proceedings for those inside and outside of the courtroom. The request is granted in part and denied in part. Effective immediately, members of the media shall no longer capture or broadcast any exhibits displayed by the parties during today's proceedings. The court finds this sanction to be proportional and appropriate in light of the violation of the court's prior order. The court reserves this sanction as it relates to September 1st. It is not before the court. There has not been a request for electronic media coverage and the court won't issue a pre-ruling when it becomes when that request has been filed and all the deadlines which the court has imposed in regards to the MC filing are in place. If motions are filed, the court will entertain motions in brief argument ahead of the September 1st hearing and address it at that time. This is the ruling of the court. Thank you. Turning to the defense, if you wish, you may call your next witness. Judge, >> we would like the benefit of the record before we start taking evidence today. >> Yes, Mr. Granander. And I'll and I'll allow all parties given the ruling of the court uh briefly. >> And I'll be brief, Judge. Um and this is in relation to the the continued taking of evidence today. Um, and I'll start my my my statement, judge, with something that was very insightful that you said the other day. Uh, you mentioned, and I quote, "Sometimes you need to take time to save time." Close quote. And so that's my my purpose for standing up here this morning. Um, we have spent the better part of a day, a little over five hours I believe, hearing from witnesses uh that the defense has called at this preliminary hearing. And no doubt the defense is entitled to call witnesses at a preliminary hearing as allow as allowed by the rules. But I think it's important that the court remind all parties uh the about the the purpose of this hearing. This is a probable cause hearing as your honor has repeatedly stated. Um the defense has invoked the uh the term reliability many times and the court frankly has found the evidence that's been admitted, the testimony um uh as a gatekeeper, the court has found it reliable. It's been presented, the exhibits have been found reliable. So any questions of additional reliability is are really questions of credibility of the witness and weighing of the evidence. And that is not uh really what this court engages in at the probable cause standard. Um and so this is all couched in the context of a likely forthcoming standing objection that the state may lodge. Uh if the testimony is long and drawn out and exceeds the scope of the preliminary hearing gets into areas of a 702 hearing uh possibly even trial, we will lodge this objection. But I wanted to just simply state the authority judge behind our objection. If we do make that, as your court is well aware, uh the magistrate at this stage of the case must view the evidence in the light most favorable to the prosecution. And that's cited to in a number of Utah cases to include State v. Schmidt. Schmidt continues, "This means that when reasonable inferences from the evidence cut both for and against the state's case, the magistrate lacks the discretion to choose between them and must leave such a determination to the factfinder at trial." Um, a few other cases I would like to refer the court to. Um, state v. Pledger, which is a Utah 1995 Supreme Court case. Uh, speaking of this standard, the court says the standard bars the magistrate from requiring the prosecution to address or even eliminate alternative inferences that could be drawn from the evidence in favor of the defense. So even assuming the defense scores points today in calling these witnesses again the court cannot really weigh those um in favor of the defense state v Hester which is a Utah court of appeals case 2000 where there is conflicting evidence quote the magistrate may not sift or weigh the evidence but must leave those task tasks to the factf finder at trial of course we're not at trial yet state virgin a Utah 2006 Supreme Court case indicates that a magistrate may only disregard evidence at a preliminary hearing if it is quote so contradictory, inconsistent or unbelievable that is in that it is unreasonable to base belief of an element of the prosecution's claim on that evidence. There's a state v draw case which is a Utah court of appeals case 2010. Magistrates may only disregard or discredit discredit evidence that is wholly lacking and incapable of creating a reasonable inference regarding a portion of the prosecution's claim, but must leave all the way of credible but conflicting evidence to the tri of fact. And finally, State v. Lopez, a Utah 2020 uh Supreme Court case. Speaking of this probable cause standard, at a preliminary hearing, the court said, "Under this low bar, it may be difficult for the defense to overcome a primmaaccia showing of probable cause. Even an alleged victim's recantations may sometimes be insufficient, given that the magistrate must view all evidence in the light most favorable to the prosecution and draw all reasonable inferences in favor of the prosecution." Close quote. Judge, your honor has your honor has heard four days of testimony now. Um the evidence is overwhelming. It's devastating and the question needs to be asked the purpose of continuing with testimony if it's long and drawn out. Of course, the defense has the right to call witnesses, but it needs to be within the context of this preliminary hearing. So again, we may be lodging an a standing objection of relevance and exceeding the scope of of this hearing. That's my record. >> Thank you, Mr. Grander. Do either party other parties wish to be heard as it relates to Mr. Grander's statement? I'm not sure what was being requested by Mr. Grunlander. Uh, as I indicated to the court during the testimony of the last witness, we had discussion with the state prior to the start. We had a scheduled date for the court to rule on objections. And the purpose of that hearing was so that we wouldn't have to fly witnesses out from the east coast if there was going to be a standing objection. Prior to that hearing taking place, the state contacted us after they had participated in interviews of Miss Oliver and the other experts and indicated to us and we indicated to the court that there was going to be no standing objection to the testimony of these witnesses. So, if he's lodging a standing objection now, I think he's waved it or he should be a stop from asserting it given the circumstances. I didn't hear that that he was asserting that and I intend to keep this uh next witness focused on the issue that I think is relevant which is the state presented DNA reports through a non-expert. They selectively read into the record a portion of those reports which left an extremely misleading impression of the significance of that evidence. So, I have the author of the report here and I'm going to uh hopefully educate the court on what the limitations are of the report and that's it. I hope to be done with the witness by noon uh direct and cross and uh and that will be the end of it. >> All right. Thank you, Mr. Burton. And before I uh have you call the witness, just want to make sure that the media had a Well, I'm not sure if the media needs to be heard on Mr. Gander's response. >> No, your honor. >> All right. Thank you. All right, Mr. Bert, you may call your next W. >> Miss Oliver, if you'd like to come >> You do so that the testimony you shall give in the case now pending before the court will be the truth, the whole truth, and nothing but the truth. So help you, God. All right, ma'am. You may And there's a water bottle to your left if you wish. And after you're seated, if you wouldn't mind adjusting that microphone, bringing it close to you to pick up your testimony from today. Mr. Bert, your witness. >> Thank you. Could you tell us your name, please? >> Caitlyn Oliver. O L I V E R. >> And Miss Oliver, could you bring that mic a little bit closer? So, I want to make sure your voice is projected. Thank you. What do you do for a living? >> I work for the Bureau of Alcohol, Tobacco, Firearms, and Explosives as a DNA section chief. >> And how long have you held that position? >> I've been a section chief since January. Uh, and I've worked with the ATF for about nine years. Prior to that, I was a forensic biologist. >> And where were you a forensic biologist before you started to work for the ATF? Prior to the ATF, I worked for Jefferson Parish Sheriff's Office in New Orleans, Louisiana as a DNA analyst and a DNA quality manager. >> Back in September of 2025, uh what were your duties and responsibilities? >> I was a forensic biologist. >> And uh do you recall that around September 11th, you received a request to do some DNA work uh at the request of the state of Utah? >> Yes. Um, could we display exhibit For instance, the next sample down 1.2 where the state read paragraph D admitted paragraph F. You state in F based on this calculation there is evidentiary support for the inclusion of Tyler Robinson. Correct. As a possible contributor. >> Correct. >> Mr. Bert, I just want to interrupt. Sure. There was I was made aware of a question about uh the media as it reflects this order. Um so the question was whether audio could be transmitted and and my ruling covered the the video display of any exhibits. And so I just want to make sure that's the understanding of all the parties that the audio of your portion discussing evidence is is uh that you understand that that's going to be captured by the camera and and and displayed but not any exhibits displayed. Is that your understanding? >> That is my understanding of the court's ruling. Yes. >> And to the state? >> Yes. >> And to the media? >> Yes. There might be concern about the actual Well, that's that's why I give my notation at the beginning of the morning that the parties are responsible to monitor their monitors and and that's that's there because they're entitled to view it, but they're responsible to ensure that the monitors as the camera is picking up the courtroom. It's directed not to focus on the monitors, but inevitable capture may occur and that's why that instruction is given. >> Your honor on behalf of you cannot court from where we were sitting. So I don't know if there's a way for us to view the monitor language. >> I I I don't understand what you're saying. >> It's not being published on this. >> It's not being published on the monitor, >> right? The the mon the order of the court based as a sanction is no exhibits will be displayed >> in the courtroom entirely >> in as it stands right now. Yes, that's correct. >> Your honor, it's just hard for the victim's family to be able to follow the evidence if everyone but the victim's family is able to view the exhibits here in court. >> The Thank you. I appreciate your concern. The this monitor is not on either. So, it's it's only the attorneys. The attorneys have a right to view what exhibits are being displayed, to make their motions, objections, and to see it. The it is the court's discretion on what's displayed in the courtroom for publication, and the court uh issued a sanction given the events of yesterday, and that's the court's ruling. Your honor, I just asked the court to consider the victim has the right to be present obviously at the hearing and the presence without being able to see the exhibits again is it's our position is is is not meaningful. >> Thank you. I appreciate your concerns. >> Mr. Burke, And again while he's doing that that same conclusion where you include the language use the term there is evidentiary support and possible contributor. I want to focus your attention on the words evidentiary support. We've had a prior witness testify that from the FBI testified that they use a scale and they characterize the support along the lines of strong. Are you familiar with that type of a scale? >> Yes. >> Does your agency employ that scale? >> We can come to five conclusions at our agency. So there can either be exclusion, limited support for exclusion, uh uninformative, uh limited support for inclusion, and support for inclusion. >> And I take it from what you just said, you don't use these qualifiers strongly. The word strongly include things of that nature. >> Yes, we don't use a verbal scale at our laboratory. Is is that a scientific phrase when when you talk about some instead of saying that there's support for an inclusion, you instead say there is strong support for the conclusion. >> So our laboratory doesn't use a verbal scale um due to the fact that they add subjective words to the front of this word support. Um it is our stance that the likelihood ratio statistic, the number stands on its own. So we report the likelihood ratio and um either support or support for inclusion or support for exclusion. >> Thank you. Um would you go to page eight of the report >> and highlight the very top of the uh first two sentences. You included this language in your report. Correct. >> Correct. Uh and in fact you included this language in all three of your reports referring to the conclusions conform with the relevant Department of Justice policy on uniform language. >> That's correct. >> Right. And why do you include that language in all three of your reports? >> It's standard language for our reports. Um our reports adhere to the DOJ um ultra statement. >> Okay. And could you go now to exhibit uh Oliver 4 for the witness only? Not admitted yet. Uh are you familiar with this document? The Department of Justice uniform language for testimony and reports for forensic autotosomal DNA examination using probabilistic genotyping systems. >> Yes, I am. >> Right. And would you go to page four of that document, please? And the court has heard some prior testimony about this Department of Justice directive. What is uh ATF's what is your understanding of what the qualifications and limitations are that are required by this policy of the Department of Justice? What are you supposed What are you not supposed to be saying in connection with the reports that you wrote in this case? >> Uh there's a few things that the ultra document states. Uh first it states if you use a verbal scale, which we do not, um then you need to use the one dictated in the in the document. Uh this is in an effort to unify the language coming out of DOJ laboratories. Um it also says that we cannot state that our evidence is um infallible. Um uh nor can we state that there is a um inconclusive >> shall not state that it's infallible or have a zero error rate. Correct. >> Correct. Uh it also states does it not that you shall not state assert that a likelihood ratio of any magnitude provides an absolute identification or source attribution of an individual to an evidentiary sample? >> Correct. >> And is your are your reports in conformity with that? You're not stating or implying that anything you did here is asserting an absolute identification of someone as the source of any of the evidence that you uh examine. Correct. >> Correct. With forensic evidence, it's impossible to state with 100% certainty anything. That's why we report a likelihood ratio to speak to that uncertainty with a statistic. >> All right. And would you go to the next This policy requires that you not state or use the expressions reasonable degree of scientific certainty, reasonable scientific certainty or similar assertions of reasonable certainty. You didn't do that in any of your reports. Correct. >> Correct. >> You're not asserting anything with respect to any reasonable degree of scientific certainty. >> Correct. >> Correct. Now when uh you could take that down. When did you first receive the assignment in this case? >> I would have to refer to my case record to know the exact date. >> Uh do you have those in front of you? >> I do not. >> Okay. Let me um pull up and go to the um Does that third page help refresh your memory on when you may have received this case? >> Yes, on September 12th, 2025. >> Okay. Uh is that when you first started doing work on the case, do you think? >> Yes, it is. Now, prior to doing work on the case, did you receive permission from someone to consume any samples in the case? >> Yes, I did. >> And could you go to page 15 of those case notes, please? Again, for the Do you recognize this email? >> Yes, I do. And can you tell me what the email is and what information it conveyed to you in connection with your examination? >> Yes. So, it's standard procedure at our laboratory that when we receive a case, we request permission to consume from the agent. Uh we request that they reach out to an attorney if one is assigned. Uh and in this case, we will not begin any work on the case until we've received that permission to consume. So this email is us receiving permission to consume the samples and move forward with testing. >> Now does your policy have does your lab have a policy for preserving samples for independent testing by the defense? >> Where possible? We will not consume samples um where it's possible. And and that policy uh is a long-standing one, not only in your lab, but pretty much everywhere in forensic DNA analysis, right? >> That's correct. >> Goes back to 1996, does it not? when the national uh NRC recommended a policy that samples be split wherever possible at the front end of the analysis to allow for independent examination >> where possible. Yes, that's correct. >> Right. And they did that because it was their conclusion, was it not? that a wrongfully accused person's best insurance against a possibility of being falsely incriminated is the opportunity to have the testing repeated. Such a such an opportunity should be provided whenever feasible. >> Correct. >> Okay. Uh could you now go back to Were certain uh DNA samples uh consumed >> in your analysis? >> Yes, they were. >> And for the record, are those listed on page eight of your report? >> Yes, they are. >> Which samples were entirely consumed in your analysis? >> It would be exhibits 1.4, 1.6, 6 1.9 1.12.1 3.1 4.1 and 5.1 >> Okay. And are there a number of samples listed above there in the report where you say the DNA extracts will be retained and then you list 1.1 1.2 1.3 1.5 1.7 1.8 8 1.13 7.1 and 8.1. >> Correct. >> Does that mean that the SW those are all swab samples? Correct. >> They were swabs. Yes. >> All right. Does that mean does your report mean that you consume the swabs but you have some liquid extract back uh remaining as to those samples? >> Correct. Now, are all of the samples uh let's talk about the samples in exhibit plus exhibit 30. Were all of the samples >> Could I refer to my tables in my report? And can we go to page three and four? uh with the exception of the known samples um from the known individual that was a single source sample but otherwise the evidence samples were all mixtures >> and in many cases they were mixtures of sometimes four and five people. Correct. >> Correct. Now when you look at mixtures such as the ones in this case uh you use terms like major and minor contributor right >> correct >> is that language meant to convey that anything with respect to activity of anybody who might be assigned to that DNA weight in other words are you saying the person you label as a major contributor was engaged in any sort of activity. Is there any connection between the use of that language and activity? >> None of the testing that I perform could speak to activity or what activity led to the deposition of the DNA. >> So nothing in your report if somebody reads that and says, "Oh, this one says uh this person is a major contributor." You're not commenting on anything about the person's activity. Correct. >> Correct. And is it true also that there are also several other limitations uh concerning the language of your report that it's important for courts and people who are reading the >> I'm sorry what what was the question? Are there other limitations uh in addition to the one we just reviewed that it's important to understand about >> Um in terms is there something specific that you're um >> Yeah, there is. Could you go to um Baker exhibit 30 page one for the Are you familiar with this uh publication? >> Yes. >> This is a publication by the National Institute of Standards and Technology called Forensic DNA Interpretation and Human Factors. >> Correct. This is uh put together as a guidance document for practitioners on what to simplify essentially what to say and what not to say. >> I don't know that I would call it a guidance document. NIST is not a regulatory body for DNA testing. Um it was a report that looked into forensic DNA um reporting and uh specific human factors that could affect our testing. Um so they may have had recommendations uh but as far as them being a regulatory body that's issuing guidelines, I I wouldn't state that. >> Okay, that's fine. Could you go to 136, please? 136. There we go. Right there. Wait. At 135. So, they're making recommendations here as to what how the report should be worded. Correct. Correct. U let me ask you whether you agree with some of these limitations or they call them caveats. Uh they talk about how you describe the number of contributors and they say the true number of contributors of DNA to an item can never be known. Do you agree with that? >> Yes. >> Okay. Um they also say let me ask one question before I ask this one which is do you use something called a reporting cap in all three of your reports? >> Yes. So for our likelihood ratio statistics we cap the statistic at one trillion. The actual number um could be a lot higher. It could be quintilian octillion. We chose a trillion because it has meaning I think to um to people that can understand what a trillion is. An octillion and a quintilion gets a little high at that point. So we cap at 1 trillion. And and they talk here, do they not about how you convey the idea of a reporting cap? And they say the report the LR reporting cap was chosen because of the limitation of biostistical modeling and independence assumptions of STR LOSA. Do you agree that that's why the the cap is chosen? >> I believe we chose our cap for the reason I stated. Do you disagree with that statement in terms of why the cap is chosen? >> I'm not familiar with that the paper that's referenced there. So, I would have to familiarize myself before I said I agreed or disagreed. >> Fair enough. Um and then they also suggest that you alert in your report that profile descriptors cannot be applied to You see do you agree with that? >> Yes. So this is what you were stating about uh calling a major contributor. It doesn't speak to the activity that led to the DNA deposition. >> Right. DNA profiles may be described as major minor. However, these descriptors should not be interpreted in the context of a decision regarding the nature or the mechanisms, actions or timing that led to the deposition of the DNA. You agree with that? >> Correct. Yes. >> Right. Um and then the other sort of limitation convey that the DNA results cannot be interpreted as the analyst providing an opinion regarding who the source of the >> Yes. So this is once again um we don't make source attribution statements. Uh we will say there's support for inclusion and then we back up that with a statistic. So, uh, from a scientific standpoint, you couldn't read the paragraph that sets out the likelihood ratio in your report, whatever the number, and then blast a headline in the media, Mr. Robinson's DNA is found on this item. That's a source attribution, is it not? >> Correct. Yes. >> And that would not be scientifically defensible, would it? >> Correct. >> Okay. Um, another limitation they talk about on likelihood ratios. On the next page, please 137. Likelihood ratios cannot speak to the likelihood of a proposition, only to the probability of the results given a pair of propositions. Do you agree with that? >> Yes. >> Explain that because that's a little above my pay grade in terms of understanding. So a likelihood ratio statistic compares the probability of the DNA profile of the evidence given two competing hypotheses or two competing scenarios. Typically the first is that the person of interest is included. Uh and then the exclusionary hypothesis would be that the person of interest interest is um excluded. So there's a random unknown unrelated individual contributing. And and when they're elaborating on that point, they say a ly like ratio indicates if and to what extent the DNA DNA analysts DNA analysis results support one proposition over another. It is not possible on this basis alone to determine which is the most probable proposition. Do you agree with that? >> Yes. >> Okay. Uh and then the next limitation they suggest you convey is that convey that DNA statistics cannot imply uniqueness within a population. Do you agree that that's a legitimate limitation? >> Yes. >> And explain what that means. Does it does that go back to the issue of source? You can't assign a source to a DNA sample. >> Correct. >> Okay. Uh, it says you should delineate the meaning of of a verbal qualifier, but you didn't use one in this case, right? >> Correct. >> Okay. Now, your testing cannot, and correct me if I'm wrong, I don't mischaracterize it. your your testing none of the testing in any of the three reports can answer the question of how and when DNA got deposited. Is that true? >> That is true. DNA can't speak to the activity that led to the deposition of the DNA. >> And the report says with regard to that issue, with the increased sensitivity of DNA techniques and sophisticated software, a DNA profile may be developed, even when the contributor of that DNA never touched the item or area that was swapped. Alternatively, a person's DNA may be present when they were not involved in the crime. Do you agree with that? >> Yes. Once again, I cannot speak to the activity. >> H how do can you explain how it's possible that a DNA profile may be developed even when the contributor of that DNA never touched the item or area that was swapped. So, it's possible if say the the pen that you're sitting there using for the week, you say hand it off to the judge then touches it for um a period of time and then I I swab it. It doesn't speak to who handled it last. I could test that. I could get both of your profiles. I wouldn't know which person was the last person to handle that item. >> All right. And and similarly, if you had a lot of DNA on your hand, we shook hands. I then went to pick up an exhibit a gun. I touched the trigger of it. Your DN your DNA could be on that trigger, right? >> It is possible. Yes. >> Okay. Even though you never touched the gun. >> Yes. And that's why because of those possibilities, you can't make any assessment of how or when DNA got deposited. Correct. >> Correct. >> How long can DNA persist on an item? >> DNA is quite stable over time. Um, it can be broken down uh due to environmental insults. So things like heat and humidity are known to break down DNA over time. Um, but I couldn't I couldn't give you an exact number. Um, were certain of the samples that you tested in this case degraded samples? >> There was degradation present in some of the samples. >> And what can cause degradation? >> Like I said, there's environmental >> Now, the the second report that you uh a Dremel item that was taken from Mr. Robinson's home, >> correct? >> And did request certain what are called elimination samples in regard to items that were recovered from his home? >> Yes. >> Tell the court what an elimination sample is as opposed to a sample that relates to a what's called a POI, person of interest. So, an elimination sample is um a a sample taken from a known individual that it may be assumed that they could have come into contact with it. If I were to say swab your vehicle, then I would want your DNA sample as an elimination to eliminate you in order to look for any additional DNA that may be there. And and you say they're they're assumed contributors because depending upon the location, for instance, somebody's house, you would expect if there were multiple people in that house that perhaps everybody in the house could contribute to a certain uh DNA result. >> It's possible. >> So, you'd want you'd want samples from all those folks to see if they contributed to an item that would be associated with a place where they congregated. Correct. >> And I noticed from your case file that you also requested, but I don't think you received elimination samples from agents who were involved in this case. >> Correct. >> Why do you request those samples? >> The type of testing we perform is quite sensitive. Um, and so it is a standard practice that we request elimination samples from any of the investigators involved in order to potentially eliminate them in case they um could have contaminated the evidence. Okay. Now, in report number 157, if you could uh bring that up, please. The elimination samples that you requested in connection with item C's from Mr. Robinson's apartment were from Amber Robinson. Matthew Robinson and Lance Twigs. Correct. >> Correct. >> And that's because you had information that those people were associated with a house. >> Correct. >> And when you tested or compared first of all, you determined their DNA types, right? >> Correct. >> Then you compared their types to what you found on the evidence. >> Correct. And for a certain number of those samples, DNA of your elimination samples, not because they were suspects, but because they were associated with the premises. Right. >> There was support for inclusion of some of these individuals. Yes. >> Okay. And if you could scroll down to page four, which is the table. I just want to review briefly with you. Um, for instance, item number 1.4, which was a swab from the rifle, you used the elimination sample of Mr. Robinson's father, and you found his DNA on that sw particular swap. Correct. >> I would say there was support for inclusion of Matthew Robinson on the sample obtained from the the swabs of the bolts of the rifle. >> I'm glad you pointed that out. That's again consistent with your other testimony. You're talking again about con support for inclusion as a possible contributor. >> Correct. And >> again, not not not because he's a suspect, but because he's associated with that premise. >> Correct. And there would have been a likelihood ratio statistic calculated and um to go along with that. Similarly with respect to 1.6 you found um again Matthew Robinson on swap number 1.6 or or a profile that indicated he was a possible contributor. >> There was support for inclusion of Matthew Robinson. >> Okay. Um and next page You you found support for inclusion of lance twigs on swabs of buttons of a Dremel tool. Correct. >> Correct. And going back to what we were talking about before, if a person named Lance Twigs lived in that residence, came into contact with Tyler Robinson, and then touched a button on a Dremel tool, you'd expect Mr. Robinson and Mr. Twigs's DNA to be on there, right? Or you could. It's reasonable to assume that anyone living in the household um could have contributed to DNA on an object found in that household. >> And similarly, you found profiles uh to suggest support for inclusion of Mr. Twigs on other areas of the Dremel tool. Correct. >> Correct. >> Okay. Now the last area um I want to ask you about is you're familiar with something called NGS. >> Yes. >> What is NGS? >> NGS stands for next generation sequencing. It's a DNA technique that uh sequences your DNA. So it looks at the individual sequence of your DNA. Is it true that in your field that uh whole area of NGS is something that's at the forefront of everybody's attention? For instance, when you go to seminars and you look at the presentation presentations, there's a lot of talk about NGS, right? >> That's correct. Yes. It's a newer technique. >> And is it being developed by ATF as a technique that's going to be used or has been used? >> Not at this time. No. And is there plans to do that? >> Not at this time. No. >> Okay. Uh do you know if other labs have implemented it? >> I believe there may be some laboratories in the United States that have it in use, but I I wouldn't have direct knowledge of that. >> Now, you used a program in this case called STR Mix. Correct. >> Correct. >> And that's sold by a company in New Zealand. That's software. >> Correct. Have they developed another program called STR mix NGS? >> Um, I'm not aware of NGS software. Are you aware that STR the developers are selling a product called STR mix NGS? >> I was not aware. No. >> Okay. Now, uh sequencing analysis is different than what you did in this case. Correct. >> Correct. >> And how so? As I said, sequencing is looking at the individual sequence, the individual bases that make up your DNA, as opposed to the testing that I'm performing, which is looking at uh length variations. Uh so STR testing, which is the testing I perform, looks at areas of the DNA that are known to be highly variable uh between individuals and the there areas where the sequ DNA sequence repeats itself over and over again. And depending on who you are as an individual, you may have a different number of repeats present at that location. So the testing we're performing is looking at those length variations. There's a distinction between say if you have 10 repeats versus 12 repeats, >> but you're not looking within those uh lengths to see what the sequence of the DNA is. >> Correct. >> And that's what this new technology is designed to look at. >> Correct. And the reason it's designed to look at that is because it's been found that there are um DNA areas that are different in sequence even though they're the same length. Is that true? >> I think the reason for developing NGS software is um to add another tool to a forensic biologist tool belt. >> Okay. Now, could you go to 154 please You're familiar with this chart? >> Yes. >> Okay. This lists all the alals that you found uh for all the testing in your in your three analysis. Correct. Yeah, this is one. What's the exhibit on this? >> This is 154. >> Okay, you're familiar with this chart, right? >> I've reviewed the first page of this chart. I I have not reviewed the entire >> Go to the first page. This lists the alals that you found correct >> for the known samples. Yes. >> Okay. Now go to the second page. And is it true that for the alals of interest in this case one one of the alals of interest is at the D3 location. AL 17. >> One of the locations that we look at on the DNA strand is um is called D3. That's a location. Yes. >> Right. And in this case, the 17 al is important because Mr. Robinson had a 17 al. Correct. >> Correct. >> And some of the evidence had a 17 al. >> Correct. >> At that location, >> correct? >> So, as I understand the way you do this, you look and compare whether those are the same number basically. >> Um, I wouldn't say that's how we do our comparison. So, it's not just number matching. We're um using STRMix um the StarMix software in order to perform uh an analysis of the software that that looks at the possibilities uh for a DNA profile and and make comparison to the known that way. We aren't uh using a chart and just doing number matching. >> Yeah. And I wasn't suggesting you did, but you're looking at the alals and measuring the peaks and it's a fairly sophisticated process. Correct. >> Correct. But the bottom line is you're comparing alals one against another. >> Correct? >> So if a person is a 1717 and the evidence sample is a 1717, you're looking at that comparison. >> Correct. >> And again measuring only length. >> Correct. But as true as it not that researchers have found at that particular alil, the D317 alil, that there are actually three different 17s, 17 A, 17B, 17 C. >> Yeah. So there's something known as iso alals. Um what that is is you may have in this case a 17 alil. Um but the sequence within that 17 alil is different. So uh two people may have a 17 but they may have a different sequence within their 17 alil >> and and it's been found that there is a 17A a 17B and a 17 C. Correct. >> Objection relevance the probable cause hearing at this point. I think we've once again gone beyond probable cause and uh based on Mr. Mr. Grunander's argument. I would uh invoke his argument here uh in the case law that he referenced and I object to this question. >> Let let me withdraw the question, reframe it and move beyond it. >> All right. So, I'll sustain the objection. It will be reframed and we'll go from there. >> It's true, is it not? that fi at least one two three five of the locations of interest in this case researchers have found that the alals that you were looking at these iso alals have different sequences but the same length >> objection relevance the witnesses testified she does not do sequencing analysis here and that's what the question is asking is about sequencing analysis >> councel uh the point though is that her testing cannot distinguish between these isoles and therefore it goes to the weight of the comparisons. >> But if she didn't do that, >> yeah, that's the point is that she didn't do it and therefore she's not in a position to draw conclusions. >> that profer is inaccurate uh that she's not able to draw conclusions because she did not do NGS or sequencing analysis. She has testified that she her lab and the analysis she did here is not sequencing analysis is something different. Whether or not she could do sequencing analysis is irrelevant to the analysis that she did do. If Mr. Bert wants to call an expert to say sequencing analysis is better or something like that, that's fine. But this expert does not do sequencing analysis. Therefore, the line of questioning that goes into sequencing analysis is irrelevant to her testimony. >> Let me see if I could lay a further foundation. >> All right. So, I'm going to sustain the objection and the question may be reassed if council chooses. Um, when you do your analysis using length only, do you go by the rule that if any STR locus fails to match when comparing the genotypes between two two or more samples, then the comparison of profiles between the question and reference sample is usually declared a non-match regardless of how many other No, it's not quite that simple. Um, an exclude what you're speaking of is an exclusion. Is that correct? >> Yeah. >> Right. >> Um, so it's possible for DNA evidence to we spoke about it's possible that DNA evidence be degraded. Um, in a case like that, there may be the potential that some of the profile has what we call dropped out. Uh, so it's not present. uh in that case we wouldn't expect necessarily to have a inclusion or exclusion at that location because there's no information present there. So it's not quite as simple as is every alil in this uh in this chart present in the evidence. There's there's more to it than that. >> If you had a difference in sequence between a known and a question across many lowi would you exclude the person? >> It depends. >> Again objection your honor. We're going back into sequencing which is not the analysis that was done in this case. >> Mr. B. >> Um again, your honor, if if there could be an exclusion based on this and the testing was not done, I think that that is relevant. >> But as it relates to this witness and her firsthand knowledge, I I'm not seeing that tie in >> um as it relates to her. >> Right. Let me move on then. >> So I'll sustain the objection. Now you said that uh all the samples you looked at uh in that one report were mixtures. Correct. >> Correct. >> And the number you get in the likelihood ratio uh depends on how many contributors you estimate, right? The number is going to vary. If you say it's I think it's a mixture of two people versus I think it mix it's a mixture of five people. It's not necessarily the number of contribute contributors. Um the likelihood ratio is speaks to the weight of the evidence. Um and so it's comparing known individuals to the unknown sample. Uh it could be a low number and be a single source sample. Um it could be a high number and be a four person mixture. Um it's it's not necessarily directly correlated with the number of contributors. Let me ask you if you agree with this. This is from the NIST mixture study. An likelihood ratio numeric value is not a measurement of a physical quantity. Do you agree with that? >> Correct. Rather, it is a ratio of probabilities in the opinion of the expert assessing the likelihood ratio and is dependent on the specific propositions used to formulate it and also on the individual making the assessment. >> Correct. Yes, I agree. And does does the final likelihood ratio depend on the number of contributors you uh assume? >> No, it does not. >> It has no effect whatsoever. >> It can have an effect. It's possible. Um it's possible multiple other factors could contribute to the likelihood ratio. >> Is it somehow uh difficult to figure out how many contributors there are in a sample? Uh I guess I I would say that I use my um my training, education, and experience in order to determine the number of contributors um present in a profile. >> I noticed throughout your report you use the phrase uh for instance with regard to one the 1.2 two sample the profile consistent with at least five at least five contributors at least one of which is male and for one one you say the profile is consistent with at least four contributors I I assume by the word at least you're signaling that it could be more >> correct >> and as the number of uh people to a mixture increases the difficult iculty in uh sorting out that mixture increase as well. Correct. >> Correct. >> Um I noticed in your standard operating procedure there's some guidance on interpreting threeperson mixtures. Familiar with that, right? >> Yes. And it says, and correct me if I'm wrong, approximately 70% of fourperson mixtures present as two or three person mixtures based solely on number of alals present. >> It's possible for them to present. Yes. >> Well, it doesn't say it's possible. says for example approximately in all cases assuming a mixture is a result of the combination of three people must be done with caution. For example, approximately 70% of four person mixtures present as two or three person mixtures based solely on number of alals present. >> You said you're referencing my SOP. >> Yes. >> Is it possible for me to take a look at it? >> Sure. I'm going to object at this point. Um the point that defense council is getting at is uh made in the last answer which is that the difficulty of sorting out mixtures increases as the number of contributors increases. That's all understood but that has nothing to do with the probable cause determination. Even if it's difficult the inferences and the evidence is weighed in the favor of the state. The court cannot weigh the difficulty in determining uh this evidence. Is it fair for a try or fact at a a jury? Sure it is. But we're now getting into into weight issues that are relevant for a jury, but not for this court. >> Well, he's implying this gonna be an extended discussion. I one u question which he wants to look at her manual to make sure it's in there. So, and then I'm done. >> All right. I'll allow this question. So, I'll rule the objection. She may review the material and so could you question Uh that's this is your SOP document. Correct. >> Correct. Did I read that correctly? >> Yes. >> And so it's true. Is it not that approximately 70% of four person mixtures present as two or three person mixtures? >> It's possible. >> Thank you. That's all I have. >> Thank you. We've been going for a bit. uh depending on how much cross trying to decide if a break is warranted or if uh Mr. McBride you wish your cross is limited. Again, not trying to say which way you should go. I'm just trying to weigh whether we should take a break. >> Um I will probably be Oh, excuse me. I will probably be 20 minutes. >> All right, let's just let's just keep going and then at that point we can uh Good morning. >> Morning. >> Is your lab accredited? >> Yes, it is. >> What does that mean? >> So, our laboratory goes through a voluntary accreditation process um where a external third party comes in and audits our laboratory to a set of standards. Specifically the ATF laboratory is accredited and specifically the DNA section of the um ATF laboratory is accredited to two sets of standards. One is an international set of standards called ISO7025 for testing laboratories and additionally a DNA specific set of standards uh put forth by the FBI. >> Does the accreditation require that the methodologies you use be validated? >> Yes. The methodologies used in this case have been accepted by courts across the country. Correct. >> Correct. >> Does the accreditation require that forensic biologists like yourself satisfy certain qualification standards? >> Yes, we're required to perform uh competency testing prior to participating in casework. And additionally, we participate in uh twice a year uh proficiency testing. >> And do you satisfy the competency and qualification standards required by accreditation? >> Yes. And at the time you did the testing in this case, did you satisfy those standards? >> Yes. where on the firearm did you find evidentiary support for the conclusion of Tyler Robinson? >> There were several locations. I'd have to refer to my report. >> Okay. Would you look at your report? And this is it looks like report number or exhibit number 30. If we can pull that We had it for a minute here. There it go. Okay. If we could go to uh page number Will you just list off the areas of that uh firearm where there was support for evidentiary support for inclusion of Tyler Robinson? The swabs of the stock and grips of rifle. The swabs of the butt plate of rifle. Swabs of the trigger and trigger guard of rifle with possible rich detail/smudging. The swabs of the bolt of the rifle with possible rich detail/smudging. And the swabs of the fore end of the rifle. >> We go to page Swabs of the barrel of the rifle with possible ridge details smudging. The swabs of possible rich details smudging >> the swabs of the protected underside of the receiver of the rifle after disassembly. The swabs of 136 cartridge case. the swabs of one 3006 cartridge and the swabs of one 3006 cartridge. I want to ask you about a couple of And calculation number three, exhibit 1.3. Do you know where that swab was taken from? >> I'd have to refer back to page two. >> Can we refer back to page two, please, Kimberly? Thank you. 1.3 is the swabs of the trigger and trigger guard of the rifle. All and we've had some talk uh some testimony from you and some questions for you about the likelihood ratios. the likelihood ratio that you analyzed in this question in calculation number three for this exhibit? The DNA profile was le at least one trillion times more likely if it originated from Tyler Robinson as the major component and three un unknown unrelated individuals than if it originated from four unrelated individuals. You say at least one trillion times more likely. So it could be a much higher number than one trillion. Is that accurate? >> It's possible. >> But the protocols in your laboratory say you cap that at at the number one trillion. Is that right? >> Correct. We would not report a number higher than 1 trillion. >> And it looks like you also did a probability um statistic as well in paragraph E. Is that right? >> Correct. It's another way of stating the likelihood ratio statistic. >> And will you state your findings uh you made here in paragraph E? And that's on The probability of an unrelated individual in the population who has not contributed DNA to the sample yielding this level of support is less than one And same question there the the trillion number it could be far less than that but you stop your calculations or the statistics at a trillion. Is that right? >> Correct. >> Let us move to page seven with regard to statistical analysis calculation number seven. Now, do you remember what 1.3 or 1.13 and 2.1 are? >> I'd have to refer back to page three, I believe. >> You could jump to page three. Thank you, Kimberly. >> Page four. I'm sorry. >> Page four. >> So, 1.13 is the swabs of the protected underside of the receiver of the rifle after disassembly and 2.1 is the swabs of one 3006 cartridge case. >> Now, did you do the swabs themselves? And 2.1 is a cartridge case. Is that right? >> Correct. >> And what's the difference between a cartridge case and a cartridge? >> A cartridge is unfired. Cartridge case has been fired. >> Right. Let's jump back to page seven. And what was your conclusion with regard to Well, first of all, why do you group these two together? Exhibits 1.13 and 2.1 in your conclusions here. >> They were both mixtures of two individuals um and they both yielded a likelihood ratio of the same magnitude. So they can be grouped together. >> Okay. It's not that they were tested together. >> Correct. >> It's just that the results were were of the same magnitude. So they were reported together. Is that right? >> Correct. >> All right. What was your conclusion as it relates to both of these as to the likelihood ratio? >> The DNA profiles are at least one trillion times more likely if they originated from Tyler Robinson as the major contributor and an unknown unrelated individual than if they originated from two unknown unrelated individuals. >> And did you make a conclusion here as well about the uh a probability statistic? >> Yes. So the probability of an unrelated individual in the population who has not contributed DNA to these samples yielding this level of support. So meaning yielding this uh likelihood Nothing else. Mr. V. The uh the 1.3 sample is described as swabs of trigger and trigger guard, right? >> Correct. >> You didn't do the swabs, but um am I correct that you have no way of knowing which part was from the trigger and which part was from the trigger guard? >> Correct. So, they were swabbed together. So I wouldn't be able to say um where the DNA came from. >> Um and that's one of the samples that was degraded. Correct. >> Uh there were signs of degradation present in that sample. Yes. >> And you said with regard to that sample that that was a sample consistent with at least four contributors. >> Correct. And did the what you term the major profile have the largest amount of degradation in that sample? >> There was Yes. >> Um, and you can't tell us anything about when the DNA was deposited on the trigger guard or the trigger. Correct. >> Correct. You can tell us anything about whether when you say it's at least four, it could be five, six, or seven people with DNA on that trigger or trigger guard. Correct. >> Correct. Which is why we have the major contributor that is suitable for comparison and the minor contributor is not suitable for comparison due to that complexity. >> And again, major minor just has to do with the levels of DNA you were seeing. has nothing to do with someone being engaged in activity that is major in relation to the minor contributor. >> Yes. So the major contributor is the um majority of the DNA contributed to that sample. >> Okay. And some of these samples you have major contributors of more than one person, right? >> Correct. So for sample 1.1 swabs of stock, you have two major profiles and there are at least four contributors on that sample, right? >> Can I refer to my report? >> Sure. It's uh exhibit 30, right? You said exhibit 1.1. >> Yes. >> Yes. It was a mixture of four individuals. There were two major contributors. And again with regard to all these samples, no way of knowing when or how the DNA got on those samples. Correct. Correct. >> You referenced another statistic in your report which is the statistic related to paragraph E I guess >> correct >> is it what's called a random match probability statistic or is that something else? >> It itself is not a random match probability statistic. um it is a way to represent the likelihood ratio um similar to a random match probability >> but it's still a likelihood ratio computation. Right. >> Correct. It's based off the likelihood ratio computation >> and it's still subject to all the limitations we've talked about. >> Correct. >> Can't attribute it to any person. Can't state it's infallible. Can't state there's a zero error rate. And you can't state that it is a source connected with any one person. Correct. >> Right. So part of not being able to state source attribution is um the reason we report the likelihood ratio statistic. It is speaks to the weight of the evidence. Um and so so yes, we can't do a source attribution and we report that statistic and address that uncertainty that way >> and address the uncertainty along with the other limitations we talked about. >> Correct. >> Thank you. That's all I have. >> Thank you. Anything further for this witness? >> No. >> All right. May this witness be excused? >> Yes. Yes. >> All right. Thank you, ma'am. Let me step >> No, we have no further. >> All right. Returning to prosecution, any anything further? >> No, judge. We have no rebuttal evidence to present at this hearing. Um, the state has no rebuttal evidence to present at this hearing. However, before we break, uh there is the uh matter that was discussed yesterday with respect to publishing in the courtroom exhibit 12.1 so that the victim's family can observe that. >> Thank you. All right. Uh do the parties wish to be heard as it relates to this uh briefly and then uh court will issue its ruling. And >> your honor, I actually just want to make a quick record. We have advised Mr. Robinson of his right to testify at this hearing and he is choosing to take our advice and not testify. >> Is that correct, Mr. Robinson? And I note that he's nodding in the affirmative. Thank you, Miss Visser. All right. In regards to the outstanding issue about the publication of states exhibit 12.1 uh to the courtroom only uh to persons here. any further input from any of the parties before the court issues this ruling >> Jeff on behalf of the victim. My understanding is you ruled yesterday that you were going to play it that you did grant our request. So I don't know if Um, >> judge, I might simply add, given the court's ruling this morning with respect to just to displaying exhibits, we want may want to make a record with the uh uh live streaming folks here that it's not going to be published. >> Thank you. >> All right. Nothing further from any of Okay. just um All right. And the court wishes to readress uh yesterday's ruling in light of this morning's uh sanction as it relates to exhibit 16. The court separately addressed that issue incident and imposed a sanction on the record. Having considered all applicable public access, fair trial, privacy, and victim's rights interests, the court adheres to its prior ruling. Court finds that temporarily limiting live stream to audio only while exhibit 12.1 is displayed is necessary to prevent the inadvertent publication of the exhibit from being transmitted to outside the courtroom. and no broader and and and is taking the uh least restrictive means to accomplish what is being requested. Accordingly, exhibit 12.1 may be viewed by all persons physically present in the courtroom, including victim representative Miss Kirk in her capacity as the victim representative. The same in court viewing rules applies to all parties in courtroom attendees that is the ruling of the court. Let's go ahead and proceed to that uh to the state. So I'll could the camera operator let me know when we're switched to an audio only. We are okay. All right. and as it's switched to audio only uh to the state now my understanding there's no audio on this uh surveillance on 12.1 is that correct all right all right so let's go ahead and play that and I'm going to rule that the um this also applies to the still photographer it cannot be captured the screen in any way I I noted video recording but I intend as well is no still capture of any of the monitors during the publication of 12.1. And uh to the state just let me know if you're ready. Let's go ahead and play it now. All right, and that concludes the playing of uh Stacy 12.1. Video uh transmission may resume. Just let me know when that is live. >> Does either party need the benefit of >> The state does not judge. >> No, your honor. >> All right. So, this preliminary hearing is continued to September 1st at 10:00 a.m. for an in-person hearing. The court will allocate up to four hours total for argument that's encompassing both parties. Does the defense request that Mr. Robinson be physically present for that hearing? >> Yes, your honor. >> All right, we'll make the recording. Thank you. The court appreciates the professionalism, civility, and respect shown by council, the parties, and all persons in attendance throughout these proceedings. As there are no matters uh no further matters before the court, this proceeding is adjourned until September 1st at 10 a.m. Good afternoon to you all.