Preliminary Hearing — Day 2 (July 7, 2026) (Part 1 of 2)

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Preliminary Hearing — Day 2 (July 7, 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=y6ofpz6ReuE) — verbatim ASR, not a certified court transcript.

calling case number 251 403576, state of Utah versus Tyler James Robinson. Council, please enter your appearances. >> Chad Grimmander, Ryan McBride, David Sturgil, Lauren Hunt for the state, Jeff the county attorney as well as Chris are also present. >> Good morning. >> Good morning, your honor. Good morning, your honor. >> Good morning, your honor. >> All right. >> Kathy Netor, Michael Bert, Richard Novak, Stacy Visser here for Mr. Robinson, who's seated to my right. >> Good morning, council. Good morning, Mr. Robinson. And for the record, uh, the court also recognizes the presence of victim representative Miss Erica Kirk. Good morning. First, with respect to courtroom protocol to maintain security and decorum, any individual who exits the courtroom during proceedings will not be permitted to re-enter until recess. All council are expected to take reasonable measures to safeguard confidential communication. Such measures may include the use of screen screen protections on electronic. >> All right. Is it the audio working? >> Audio is not working. >> All right. Let's just take a brief moment and just let me know when it appears to While we're waiting, uh, if you have any water bottles or such, feel free to drink them. It is a little bit warm in here today, so I will be drinking from my water, so don't don't hesitate to use >> [clears throat] [snorts] Can you send them a link to the the where where this is being streamed so they have something to look at? >> I see. All right. All right. [clears throat] Let's go ahead and continue and let me repeat it just because it uh the audio may have cut out. All council are expected to take reasonable measures to safeguard confidential communication. Such measures may include the use of screen protections on electronic devices and care to avoid the inadvertent capture of privileged or private discussions by recording equipment or by those present in the courtroom. Second, the court will address the camera operator and still photographer All right. Today's uh the purpose of this is to ensure clarity regarding the expectations governing today's proceedings. Could you both state your name for the record? >> Yes. Trent Nelson with the Salt Lake Tribune as the pool steel photographer. >> John Wilson from KSL Television video photographer. >> Good morning to you both. Have you reviewed the court standing decorum order? Yes, your honor. >> Yes. >> Do you understand the requirements set forth in that order as they apply to your activities today? >> Yes. >> Do you require additional time to review the order or to adjust equipment to ensure compliance? >> No. >> Okay. Do you anticipate any difficulty complying with the order or today or with the court's instructions? >> No. >> All right. Well, thank you. I appreciate As 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 obligation to protect and uphold the constitutional rights of both 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. The court also expects every person in attendance will be treated with a dignity and respect to which they are entitled. Consistent with the court standing to quorum order, all spectators shall remain quiet, civil, and orderly during 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 other visible reactions during today's hearing. Spectators shall also not wear or display pins, buttons, signs, clothing, photo uh photo photographs, or other items expressing support for or opposing 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, orderly, and faithful to the rights and dignity of every person involved. Turning now to council. Before we begin, I wish to acknowledge the professionalism, civility, and competence demonstrated by council for both the defense and prosecution during yesterday's proceedings. It is evident to the court that each of you approach this matter with seriousness. preparation and a deep commitment to your respected responsibilities. The court appreciates the care which you have taken in advocating for your positions and the respectful manner in which you have done so. Thank you. Do either party require the benefit of the record before we proceed? >> The state does. Your honor, Mr. McBride will address the court. >> All right. And just as a reminder, the microphones at council table are turned off to prevent the inadvertent capture of any communication. So, if you would like to come forward, uh, thank you. And turning to Mr. McBride. >> Thank you, your honor. >> Uh, before this hearing, the defense moved to over to, uh, find article 1, section 12 of the Utah Constitution, rule 7B, and rule 1102 unconstitutional as it relates to the admissibility of hearsay and reliable hearsay. At this hearing, the issue was extensively briefed and argued. The court [clears throat] denied the defense motion to exclude the use of reliable hearsay at the preliminary hearing. That ruling is at docket number 631. In addition, defense council filed a standing objection on July 3rd. That's docket 678. The standing objection reasserted the arguments made in in defendant's previous motion. Uh defendant continues to make these same objections throughout the testimony of each witness. I believe both the the state and the court and everyone present knows that the defense objects to the use of hearsay or reliable hearsay at this hearing. Um on the point of preserving the objection that has been done. Defense council has filed their motion. They filed their standing objection. Throughout the proceeding they have continued to make objections. At this point further objection is unnecessary to preserve the record and causes undue and unnecessary delay. This is needless delay and we'd ask um the court to acknowledge and the record to reflect the standing objection. And we also ask the court to give an instruction that continuing objections on this ground are unnecessary. Of course, if it relates to some other ground or is some some item that's particular to a particular statement, that objection may be appropriate. But at this point, we feel that the repeated uh objections that have been made and already been ruled upon or unnecessary and cause undue delay. >> Good morning, your honor. Michael Bird from Mr. Robinson. Uh we have no objection to that procedure as long as the court makes a ruling that the objections are preserved. We do think it would uh expedite matters if we didn't have to repeat the standing objection. Uh there may be particular objections that are not covered by the standing uh objection we've made. And so we'd ask permission to be allowed to make those objections as needed. >> Thank you, Mr. Bird. Thank you to both sides. I appreciate uh the presentation and and your argument about this. The court takes no position in regards to whether the objection is made again and again or not. Uh I leave that to the parties. I I recognize the need to expedite this and if both sides stipulate. I I will adopt the request that the standing objection as it relates to 1102 article 1 section 12 of the Utah Constitution and all uh relevant uh authorities that have been cited have been noted and the standing objection by defense is in place. However, if defense feels the need to do that in order to protect the constitutional rights of Mr. Robinson, the court will not prevent that nor stand in its way. This court is not uh is is acting in the role of a magistrate and will allow the parties to move forward as as necessary. But as noted, I will make that uh note that the standing objection has been noted for all of the uh yesterday's proceedings and will be in place throughout the the rest of uh the preliminary hearing. Anything further or any uh need for the record given the court's uh statement? >> Not from the state. >> No, your honor. >> All right. Thank you. All right. The court acknowledges that the exclusionary rule is in effect at this time. Any witness who is subject to exclus exclusion should be excused from the courtroom and again I will leave it to the parties uh to monitor the courtroom to ensure that if a witness has come in and they shouldn't be that uh they are redirected. I invite agent hold to return to the stand uh to resume direct examination and agent hold you are still under oath. >> Mr. Sturggil. >> Thank you, Judge. >> And before we begin, uh, is there a way to dim these lights just a tad like we Perfect. Thank you. All right. As uh as of yesterday, there is also a water bottle to your left. And if you wouldn't mind just making sure that microphone is directly in front of you. We want to make sure that the record picks up uh your testimony today. Mr. Sturgil, your witness. >> Thank you, Judge. Uh Agent Hull, uh we're going to return to uh what has been Mark Stakes exhibit 12.1. There was reference to it yesterday. Uh and I' I'd like to ask you again, uh have you reviewed that exhibit? >> Yes. And if you wouldn't mind just briefly remind us what that uh exhibit consists of. >> Okay, >> your honor. Excuse me. We can't hear the >> and that's that's what I hear. So, let's go ahead and stop. I I'm not hearing it. So, let's I'm going to have you repeat. Let's test it. Go ahead. >> Check. >> All right. I believe that. Okay. >> Mr. Mr. Sturgil, if you wouldn't mind restarting. >> I can do that, Judge. Thank you. >> Maybe bring a mic from the base a little bit closer to you. >> If that'll help. >> All right, let's go ahead and go back to uh what's been marked as states exhibit 12.1. Uh I'd asked you uh a moment ago if you'd reviewed that exhibit. >> Yes, I have. >> Okay. And uh would you just remind us uh what that exhibit consists of? It's a compilation of videos that were part of the overall footage that was obtained from the Utah Valley University as part of the investigation. >> And does that compilation video uh uh from your point of view capture Mr. Robinson arriving to and visiting the UVU campus? >> It does. Yes. >> On September 10 on September 10th through the 11th, 2025. >> Correct. >> Okay. And and again, I asked you this question yesterday, but did you prepare that video compilation? >> I did not. >> Okay. Do you know who did? >> Uh the Utah County Attorney's Office. >> Yeah. Does uh does that video and and I'm referring to 12.1 exhibit uh states exhibit 12.1 uh does it uh include all of the footage collected by the SBI from UVU? >> Uh it does not. No. >> Does that video again 12.1 include all of the footage you collected from UVU that captures who you believe is Mr. Robinson walking around campus? Not all of the footage. No. >> You reviewed this compilation with Mr. Olsen, correct? >> Correct. >> And in its entirety? >> Yes. >> And uh he actually And then you collected an 11:02 statement from him? >> I did. Yes. >> And and I believe that has actually been admitted into evidence as states exhibit 12.3. Uh did did Mr. Olsen uh refer to that exhibit 12.1 in his statement. >> He did. Yes. >> Okay. 12.3. I'm going to put on your monitor states exhibit 12.3. And I'd ask that you scroll down towards the very bottom. And I I would ask that you read from the statement specifically what Mr. Olsen said about states exhibit 12.1. And and I I want to narrow your focus. So, I'm going to draw your attention. Uh, about threequarters down the page, there's a sentence that begins on the left margin. I have reviewed. Do you see that? >> I do. Yes. >> Okay. Would you please read that sentence? >> I have reviewed states exhibit 12.1, and the recordings are true and accurate, including timestamps, dates, and camera labels. The only changes are some zooms and red highlights, which were not part of the original recording. >> Yeah. >> Which you I'm sorry. >> Sorry. I didn't know if you wanted me to continue or >> No, that's that's good enough. Have you uh have you had a chance um well, you you review the raw footage yourself? Is that correct? >> Correct. >> And and does does that uh comport with with your uh viewpoint of that exhibit? >> It does. Yes. >> Have you had a chance to refer or I'm sorry, review what's been marked as stakes exhibit 12.4? >> Uh yes. >> Okay. And when did you review that exhibit? >> Uh this morning. >> And who did you review that exhibit with? >> Uh with Kimberly DFL. >> Okay. >> Was there any conversation about that exhibit? >> Uh no, I was just shown the video. >> Okay. Nobody asked you questions or suggested anything to you? >> The um Did did you prepare that exhibit? >> I did not. >> Do you know who did? uh the Utah County Attorney's Office. >> All right. And and I'm referring specifically to what's been marked stakes exhibit 12.4. Uh what what is depicted in that video? >> Uh that video is again a compilation of uh videos from the overall footage that was obtained from Utah Valley University for September 11th and September 12th. >> And and how does it compare to what's been marked as states exhibit 12.1? >> Uh it appears to be the same footage. Um, however, on this particular version, there were no um circles or blurs that had been made to the video. >> How about zooming in and zooming out? >> Uh, no, there was no zooming or zooming out. >> Does it uh appear um to be identical to to the raw footage that you've seen that portrays this particular part of the UVU surveillance video? >> It does. Yes. Judge, the state uh would move to admit And >> your honor, we just object to the publication of this for all the reasons we argued yesterday. We think this uh video is um going to play a big role in the trial and to allow the public to see it now would uh seriously impact our ability to get a fair trial. We're asking the court not to publish it. >> Thank you. And Mr. Serge and to all council um as it will apply to all council when you are moving a piece of evidence uh it's it's the three parts whether admissibility into the record >> to be published in the courtroom to be published in the courtroom and captured by the media. So Mr. Sturgil as it's your request what what are you requesting? Judge, first of all, I clearly moved to admit the exhibit. I'd ask and judge, the presumption is that this is is a is a public record and should be published. And so our our the state's position is is that it should be published here in the courtroom and it should be published in such a way that that the media can can capture it on video. >> All right. Your honor, can I be heard on that very briefly? >> You may if you would approach the elector, please, and state your name. >> I'm David Ryman. I represent the news media. I didn't make an appearance because the news media technically aren't parties, but as you know, they do have the right to be heard on issues like this, and I've tried to keep that to a minimum, but since this is the first one coming up today, I thought it might be helpful to just address it again. Um there is a presumption not just that it be published in the courtroom as we talked about yesterday because the participants or the the spectators in the courtroom um have a right to know what the court is viewing so that they can understand how you're making your decision. This seems like a very important piece of evidence. It doesn't seem like there is a a basis to keep the people who are in the courtroom today from understanding why um it's being introduced. It is not like the videos yesterday. And my understanding at least is and you can correct me if I'm wrong, but we didn't object to the videos that weren't published yesterday that were graphic. We didn't object to the non-publication of the autopsy report. this the argument here that Miss Netor just made is this seems really relevant and that is precisely why it needs to be public with the last thing I'll I'll address is just EMC. Um this there is a presumption that's a rule presumption not a constitutional one that EMC is allowed. Um and I think that for all of the reasons that we've we've briefed this for your honor several different ways there needs to be a really good reason why. um you know if it's being published in a public proceeding in the courtroom it should not also be um and it should not also be allowed to be um published to the media. So >> thank you. >> Thank you. >> Mr. Sturgil, did you wish to respond or perhaps uh give a little bit more detail on what this video purports to show? Right. >> Well, um, do you want me to profer that, judge, or have the witness? >> I'll defer to you. >> Okay. Um, well, first of all, if I could take one step back. Uh, let me ask you, um, I may have misheard, but let's just be clear about this video, the compilation video. It includes video surveillance from UVU campus from what dates? >> Uh, September 10th, 2025 into the morning of the 11th, 2025. And uh if you wouldn't mind uh just describe in a bit more detail uh what this compilation includes. >> Uh the compilation uh shows the movements of what you're believed to be Mr. Robinson on Utah Valley University campus. Uh arriving and leaving in a vehicle, arriving and leaving on foot and then returning and leaving and then attempting to gain access again in a vehicle. and uh his movements throughout the day uh are included in the videos also. of the of the alleged shooting? >> There is not judge. >> Okay. I just want to clarify that, Miss Nester, given that additional information and anything further from defense. Your >> honor, Mr. Mr. Bert's going to he's the one who's been litigating all of the First Amendment issues. If he could address Mr. Ryman's argument. >> Yes, Mr. Bert, if you wouldn't mind Judge, I wanted to clarify one argument uh that was made by council for the media yesterday and that was the rules uh the rule 4-202.02 does not apply to the situation we're in right now and that is wrong. Uh the rule says that this rule applies to the judicial branch and uh 4-202.02J O2J says the judge may regulate or deny access to exhibits to ensure a fair trial. So I think that rule uh does apply to our situation and the Supreme Court in the Algier ALG case 258 Pacific 3 589 applied the rule in the context of an evidentary exhibit. And I know the court has not mentioned since council made that argument this particular rule, but I think it does apply here. And also applicable is the Supreme Court's decision in the Karns case, which we talked about when we argued the motion for denying access to the cameras. And that case uh Karns versus Tribune Corporation 685 Pacific 2 515 says that the standard the court ought to apply in determining whether an exhibit at a preliminary hearing should be sealed is one of a quote realistic likelihood of prejudice. And we we rely on the evidentiary showing we've made in connection with our motion to exclude cameras that there is a realistic likelihood of pre prejudice in this way. The court knows and has access to the media coverage uh up to the time when we litigated the motion concerning uh closing this hearing to the cameras. And the court knows that one feature of the media coverage has been a very prosecution bias of every story that is that has been published on this account. The court also knows from that coverage that that uh information is being widely disseminated and you have found in connection with the shackling issue that the publicity in this case is likely to reach jurors uh who will be part of our jury pool. And we've also submitted to the court a public opinion survey which shows that the me the prejuditial uh publicity that the media has already generated in this case has affected the jury pool. And so those are all factors the court can point to and rely on and conclude that publication of this particular exhibit u should not be allowed because there is a realistic likelihood of prejudice to Mr. Robinson's right to a fair trial. So under that standard and under the rule, the court ought to deny publication. >> Thank you, Mr. Birds. >> Thank you. >> Any final argument from the parties before the court issues its ruling? >> Your honor, can I be heard on that briefly? >> Thank you, your honor. David Ryman, I um I just wanted to clarify. I think I don't know that Mr. Burton, I necessarily disagree about what he said about the rule. What we were talking about yesterday was something different. That is the portion of the rule that classifies um records that are in the court file. You know, it's not the same as what happens in a public hearing. And Mr. Bert referenced the portion of the rule that essentially just tracks the constitutional standard which of course you know controls here as to whether um in this public proceeding it can be closed in any way and non-publication of of exhibits as a form of closure. So I don't necessarily disagree. I would just underscore a lot of what Mr. Burch has said has been briefed at Nauseium at this point. Um their position that publicity is incompatible with um with a fair trial. the Algy case he mentioned, you know, it's I know that case. I litigated that case. It involved a confession that the court found public because you have so many other tools to seat a fair and impartial jury. And we have cited that case repeatedly and so has your honor, I think, recognized it in your ruling saying pre-trial publicity can coexist with um the defendant's right to a fair trial. So, the last thing I'll say is just that the constitutional standard that I think we're all agreeing applies here is is weighty and difficult to overcome. And [snorts] it is never satisfied, as we've explained, by just generalized assertions that there's a lot of publicity out there. It's got to be something really specific and they just haven't made that showing. And I certainly don't think that a video that apparently just shows the defendant walking around the UVU campus qualifies. >> Thank you. Anything further, >> judge from the state? No. But I I think I'd like to be crystal clear. You asked if there's any portion of this video that captures and I believe you asked of of the actual shooting. Um it there's no video of that. There is video, however, and you've heard testimony related to this, where uh the the shooter goes to the top of the LOC building, goes out to the edge of the building, low crawls, and then leaves after what we assume is the shot being fired. That's as close as it gets. I don't know if that makes a difference, judge. I just wanted to make the record clear, and I want to be crystal clear with your honor. >> Thank you. I appreciate that uh clarification as it is guiding for this court. making its ruling. I turn to I go down to well uh one presumption of public court records court records are public unless otherwise classified that by this rule two public court records public court records include but are not limited to and I'm going to go down to 2J exhibits but the judge may regulate or deny access to ensure the integrity of the exhibit, a fair trial, or interests favoring closure. And the court recognizes the importance of the constitutional rights of Mr. Robinson being upheld and protected. At the same time, the court also recognizes the importance of transparency and a proper balance to ensure that the constitutional rights of all parties are upheld. as it relates to this exhibit. Uh I believe it's 12.4. >> 12.4. Yes. >> Uh based off the representation of what is in that uh the court differentiates this exhibit from the exhibits from yesterday, namely exhibit uh 7, exhibit 8 and exhibit nine. uh as those are different in nature and those uh go to uh issues relating to Utah Constitution Article 1 section 28 as it relates to the declaration of rights of crime victims and the court also recognizes Utah rule of evidence 1102 as it that is the foundation that's being laid uh for the admission of this exhibit having taken in consider eration all factors. The court rules that exhibit 12.4 is admitted into evidence and shall be played in the courtroom and may be broadcast by the media and we can proceed. Thank you, Judge. Agent Hull, before we actually watch uh states exhibit 12.4, I have just a few questions. Uh yesterday you testified at the very beginning of your investigation that you focused on the video that captured the shooter on the top of the Losi building. Is that correct? >> Yes. >> I believe you also testified that you began by working your way and and this is what I remember you saying, so correct me if I'm wrong, but you in essence testified that you began with that video and you started working your way backward and forward with the UVU surveillance video in an effort to trace the shooter steps on campus. Is that right? >> Correct. Okay. Would you mind explaining just in a little bit more detail what you meant by that tracking forward and backward on that video? >> Yeah, we had a we had a known um when the shooting occurred and and as the officer testified, there was a video of an individual on the roof at the time of the shooting. And so the philosophy that we applied was to take what we knew and then work that forward through the timeline and backwards through the timeline to try and establish um where the individual had gone from the rooftop or how the individual had come to be on the rooftop. >> And and did that, for lack of a better term, did that bear fruit? It did. Did you actually see from at least in part where he came from and where that shooter went? >> Yes. More so where he came from. It was very limited after the fact. >> Okay. You you testified yesterday that uh uh in reference I believe to what's Mark Stakes exhibit 21 um that you believe Mr. Robinson visited campus at least four times on the 10th and the 11th. >> Correct. >> And I think you re reaffirm that today. Did you do the did you do the same attempt that is to track Mr. Robinson through UVU surveillance video during each of those four visits? >> Yes. >> Or those other three visits, I guess. >> Yes. On each occasion, we attempted to follow the movements of of the individual throughout campus. >> And did you did you in fact see Mr. Robinson on campus in surveillance video that is not included in states exhibit 12.4? >> Uh, yes. There is additional footage of him on campus. Yes. Okay. I'm going to have displayed on your monitor. What you're going to see is is a a paused or a still image. And I'm going to ask if you recognize uh what you see that now, agent hall. >> I do. Yes. >> Okay. Do do you recognize what's displayed on your monitor? >> Yes. It's footage from uh the university that was provided to us, particularly of the parking structure. Okay. Does it appear to be states exhibit 12.4? >> It does. Yes. >> So, I'm going to go ahead and uh I'm going to have this video run and then if you don't mind, as it's running, I'm probably going to be asking you some questions and so uh this video has no audio. Is that right? >> Uh no, there's no audio on the cameras. >> Okay. Um let's go ahead and start the video. Your >> honor, it's just not up on the screen yet. Maybe >> let's go ahead and put it on all screens. No, I appreciate >> published. So, >> it is uh so it is admitted and uh may be published to the screens and uh just want to make sure it's on your screen agent. All right. All right. Uh Mr. Sturgil, I'll you may proceed. >> Appreciate that, Judge. Thank you. Go ahead. >> Okay. What are we seeing here, Agent Hall? >> Uh that's a vehicle that's believed to belong to Mr. Romans arriving in the parking garage on campus >> at what time in the morning? Is what well what time of the day? >> Uh it's approximately 8:30 in the morning on September 10th, 2025. >> And and what leads you to believe that this particular vehicle belongs to Mr. Robinson? >> Uh information uh that was provided um regards to driver's license and department of motor vehicle records. The vehicle fits the description of a vehicle owned by Mr. Robinson. Is is there anything unique about that vehicle that stands out to you? >> Uh the the shape of the vehicle is is very distinct, but predominantly the wheels were very distinctive on this uh version of the vehicle. >> Now, what do we see? >> Uh the driver of the vehicle exits the vehicle and then uh walks on foot to exit the parking garage. It's the individual in the the red t-shirt and the shorts and shoes. And do you believe you recognize who that person is? >> Yes. >> Who is that? I >> believe that's Tyler Robinson. >> Right. Where does he go from there? >> Uh he heads out of the parking garage on foot uh into the campus um and actually goes to the quad area of the campus. At that time he makes contact with uh some representatives from TPUSA. >> By quad area, >> sorry, the the amphitheater is is what I've previously referred it to. >> All right. So he goes up on campus, visits the the the amphitheater area, the courtyard or quad. >> Correct. >> Um and and then what do we see here now? >> He returns on foot back to the same vehicle. >> And what time is he returning back to the vehicle? And where is this parking structure located on campus? >> Uh it's it's just off of campus drive. Um it's a short walk from the from the amphitheater. >> What do we see now? Uh >> that's the vehicle exiting with Mr. Now, what do we see? >> This is Mr. Robinson returning to the campus on foot from um the neighborhood to the northeast. You can see he's wearing the same clothing as in the previous video and he's carrying a blue backpack. >> Describe the clothing. Uh, it's a maroon color t-shirt uh with uh gray or olive >> And what time did he return to campus? >> Uh, just after 10:00 a.m. >> And does he leave the parking structure eventually? >> Uh, he does. Yes. >> And during this visit, do you know where he goes after [snorts] he leaves the the parking structure? >> Yes, we we're able to track his movements on campus. He went to Chick-fil-A um in the Sorenson building. >> Mhm. >> And purchased some food, sat and ate the food. Then >> I'm sorry. >> Where did he purchase the food from? >> Chick-fil-A in the Sorenson Center. >> And And where is that in relation to the the amphitheater or the the courtyard? >> Uh it's it's kind of on the northeast side of the amphitheater. It would be um on the on the upper back edge of the amphitheater, furthest away from where the tent was that Mr. Ko was in. >> And from there, where does he go? >> Uh from there, he moves across campus uh out across campus drive uh into a wooded area on what would be kind of the northeast side of Campus Drive. Um then returns back onto campus. Um, we noticed at this point that he's no longer carrying the backpack that he was originally wearing. Uh, he moves through the Gunther building and the computer science building >> and then >> I'm sorry. >> And then goes where? >> Then goes across the to the the railing that gives access to the roof of the Loy building. From there >> uh from there he comes uh back down the stairs and uh walks off campus from that point >> and and about what time was that that he left campus that that second time? Do you know? >> Uh I believe it was approximately 11:00 a.m. or just after if I recall. I could verify from my notes if you need an exact time. >> Uh yeah, if you don't mind [snorts] that'll help you remember. Refer to it. Don't read it out loud. Let me know when you've had a chance to >> Were you able to uh refresh your memory as far as the time? >> I was. Yes. >> And what what time was it? It was just prior to 11:00 a.m. when he walked off campus. >> Okay. And before we go any further, the the parking structure that that he left initially, where is that parking structure in relation to the LDS Institute building? >> I'm sorry, in relation to >> Um I think it would be just to the north of the LDS Institute building if I recall. >> Do you recall whether it was adjacent to the LDS Institute? >> Yes, it is. >> Okay. All right. Um, what what do we what do we see displayed here now? Go ahead. >> Uh, this is a video of Mr. Robinson returning back to campus the same way that he did previously on foot. And why? Uh, well, let me ask you this. You believe this is Mr. Robinson returning to campus? >> I do. Yes. >> Okay. And and why do you believe it's Mr. Robinson. >> Uh, the shoes are the same and um the images that we have are from from my viewing and and seeing Mr. Robinson on the video, it's the same person. >> Uh, he's noticeably wearing different clothing. >> He is wearing different clothing and he also is walking with a gate or a limp in this video. >> With a gate or what? A Now, what do we see? This is Mr. Robinson coming up the stairs of the again. And he seems to be having issues walking. >> And again, were we able to track So, were we able to track Mr. Robinson uh when he leaves this parking structure? >> Yes, we were able to. >> Okay. So, when he leaves the parking structure, where where does he go? >> Uh, he he comes up around Campus Drive, as you can see on the video here, there is a there's a cut through there north of the Losi building, and that's Mr. Robinson coming up the sidewalk. Uh, he has the noticeable gate or limp in his walk. Um, and then he moves south across the front of the Losi building >> on the sidewalk. He would be the rear of the two individuals in this particular video. >> So, so right now if we were to break this picture into quadrants, where where would he where would he be? >> I would be in the top left quadrant walking to the left of the image >> now. Now, what do we see? >> Uh, this is an image looking across the parking lot to the Losi building and Mr. Robinson is appearing on the exterior staircase which gives access to the lossy building roof and and the area where the railing was. >> And again, let's break that image into into quadrants. Where where would he be located if you broke it into quadrants? >> It's in the top right. And uh the individual can be seen moving under the notations that are on the video. Okay. [clears throat] And and what time is this? Uh >> it's just afternoon about 12:15. >> On what day? >> On December, sorry, December September 10th, 2025. Okay. >> What what just happened or what did we just see happen? >> The individual actually kind of rolls over the railing onto the roof of the Losi building. And again in the top left corner, the individual is now seen running across the rooftop of the Losi building to what would be the southwest corner of the building. >> Mhm. >> Uh crouching down and then crawling to >> And and this is at what time? >> Um around 12:23. I think the time stamp on the video is 12:22. on the 10th >> on September 10th. Yes. 2024. >> So we're clear. This is the roof of the Losi building. >> Correct. >> Can you still see that individual? You believe this to be Mr. Robinson? >> I'm sorry. >> You believe this to be Mr. Robinson? >> I do. Yes. >> And how long is he out there on the edge of the building? >> Um, just until the the reported shot was fired at at 1223 and 28. Individual then stands up and then moves across the building to the north. >> Is that what we're seeing happening right now? >> It is. Yes. They move behind the the atrium area on the rooftop to the northeast corner where the white >> Do you see Mr. Robinson now? >> I do. Yes. He's just arriving at the corner of the building >> What are we seeing now? >> Mr. Robinson lowering and jumping off of the roof of the Loy Loy building onto the grass area and then moving away And he appears to be carrying some kind So he's approaching >> campus drive >> and again broken into quadrants. Where is he currently? >> and the time >> uh it's 12:24 and 42 on the time stamp. >> What do we see now? >> He then crosses Campus Drive and drops down into the wooded area on the far And that is located in what part of the video? What quadrant? >> Uh it would have been just off center on >> What do we see now? >> Uh this is the intersection of Campus Drive and 800 South. Uh there's a vehicle attempting to turn right onto Campus Drive. Um that's the vehicle that's driven by Mr. Robinson. And on this on the screen, where is that vehicle that you're referring to located? If you broke it into quadrants, >> uh, it's on the left side on the on the >> Now, what do we see? >> That vehicle is now pulling away and >> And And why do you believe that that vehicle is Mr. Robinson's vehicle? Uh when that vehicle was stopped, it actually made contact with an officer who was doing security detail. >> Okay. And do you know who that officer is? >> Officer Goforth. >> Okay. And do you know which department he works for? >> Uh Spanish for police. >> And did you have a conversation with Mr. Go forth regarding uh this interaction at that intersection? >> I did. Yes. >> Okay. And and what time was that interaction? I'm sorry. Did I ask you that? >> Uh it was approximately 0 uh 12:30 a.m. >> Okay. Uh on the 11th. on September 11th, 2025. >> So you talked to officer Goforth about that contact on the corner on that or during I guess during the early morning hours of the 11th, >> correct? >> And and what did officer go forth tell you about that interaction? Uh it it was an interaction that I guess I guess cop intuition, but there was something about the interaction that made him make a note of for the license plate of the vehicle. And then subsequently um when information was available that that vehicle or a vehicle matching the the description of that was involved in the incident, he ran the information that he had obtained from the stop and was able to identify that it was uh registered to Mr. Robinson and he had in fact had contact with Mr. Robinson on the morning of September 11th, 2025. >> The the information that he ran do do you want information he when you say that he ran information? Yes. He ran a partial plate. >> Okay. A license plate. >> Correct. >> And and based on that partial license plate, he was he was able to identify the the the owner of that vehicle? >> Yes. >> And did he tell you who the owner of that vehicle was? >> He did. Yes. >> Okay. And who did he tell you that it belonged to? >> Said there were two registered owners of the vehicle, Tyler Robinson and an Amber Robinson. >> Did he did he say anything about the person that he actually interacted with? >> Uh, yes. It was a male that he believed Let's um let's return again to what's >> uh again you've reviewed that video. >> Yes. >> And the difference between 12.1 or what's been marked stakes exhibit 12.1 and 12.4 for are are if I understand you correctly are these enhancements that we've been talking about. >> Yes. >> And and specifically what what be specific be specific about the enhancements and let's go one at a time. >> Okay. >> Um I think there's a reference to either red circles or red highlights. I think that's how uh Mr. Olsson described it. Red highlights. >> Yes. >> Do you know do you know what he's uh what is what's what is he referencing by the red highlights or what do you believe he's referencing? I believe he's referring to red ovals or circles that were placed over the image to identify specific individuals of note. >> And um these red circles are are they are they permanent red circles? Are they temporary? >> I different. >> I would assume they are temporary. I'm I'm not very technological, but I believe they would be overlaid over the image. >> And and I this is a is a bad question. What I mean by that is is do they appear and disappear quickly or or do they linger or last for a period of time? >> Um they're there for a notable period but I I believe they come off the video if but >> All right. And um other than well and and you said that the the circles what do the circles do? >> They identify an area or a person of of interest within the video. And and other than do that, do the circles or the highlights um do they do anything with regards uh to to the uh the video itself as far as accuracy? >> Not to my knowledge. No. >> Okay. The I think the next uh enhancement that that has been mentioned that we've talked about is there's some blurring. >> Yes. >> Do do you know what that tell us what that is? What blurring do you see in state what's been marked as states exhibit 12.1 uh that you now don't see in 12.4? for >> if I recall, there were some individuals uh in the parking garage footage and their faces were blurred >> is is any anything other than faces being blurred? >> Uh not that I recall. No. >> And and how often do you see the blurring throughout the video? >> I believe it's just in the in the original sequence in the parking garage. the um the other than the blurring um does well does the blurring other than obviously blur out part of the image does it change or impact uh the the accuracy in your mind of that part of the compilation video? >> Not to my knowledge. No. >> And then the last thing is I believe is there some zooming in and zooming out that's in 12.1 that has been removed uh from 12.4. What can you tell us about the zooming in and the zooming out? >> Uh, predominantly it's in the area that was uh referred to as viewing the Losi building rooftop. >> I believe it focuses on the area where Mr. Robinson comes up the stairs and onto the rooftop. Uh, those portions of that particular footage were zoomed in for clarity. Okay. Other than other than zooming in and zooming out um does does at least that enhancement to the video does it change uh the content of the video? >> No. >> The accuracy in the vid of the video in your mind? >> No. >> Okay. is the uh are the enhancements in states exhibit well it's been marked as states exhibit 12.1 uh are they helpful in any way or what what do they add or or take away from that video? I think for people who are not familiar with with the area and what's trying to be shown, they allow an opportunity for people to look at an individual who we believe to be Tyler Robinson and also specific movements um with more clarity than the original focal point gives. >> So let's let's talk about the the zooming in and the zooming out. It sounds like it's specific to the the Losi rooftop if I understand you correctly. >> Yes. >> Okay. And and I think we we've all watched that exhibit. Correct. Point4 and and although you can see uh Mr. Robinson and his movements, uh is it fair to say that it's difficult to to really see what's going on? >> That would be fair. Yes. >> Okay. And and the the um the version that's in 12.1, does it does it facilitate at least that part of the video um seeing Mr. Robinson and and and tracking I guess his steps? I believe so. Yes. Okay. Judge, >> at this point, I think in combination with yesterday uh the foundation that was laid yesterday, uh including uh the written statement from Mr. Olsen, which has been admitted into evidence and is um well, it's already been admitted into evidence. Uh we believe there's enough foundation that uh at this point, we'd also ask the court uh to admit uh what's been March State's exhibit 12.1. We think it would be um well beneficial for your honor to view it. >> thank you honor. We renew our authenticity objection and we also object to the for admission purposes and then we also object to the um publication for the same reasons the fair trial issues that we raised with the unaltered version um that was just submitted. And judge, sorry I neglected to to mention the other two. Again, judge, we believe that the the presumption is is that this is a public record. Uh that it should be not only admitted, but it should be published uh here in the courtroom and it should be published in such a way that the media can have access to it. >> All right. I I do have a question and just directing your attention to the Utah rule of evidence 403 to the last phrase the last u four words in that. Do you wish to >> Judge, I'll I'm going to have to look at 403 specifically for those last you want to share. >> I can read that or needlessly presenting cumulative evidence. So that the court may let me just read the whole rule for for completeness. The court may exclude relevant evidence if it's prob probative value substantially outweighed by a danger of one or more of the following unfair prejudice confusing the issue misleading the jury undue delay wasting time or needlessly presenting cumulative evidence. I'm not looking at anything else other than that last portion. I recognize there is no jury. I am the magistrate. I am the factfinder. But just addressing that last point of rule 403, >> right, Judge. Well, I don't believe that the evidence is cumulative. I think the the each of the two videos, although they portray uh basically the same footage, um there's there's characteristics of the one that has been enhanced that I think makes it easier for your honor to truly see what's going on. Um and and for the public to see what's going on. I mean, we've displayed 12.4 for on on on the video. And unless you have very very very good vision or you've zoomed in on that that uh monitor, you you really can't see what agent Hull has just described. The character of 12.1 is it simply it it it enhances um that that at least important parts of uh that exhibit and it just makes it easier to see not only by your honor but also by the public. Um and and specifically as it relates to the uh the zooming in and the zooming out. >> Okay. Anything further from the parties as it relates to >> 12.1? >> All right. Well, I will admit 12.1 into evidence. Uh but as it relates to uh playing it in the courtroom or on uh the television, well for the media, I find that it is um well as the factfinder I I will look at the evidence and and and weigh it as as a magistrate is required to do, but I do I I don't find it's necessary to replay this video given the representation that's the exact same video. The difference being enhancements made. Um if it was different in any way or if it added to or subtracted from uh that would be one factor, but because it's simply the same video simply zooming in with circles or or notations, uh the court does not find that uh the interests of justice requires it being played again. Uh but it is received into evidence and will be reviewed by by myself uh in determining a probable cause determination. >> And I appreciate that, Judge. And just so we're clear, states exhibit 12.1 has been admitted. >> It is received into evidence. Yes. >> And your intent is to review it in in its entirety, but not here in the courtroom. >> Yes. >> Um can I make one suggestion, judge? Um or or or maybe one run request. I I I I I believe the most important part of the most helpful part of this video is the zooming in and the zooming out. And uh that is a portion that if you want, we could isolate that and only play that portion of the video if you'd be willing to publish that portion of the video. And and that's really uh the the the thrust of why we are trying to introduce that exhibit because we we believe that it's it's it's helpful to see it up close and and unfortunately because of the way it's formatted and the way it's been recorded there there's no way any of us can zoom in and zoom out on this video to get a better look at what's going on. And that's the reason why we did what we did. Uh but we had to memorialize it and save it. um and and then present it in that way rather than just present it in its raw form and then have the ability to zoom in and out if that helps your honor understand why we're doing what we're doing. >> All right. Uh Miss Nester to the second request of not playing the whole video in its entirety but simply the portion with a zooming in. How long is that, Mr. Sturgil? >> I I think it's a couple of minutes. >> All right, Ms. Nester, >> we object to the prejudice of that, your honor, and ask the court to stand by your previous ruling on that. >> All right. Here's Thank you. I appreciate uh both parties. What I will do is is uh review this video in court and it will be displayed to the monitor's council table and to the court's monitor uh on any portion that you wish to play for me to look at. So all parties can see clearly that the court is reviewing it in court but I do not find that it is necessary for its publication because this is the exact same video. I recognize it's zooming, but uh in in balancing constitutional rights uh in in there is nothing on this video from what's been represented that the public hasn't already seen. It's simply zooming in and I don't find that that is necessary or uh and so in in balancing the constitutional rights of all parties, I'll view it on the monitor. council's free to view it with me as I'm looking at it, but it will not be uh broadcast in the courtroom or uh by by the video camera. Right. I appreciate that, Judge. I respect that. I I think there's a a a natural break where we can start. And what I'm going to ask is we simply play the the most. >> You you will have this entire exhibit in in evidence though. Is that is that right? Yes, I will. >> All right. Whenever you're ready, council, as it relates to your monitors, just as a caution, if you don't want it to be wished to be picked up, and I'm not saying it will. I know our camera operator is being diligent in ensuring that complying by the rules, but in in an abundance of caution, this is just your moment to to take care of your >> So, if I just have one moment, hold on. Really? Not sure where the power button is on this. All right. Council for defense. Uh, are we prepared? And for the state? >> Yes, judge. >> All right. Thank you. Having heard from both council, I'll go ahead and review it on my screens. It is not being displayed in the monitor in the courtroom. And uh uh you may present the 12.1 the portion you wish to for me to view. And just for the benefit of the record, do you want to put on the record the time stamp of what you're playing, at what point you're starting and stopping as we go or when we finish is fine. [clears throat] >> There's a difficulty in doing that. It's because we've zoomed in. It's it's removed the time stamp on it. Well, you can just give me the the count the count on the bottom. There's a timer at the bottom of the total length of the video. So, that's fine. I'm just trying to create a record of what exactly I'm >> [clears throat] >> Whenever we pause on the court system. >> Oh, I see. No, it's >> limitations of technology sometimes. Count on the video is just before 6 minute mark, judge. >> All right. >> And just so the record's clear, this is states exhibit 12.1. >> I have it on my screen. It's It's So it looks like it's been paused at 6 minutes and 9 seconds. >> Agent Hall, can you see it? >> Yes. >> Okay. Well, let's just I'm good with >> We'll play it. >> Go ahead, Kimberly. >> [snorts] >> All right. And it's been paused it looks like at 6 minutes and 23 seconds. >> I'm sorry, Judge. Uh, at 8:23 we stopped the video. >> Oh, 8:23. >> 8:23. That's the count on the video itself. >> Thank you. >> Okay. >> All right. Thank you, Mr. Surgel. Um, agent hole, you were able to watch that zoomed in version. Is that is that right? >> Okay. And was was there anything uh that stood out uh watching that zoomed version? >> Um, for me on the zoomed version, it it's apparent that Mr. Robinson, the individual jumping off the roof, is carrying an item. >> Okay. and and you can see clear the clothing that that that he's wearing >> to leading. >> Strike that. >> Mr. Sturgil, do you want to respond to the objection? >> Judge, it is leading. Um, >> I'll go ahead and uh sustain the objection and that uh you may move forward. >> Is it is it easier to see? >> Um, well, strike that judge. I'll let the video speak for itself. Judge, I have nothing further with agent. All right, Miss Nester, >> one moment, your honor, if I may have a Thank you. >> And I was just going to suggest that uh it seems like right now is a good time to take our morning break. It is uh 10:15. Let's come back at uh let's come back at 10:30 and we'll resume with crossexamination of agent. Court is now We'll go ahead and pick up where we left off. I note that the parties uh for each side are present in the courtroom and we are picking up with crossexamination of Agent Hall. Miss Nester, your witness. >> May it please accord. Thank you. Good afternoon, Agent Hall. Good morning. >> You and I have met before, but just to remind you, my name is Kathy Nester. I'm one of the attorneys representing Mr. Robinson. >> So, when did you leave the SBI? >> Uh, the State Bureau of Investigations. >> Yes. >> Uh, March of this year. >> March of this year. >> Yes. >> So, you were involved in this investigation from September to March basically. >> Yes. And your new position at Post, what is your new position? >> I'm an investigative sergeant. >> So you investigate potential wrongdoing of police officers? >> Correct. >> Okay. Um, so when you were first brought into this case in September, is it my understanding from your testimony that you were not engaged in any way with this event prior to getting a call after the shooting? Is that correct? >> Correct. Does the SBI on occasion assist other agencies with preparing for big events like this or not? Is that's not typically something you do? >> Not something that I've ever been involved with. No. >> Okay. Um, and what time did you arrive on campus that day? >> Uh, I believe it was shortly after 1:30. >> So, approximately an hour after um Mr. Kirk had already been removed from the >> approximately. Yes. >> Okay. And were you involved in um in um [clears throat] putting up any drones into the air? Were you part of that or were you not involved? >> No. >> So, how quickly after you arrived on scene did you become aware that you were actually going to be in charge of the scene? >> I believe it was approximately an hour after. or what would have been approximately 2:30. >> So for the first two hours you were not in charge. >> Uh for the first two hours I wasn't I I didn't arrive till 1:30. So no. >> Okay. And once you came from on high that you were basically going to be in charge of the scene, what was the what was your first priority? What were you focused on? Uh we were focused on through our major crimes team and our lieutenant putting together an investigative team and developing initial assignments and a plan as to what we were going to do moving forward. >> And part of that is protecting any potential forensic evidence that may be found on the scene. That's clearly important. Right. >> Correct. >> Preserving the scene. >> Right. >> Correct. >> But it sounds like that's not really your area. that was more maybe agent Fina's area. >> Agent Felmina was assigned to process and document the crime scenes. Uh it was my understanding that the known scenes at that time um amid the chaos had been contained and had been secured by the on the onampus officers who were already on scene. >> And what's your understanding of what the known scenes were? In other words, the area where there might potentially be evidence that you needed to process. I know that the amphitheater area was was cordoned off and managed as best it could with the with the number of people that were there. I was also made aware that there was a rooftop area that had been secured and also an area off of the side of that building that had been secured by an officer >> and that building was the Losi building. >> Correct. >> Wasn't there also a bullet found on another building? I believe an unfired bullet had been found on another building at some point during my time there on September 10th. Yeah. >> Which building was that, sir? >> I don't recall. >> Was that considered a scene that was worth preserving? >> Uh, it was not. My recollection is that that was accounted for as an ejected cartridge from an officer who had cycled his rifle. >> Okay. I thought you said it was an unfired bullet and now you're saying it was a cartridge. >> When when a weapon is cleared >> Uhhuh. >> Um an officer would make his rifle ready which would chamber around. >> Oh, I got you. >> My understanding was that that's how that was accounted for. >> So a officer claimed it that bullet belonged to him or her. >> That's my recollection is that that that was how it was accounted for. >> And when when was that accounted for? >> I don't know specifically. Do you remember what type of bullet that was? >> I don't. >> Was it a 30 odd six? Do you remember? >> I don't. >> Okay. Do you know where that bullet is now? >> I don't. >> Okay. Um, so you had the amphitheater area that had to be preserved. Um, and how far out did that stretch? The entire amphitheater or just the area around the tent or what? My understanding was the entire amphitheater area was cordoned off and there were attempts to secure the campus itself with a perimeter of officers who were monitoring or preventing people coming and going. >> When you arrived on the scene, were you aware that an individual had been taken into custody? >> I had heard that. Yes. >> Did you ever have any interaction with that individual? >> I did not. And were you advised at any point that that person was no longer a person of interest? >> Information was passed down that the individual was not considered to be a suspect in the shooting. >> And when was that timewise? >> I don't recall specifically, but I know I was on campus when I had the >> So, whoever arrested him as a potential suspect got that wrong. He wasn't the actual suspect, right? >> Sorry. Got what wrong? >> That he was the shooter. The person I believe to be the shooter was not the individual who was taken into custody. Correct. >> And then was there anybody else taken into custody as a person of interest? >> Uh there were several people who were uh detained for questioning and and who were interviewed throughout the investigation >> and none of those people were ultimately they were all ultimately cleared by you or somebody connected with you. >> Correct. >> And were there any other guns confiscated on the scene that day? There were other firearms that were located on the scene. Yes. >> How many guns were confiscated that day? >> Um I I don't know specifically confiscated, but I know that there was a firearm found in a backpack that was accounted for uh during the day. >> What type of firearm was that? >> It was a handgun. >> Any other guns that were found on the scene? Do you recall an individual named uh Noah Gonzalez being interviewed? >> I don't recall that name specifically. >> Um let me see if it refreshes your memory that he was an offduty I think maybe trooper that was on the scene that day and that was involved in recovering the holster. >> That refresh your memory. >> I know that a trooper was interviewed having been on scene. And I don't recall if it was Gonzalez. I don't recall the name, but I do know there was a trooper that was interviewed. Yes. >> Okay. And >> And do you recall the trooper that was interviewed saying that there was actually a gun found in that holster? >> I do not. >> You do not? >> No. >> Okay. exhibit hall 13 and just show it only to the witness for All right. Can we go to page two of that report? Do you recognize this report? Have you reviewed it as part of your um investigation duties? >> I do recognize the report now. Yes. >> Okay. And this is a report prepared by um actually Mr. Davis who's going to testify later in this matter. Is that right? >> Uh correct. >> Okay. And on page two, this is the interview of Noah Gonzalez. Is that right? >> Uh that's what it stated on page one. Yes. And he's an offduty trooper who happened to be there that day. >> Correct. >> And do you see on the second paragraph, does that refresh your memory about whether Trooper Gonzalez um believed there was a gun found in a holster in that area of the amphitheater? >> Trooper Gonzalez included in his report that there was a gun. Yes. >> Okay. Okay. When did you first um personally go up to the roof of the Losi building? Do you remember the time of that? >> I don't recall. I know it was it was dark when I went up to the roof, so it would have been later that evening. And at the time you went up there, there was already crime scene tape that had been placed around it. >> There was there was an officer standing security. >> Right. >> And to your knowledge, as the head of the investigation, did they ever find any bullets or casings anywhere on the LOC roof? >> Not to my knowledge. No. >> Did they ever find any bullets or casings anywhere around the LC building? >> When you say around the Los C building, you mean how close? like immediately around the loy building. Correct. Not to my knowledge. No. >> Okay. >> And then you've been talking a lot about a timeline here that um seemed you talked about it when you were watching the video, but you also talked about the fact that you developed a timeline. Is that right? >> Correct. >> And can you pull up um hole one, please? I'm pulling up on your screen your your report that you prepared. Um, do you recognize that? >> I do. Yes. >> And what's the date that you drafted that report? >> That looks like September 14th. It says date created. >> And that's the place where if you could >> Do you see down at the bottom where you summarize Sergeant Bricker's report listing the timeline? >> Yes. >> Okay. And so it was actually Sergeant Bricker that prepared the timeline. Is that right? >> He prepared a timeline. >> And you incorporated that into your report? >> No, I created a timeline. >> You created your own timeline? >> Yes. >> Separate from the one that's in this report? >> Yes. Using using information obtained in the investigation. >> And when did you create that timeline? >> Over the course of the investigation. Over over a long period of time. after a lot of reviewing video and and investigative time. >> Okay. So, as of September 14th, Tyler Robinson had already turned himself in to the authorities. Is that right? >> Uh, yes. I believe he turned himself in on September 11th. >> So, prior to the time that Tyler Robinson turned himself in, had you all prepared a timeline? >> A documented written timeline? >> Yes. Um, not to my knowledge. I don't know when Sergeant Bricker produced his specifically. >> And And isn't it fair to say that as of the moment that Tyler Robinson voluntarily surrendered to authorities in Washington County? As of that moment, you all did not know who the shooter was. Is that right? >> We had identified a person of interest, but we did not specifically know who the shooter was at that time. >> Okay. And you became aware that Mr. Robinson was voluntarily surrendering. How? How did you become aware of that? >> That information came originally, I believe, from the Washington County Sheriff to the administration at the uh the control center at the university on the evening of the investigation. Okay. >> Or the second evening of the investigation. >> Right. We're going to get back to that in a minute, but I just wanted to get the timeline down. All right. Now, I want to go back to the videos that we've seen and the um question that I just asked before, which is, is it fair to say that nothing about the video of the individual on the roof revealed to you? You couldn't see facial features, you couldn't see what they were wearing. Correct. >> Of the individual on the roof. >> Correct. >> Um I know that there was a meeting to discuss perhaps a pattern on the front of the shirt that was observed when the individual was jumping off of the roof. Okay, that's fair. But at that time, as of the 11th, before Mr. Robinson turned himself in, you all had not been able to determine that. Is that right? >> Excuse me. Determine who he was or determine distinguishing features? >> Determine distinguishing features of video of the person on the roof. >> Yes, we had a person of interest and those images were released to the press. >> You're talking about the ones in the stairwell from the >> correct >> from the parking garage. >> Correct. But the video on the roof was not distinguishable. Fair. >> That video as a standalone. >> Yes. >> It was not. No. >> Okay. >> And in fact, the video on the roof. Is it true that you had um some spectators that you interviewed that had gotten a photograph a few seconds before Sorry, I'm not sure I understand the question. >> Did you at some point in your investigation collect from two young men who were present at the event a video that they had taken of someone on the roof about 10 seconds before the shooting? >> Yes. A video. Yes. Not photographs. A video was collected from an individual who had a a video >> and ultimately some screenshots were taken out of that video. Is that right? by >> by you? >> Not by me. No. >> Okay, that's fine. It could have been someone else. >> Okay. >> Um, but did you see the video that those young men took? >> If you're referring to the video that is looking north and shows an individual dressed in dark clothing on the corner of the roof, if that is the video, I have seen that video. Yes. >> Did you review the interview of those young men? >> I did not. >> Do you know what they how they described the person on the roof? Uh, I don't know if I read it or if I heard it, but my understanding was they believed it was overwatch or some kind of a a police overwatch for the event. >> Okay. >> If that's my recollection. >> And do you remember anything specific about the person's build that they discussed when they described the person on the roof? >> I do not know. >> Okay. There is um a portion of the video after the individual jumped off the roof which we all saw here where the individual crosses I believe it's campus drive. Is that right? >> Correct. >> And there's a moment where the individual waits and there's two cars that pass in front of him right in front of him. >> Correct. >> Um and is this the moment where you are sub submitting that he was holding a gun in his hand >> as he crossed the road? >> Yes. I from my observations would show that he's carrying an object in his hand that's concealed or in a bag and it is long and has the appearance based on my training and experience it could be a firearm. >> But do you see a gun anywhere? >> The actual >> in the video? >> Yeah. >> No. >> All right. And did anybody that was driving by on campus drive that day report to you or any other investigative entity, hey, we just drove by a guy with a gun who was leaving campus and he was standing right by my car. >> We did not receive any reports to that effect. No. >> Okay. Also, when you were revealing the timeline, uh exactly how long was there between when the person was prone on the roof and when the shot was taken? Do you recall? >> Uh if you if you would like to replay the video, I can time it for you, but I don't recall. It was my guess my guess I would estimate between 15 and 30 seconds. >> So between 15 and 30 seconds to lay flat, take a shot, and get up and run off. Right. >> I I think you asked how long he was prone. I think it took longer for him to crawl into position. >> Okay. >> And then establish a position. and then take the shot. He appeared to be in prone for approximately 15 to 30 seconds, but the video would verify that. I want to talk to you for just a minute about the video that was taken. Um, and I'm not going to get into the I'm not going to show it just so that in case anybody's concerned about leaving the courtroom. I'm not going to show it. Um, but there was a video that was taken by Mr. Ty Phillips from um behind the individual that was speaking to Mr. Kirk. >> Correct. >> And it showed like a dead-on view of Mr. Kirk and his parts of his security team. And then you also have video that you described that shows the back of the tent um at the moment the shot happened. Is that right behind Mr. >> You're referring to the UVU video in the breezeway? >> Yes, >> we have that video. Yes. >> Okay. And can we pull up um the last Um, I want to show you just you this clip. Um, that is a little clip from that video under the breezeway that's behind the tent. Right. Correct. >> And and just to be clear, this area behind the tent would not have been visible to anybody that was on the Losi building. Is that fair? >> I can't answer that question. I And Miss Nester, as you're um playing this, are are you just being cognizant if the sound is on or not? >> I don't want the sound. Please. >> Okay. I just wanted to >> Thank you for bringing that. Thank Thank you. >> All right. >> No sound. I just want only the witness to look at it. So, can you just watch this clip for just a minute? this one little clip of behind the breezeway at >> That's fine. And so just as a reminder to all the parties, if it's on your monitor, please be cognizant of that. It will not be displayed on the main monitor. Miss, you may proceed. >> Thank you. Okay. Do you remember that? Does that refresh your memory of what's in that clip? >> Yes. >> And having reviewed that at the time the shot was fired, um, there was no one standing directly behind the tent. Is that correct? >> Uh, you'd have to show me it again. I wasn't specifically looking for that. >> Okay. >> But I can answer that question if I can view the video again. >> Okay. And just before you do that, I think you testified before that Mr. Kirk would have been dead center behind that banner. Is that right? >> Approximately. >> Okay. So, what I'm asking is if anyone behind that banner, dead center behind Mr. Kirk, if there was any people >> So, there's a there's a videographer on the right side of the tent. And then I can only see as far as the video allows me to. So I can't speak to whether there's anybody out of frame who could have been behind the tent. >> But what you can see is there anyone directly behind the middle of the tent? >> Yes. There's a videographer stood behind the tent >> to the right. >> Yes, behind the tent. >> Correct. But directly in the middle of the tent, is there anyone standing? >> There's no one stood in the middle behind the tent. No. >> All right. I want to talk now about the TP. You can take it down off of the screen. Thank you. I want to talk now about the TPUSA video that you got. That was the angle that was taken from behind Mr. Kirk while he was talking, looking out at the audience during when the shot was fired. Do you remember that video? >> The Visual Impulse videos? >> Yes. >> All right. Is it true that Visual Impulse provided four videos? >> Uh, yeah. I believe there were four total videos that encompassed everything that they provided to us. Yes. >> But the one that you showed, that's only one of the four that they provided to you. >> Uh that that one that was shown had a Bates number. It was a an item that was provided by Utah County Attorney's Office. >> Okay. But were there more that you haven't seen in this courtroom in this prelim? >> There there's the original footage. >> Okay. >> But were there other angles that are not shown here in this prelim? >> Yes. >> Okay. That's what I was trying to get All right. Were you involved when the gun was located in the um forest area? >> I was not involved in the search for the gun. No. >> Did you get notice when it was located? Um, from the footage that we reviewed, we identified an area that we believed could be potentially of evidentiary value and then it was secured and then I was notified that as a result of that search, a gun had been located. Yes. >> Were you involved in the processing of that gun? In other words, >> boxing it, shipping it, sending it wherever it was going to go to be >> I was not. No. >> All right. Now I want to shift to the autopsy for just a moment. You were not present at the autopsy. Is that right? >> I was not. >> Okay. So anything you know about the autopsy was not from personal observation. >> Uh no other than from my meeting with the the medical examiner and his report. Um no I was not present. >> Did you meet with the medical examiner after he had conducted the autopsy? >> I did. Yes. And when you met with him, did you provide him information about what you all had learned in your investigation so far? >> Uh, we didn't have any reason to provide any investigative information to him. The purpose of the meeting was to establish what information he could provide to us. >> Well, in fact, on the front page of the medical examiner's report, he talks about the investigation and information he learned. Did he learn that from you or did he learn it from someone else? would be my recollection that he did not learn that from us, but I couldn't speak to how he did learn about it. >> Okay. So, you didn't share with him your conclusions about what happened or how Mr. Kirk was injured or anything like that? >> That's my recollection. >> Okay. Thank you. And isn't it also true that fingerprints that were taken um from Mr. Kirk and autopsy photos were provided to you on a CD? >> Yes. >> Was there anything else provided to you from the autopsy other than that? Other than the CD and the report? >> Yes. >> Not to me. No. >> Okay. >> You did mention not to you. Were you aware of anything else from the autopsy going to anyone else? >> I believe standard practice is anything of evidentiary value that the medical examiner collects is transferred through a chain of custody. >> And are you aware of anything that was transferred after Mr. Kirk's autopsy? >> I'm aware that there were items transferred for evidence. Yes. >> What items? I believe some uh fragments of a bullet casing. Um I know Mr. Kirk's personal items uh to be returned to the family. Um that's all I can recall off the off the top of my head. >> Do you know how many fragments from the bullets? >> I don't. >> Okay. >> Now, I'd like to talk a little bit about the ring camera that um you obtained and you interviewed a woman named Miss Noble. Is that right? To get that rigging camera that we watched with the car on the outside. >> Uh, she we interviewed her to verify the authenticity of the video. Yes. >> And were you involved in that interview >> with Miss Noble? >> Yes. >> And do you recall what they told you about what they remember seeing in and around that car that night? >> Uh, I don't recall. I I just know we were there to verify the video. I didn't conduct an interview with Miss Noble at that time. >> Okay. Can we please bring up whole? This is Miss Noble's interview. Do you >> All right. Do you remember that looking at that interview? Does that refresh your recollection? >> I remember reading the report at some point. Yes. >> And do you remember that the nobles told you that the driver of the vehicle was bald? >> I I do remember that being in the report. Yes. And you didn't mention that today when you were talking about that ring camera, did you? >> I did not. >> And did they also tell you there were >> Yes, I believe they they thought that was the case. >> Okay. >> I want to go back if I can to the scene. um the scene itself pres the preservation of the actual scene where the um where Mr. Kirk passed. Um did you all have K9 dogs at any point that sniffed that area? >> I don't know specifically that area, but I do know that Kines's were present or a K9 was present on the day. >> But you don't know what task the K9 was given? >> My understanding was that it may have been used in an effort to track an individual that had jumped off the roof, but I don't know for certain. And obviously that didn't produce any results or we would have heard about that, right? >> Yeah. Not that I was made aware of. were do you know when the tent and the stuff was actually removed from the scene? >> I don't I would imagine it had been at least a couple of days if not longer than that before anything was removed from the scene. You didn't have to give permission to remove the tent? >> Me personally, right? >> No. No. >> So, you're not sure when it was removed? >> No. >> Um, and were you involved in the decision to pave over the dirt that was under the tent >> at UVU? >> Uh-huh. >> No. >> Did you know that happened? >> Only because it was in the news. >> All right. But you don't know when or who ordered that? >> Nope. And it's true that during the time before Mr. Robinson turned himself in, you all received lots and lots of tips from the public. Is that fair? >> Correct. >> You received tips of death threats that Mr. Kirk had received before the day >> I'm sorry. Did we receive threats that Mr. Kirk had received before the event or >> Let me clarify that was a confusing question. >> As you were going through tips that the public was giving you, did you receive tips about online death threats that had been made against Mr. Kirk prior to his death? >> There was a a huge variety of of tips and information and suggestions that were being provided by the public. >> Okay. And a lot of those some of those filtered through you, right? Uh some of them filtered their way down to ours, but predominantly that was being handled by our state information and analysis center that had been set up. >> And you also got multiple tips about potential suspects, people who thought they recognized people in the picture, right? >> Yes. There were different calls and and information provided by the public. >> And you had quite a few of those. >> Correct. >> And then Mr. Robinson turned himself in, right? Yes. >> And is it your understanding that the individual they used to facilitate Mr. um Robinson turning himself in was someone known to Mr. Robinson personally that had been connected to law enforcement. >> I know he was known to the family. I don't know his connection specifically with Mr. Robinson, but I am aware that someone was used to facilitate Mr. Robinson turning himself in. >> And were you aware that he was um one of his Boy Scout leaders? Did you know that? >> I think I had heard that at some point. He there was a connection. I just I don't recall specifically what it was. >> And um Mr. Robinson, in fact, no police went to go arrest him. He drove himself or he was driven with his parents to the Washington County Sheriff's Department. Correct. >> That's my understanding. Yes. >> And he voluntarily walked in. >> That's also my understanding. Yes. >> And that was the first moment you ever knew his name connected with this case. Uh yeah, aside from the image that we had, that was the first time that we had a name of an individual who who had taken responsibility. Yes. >> And did you personally ever meet with Mr. Robinson? >> And as far as you know, Mr. Robinson did what he said he was going to do. He told the police he was coming. He was coming peacefully. He was coming with his parents. And that's exactly what happened. >> I don't know any of the specifics of how he was arranged to turn himself in. >> Okay. >> In in terms of what you've described, I just know that it was being facilitated with the the sheriff's office. >> Okay. >> Court's indulgence for just a moment, your honor. >> Yes. Thank you, Agent Hall. Attender the witness, your honor. >> Thank you. >> Just going to go back to a few things that Miss Nester asked you about. First of all, the the unfired bullet that you referred to, it's your understanding that um that bullet was accounted for. >> That's my recollection. Yes. >> Okay. And it possibly belonged to an officer that could have maybe been clearing his weapon. >> Yes, that was that was the that's what I recall being told about that particular item. Yes. Are are you aware of um if if on the 10th there were police officers present that were actually securing buildings and securing rooms here at UVU? >> I know prior to my arrival um there was it was a dynamic and active scene that I believe was originally being treated that there was an active shooter on campus. Mhm. >> So there was a large rapid response of law enforcement um who were actively trying to clear, secure and ensure that the campus was safe if that if that answers the question. >> The entire campus. >> Yes. Correct. >> Okay. And and what what types of officers uh were there clearing the campus? Originally there would have been uh probably local units um who would have responded but subsequently uh specialty teams would have been deployed uh to do a more methodical search of the campus and what we would call a clearing of the campus >> and those specialty teams and and any other officers how how were they were how were they equipped like what what type of equipment were they car >> I believe most officers carry a sidearm a handgun >> and most officers uh in this day and age are equipped with a rifle platform as well. Okay. When you said that it it was possible that that round uh was from an officer clearing his weapon, what what exactly do you mean by that? >> Um our standard practice in our department is to carry a rifle cruiser ready. >> Uh which is >> we carry our rifles in a situation which is called cruiser ready. >> What does that mean? >> Means we don't have a round chambered. Um, so if an officer deployed with his rifle, he would chamber a round. Uh, once he had done whatever task it was that he was doing, in order to put that weapon back, he would eject the magazine and eject the round. Sometimes in doing so, rounds are dropped or not accounted for. >> Okay. Have you personally done that yourself? >> I I we do that at training and I've done that in the field as well. Yes. >> Okay. And you're aware of is that something that's common among police officers in this situation? I believe for most agencies that's that's how they carry their their weapons, but I can't speak specifically to agencies outside my own. >> Do do you have any idea how many officers were were were dedicated or sent out to clear the campus? >> I I can tell you I had to park on University Avenue and walk all the way onto campus between hundreds of police cars. So I would say hundreds if not a thousand officer, high hundreds would have responded to the campus that day. >> [snorts] >> Now, I'm going to ask you about uh Miss Nester asked you about um your observation of of seeing uh Mr. Robinson with something in his hand. And I think I think she was asking you about Mr. Robinson just prior to crossing campus drive uh following the shooting. Do you remember that question? >> Uh yes. I think I was asked whether he had a gun in or I had seen a gun in his hand in the video. And and you and you said that you did see something in his hand. >> Correct. >> Okay. I want you to go back as far as you can remember. At what point um after Mr. Robinson stood up on top of the Losi building and ran across, I believe to the north northeast corner. When did you first notice uh in that video something uh in his hand? The f the first time you can clearly notice he has something in his hand without a doubt is when he's on the white triangular portion >> on the north east corner of the Losi building preparing to jump, but it's very apparent he has an item in his hand. >> And that's based on your observation of the videos. >> Correct. >> Okay. And is it easier to see in that that enhanced video? >> The the zoomed version of the video makes it a lot clearer to see. Yes. Okay. And then after he drops down off of the roof of the Losi building, do is there any time between that point in time and making his way to Campus Drive uh that you believe you see uh again something in his hand? >> Uh as Mr. Robinson lands on the grass. It's it's almost like he either drops it or or or goes into a crouched position and then when he returns up from that, it is again clear that there is some kind of an item in his hand. Yes. >> Okay. Can you be more specific or describe in more detail? >> It appears to be black and it appears to be longer. >> No. >> Okay. I believe it was exhibit nine, states exhibit nine that Miss Nester pulled up on the screen and she had you look at that and I believe I believe what you looked at was beginning a still image but then a few moments or a few seconds of that video and that's the UVU tunnel video. Is that right? >> Uh the breezeway underneath the Hall of Flags. Yes. And and the view is is from behind where I believe I believe you testified that Mr. Kirk was on the other side of what appears to be a banner. >> Sure. >> In that tunnel view. >> Yes. >> And and on the other side of that banner is the tent and then the rest of the courtyard. Is that the same? >> Do do you remember seeing the banner? >> Yes. >> In the video. >> Okay. And and >> you're referring to the the back of the pop-up tent, >> correct? Yes. Okay. Yes. >> Okay. And and do you remember um what do you what do you remember about that banner? >> Uh it has some kind of an emblem on it. Um and it forms the back portion of the pop-up tent. >> Is it is it opaque? Is it transparent? Uh >> no, you can't see through it. It's white and and you cannot see through it. No. And um how much of the tunnel um does that banner I I guess if it's opaque obstruct? >> I I couldn't say. I'm I can I'm assuming it's a 20x 20 gazebo. So it would block out the area of the back of the tent that you can see >> not be able to see through it. You would not be able to see through it from the the audience side of the amphitheater. >> And and and what about the tunnel side of that that banner? Can you see through the tunnel side in the opposite direction? >> You cannot. No. >> Can you see Mr. Mr. Kirk on the other side of that banner? >> You can't. No. >> Okay. You you Well, we exhibited or Miss Miss Nester had you watch just I believe just a brief few seconds of that video. That that exhibit is actually much longer than what we just looked at or what M Miss Nester had you look at. Is that right? >> Correct. >> Okay. And leading up um and again I'm referring to that view, that tunnel view of that uh surveillance camera leading up to the shot. What's going on behind that banner? >> There are representatives, I believe, of TPUSA, but there are representatives of TPUSA. There are law enforcement representatives. I don't know if there's any student body, but essentially people are moving to and fro behind that area. A couple of individuals are retrieving items from a vehicle. Uh but there's consistent movement behind and in that area. >> Okay. >> Directly behind the banner, >> Uh Miss Nester asked you about um the wooded area that uh Mr. that Mr. Robinson entered. Well, Miss Netor brought that up and I believe your testimony has been between today and yesterday that you witnessed Mr. Robinson enter a wooded area on at least two occasions. Is that fair to say? >> Uh yes, on on his second visit to the campus and uh on the visit where the the incident took place. At least on those two occasions, did the wooded area that he entered, were they different parts of the wooded area or was it the same parts of the >> They appeared to be the same. >> You're aware that a a rifle was eventually discovered? >> Yes. >> And And was it your understanding that that rifle was discovered in a wooded area? >> Was it was in the wooded area where we believe Mr. Robinson entered the wooded And that rifle was discovered on the 10th. >> Miss Neser asked you about a variety of tips. Tips including threats to Mr. Kirk. Uh, I think before the event. >> Yes. >> And did you follow up on those tips? uh after tips have been put through a process and and been analyzed and screened, anything that appeared to have relevance to either the investigation or a credible threat was managed by the various entities involved. Yes. >> Okay. So, managed by law enforcement. So, >> correct. >> Did you personally follow up on any of the tips? >> I don't think I personally did, but I worked closely with people who did. >> The point is, I guess, is that those tips were followed up on. Is that fair to say? to the best of our ability. Yes. >> Okay. And then Miss Nester also asked you about tips, I believe, of of people um reporting to police that they felt like they knew who who the shooter was. >> Yes. >> Okay. So, identities of possible shooters. >> Correct. >> Did Did law enforcement follow up on those tips as well? >> Miss uh Miss Nester. Finally, uh Miss she asked you um whether Mr. Robinson voluntarily went to the sheriff's office down in in um southern Utah. Is that right? >> Yes. >> Okay. That was a Washington County Sheriff's Office. >> Yes. >> Okay. >> You understood that he turned him well he he showed up there voluntarily. Is that right? >> Correct. What was your understanding as to why he was showing up there voluntarily? >> Uh, he had informed, I believe, his immediate family that he had been involved in the shooting and that he wanted to turn himself in. in in the video that um uh we've already talked about the video where Mr. Robinson stands up and runs across the top of the LOC building. Is there do do you notice whether at that point uh after he stood up until you you see him last at least in that part of the video do you notice whether he's walking or running with a limp? >> Uh he is not from the time he left the after going over the railing when we see him on the video move out to the position >> correct >> and then leave the position there is no longer a visible input gate. Thank you, >> Miss Nester. >> No further. No followup, your honor. >> All right. May agent Hull be excused? >> Yes, your honor. >> All right. Agent Hole. Thank you. Thank you. >> We have just a minute to meet if >> All right. Let's take a five minute break and uh allowing parties to confer session. Uh we left off with uh agent Hall was uh excused and uh we are proceeding. Mr. McBride. >> Yes, your honor. Uh we intend to call uh Jennifer Falina, but before I do that uh I'd move the admission of states exhibit 5.1 if I can approach the bench. >> Yes. >> Thank you. Your >> honor, there will be an objection and we want to be heard on the objections and I didn't know this was coming now. Could be a lengthy call. >> All right. Let me just uh do you wish to identify what states exhibit 5.1 is? >> Yes, your honor. Uh exhibit 5.1 is a uh self- authenticating 1102 statement um issued by David Inglehart from Turning Point USA. >> All right. And again, I say it's a self- authenticating document. As you can see there, it's got the admonition on page one. Um, the body of the of the uh 1102 statement is there on pages one and two. Um, I would say number four is kind of the foundational statement, paragraph 4, but the self- authentication part portion is the notary acknowledgement on page three. All right. Turning to Mr. Novak. >> Thank you, your honor. Thank you, Mr. McBride. Um, so the court obviously because the courts the court can decide how much of this we discuss in open court, how much we discuss um at the bar so to speak, sidebar. Um there's initially a fundamental relevance problem with this um 1102 Um there are also there there are other issues but I think that just to help the court parse the evidentiary issues we should Um there are sub issues there's there's also a problem under 11:02 because if the court looks at the last paragraph of this Mr. Englehart, who is the purported author, refers to himself in the third person. So, it's not clear to me who actually wrote this report. And as your honor knows, 11:02 says that prosecutors are not to assist witnesses in writing their own 11:02 reports. Um I that's not um my primary concern, although I think it is an important issue because that's what the rules require. But the real question is relevance. And I guess the question is, does the court want me to um do the speaking objection? Because the court said no speaking objections. Should we approach sidebar? How does the court want to handle it? Um the people can move their exhibits and evidence when whenever they wish. Um I just I I wasn't aware we were going to do it at this moment. I'm ready to proceed, but the question is how the court wants to handle these objections. I'm prepared to keep going in open court, but it's what the court referred to as a speaking objection. >> No, I appreciate that. Uh, as it relates to >> Well, so here's my question for you, Mr. Novak, as as you're and again, I I appreciate your discretion and and highlighting that point. Do you anticipate your argument being of the nature that would uh would defeat the purpose of if the court does not admit this that you've already let the cat out of the bag with your argument or do you feel that you can make your argument without compromising u what is in the 1102 so the purpose of if of excluding it is still preserved. Um, I'll go as far as I think we can go and then we'll just see. I mean, I do think I don't I am not trying to um conceal from anybody in the courtroom or the public, >> of course, >> our concerns about relevance. So, why don't I taking the court's lead go forward publicly with my concerns about relevance and if we reach a moment where it feels like further argument may deprive Mr. Robinson of his fair trial rights, we can approach. >> All right, we'll proceed. what I'm going to do is I'm going to point out that this proposed exhibit which is the 1102 statement of Mr. Engelhart is basically four paragraphs. The fourth paragraph identifies Mr. Anglehart, although I say in the third person, as a pastor and as an attorney who was a friend and a counselor to Mr. Kirk and was um involved in leadership of So that identifies who the author is. Beyond that, it's not really relevant to any of the issues um before this court. Paragraphs one, two, and three. Paragraph one talks about TurningPoint USA's status with the um within the context of um the Internal Revenue Code and um sort of what I'll just refer to generically as the goals and objectives of Turning Point USA. Um, and it also then talks in the second paragraph about Mr. Kirk's relationship um with TPUSA. None of this is um unknown information that he was a founder, that he was the chief executive officer, that he was the president of the board until his death. Um, so I'm I'm still not sure what the relevance is. And I guess actually what I should say is I don't believe there is any relevance of any of this information. Paragraphs two and three are um and actually I'm going to preface this. My discussion of this is within the context of the rules of evidence. And there's nothing that I'm going to say here that is meant to um deriggate, criticize, question Mr. Engelhart's beliefs, what he says were Mr. Kirk's beliefs. um are tenants of Christianity. That's not what we're talking about. What we're talking about is whether this document is admissible in this proceeding under the rules of evidence. >> Okay. >> Okay. So, paragraphs two and the three include not only Mr. Engelhart's opinions, and now I'm going from relevance to opinion evidence. It's not clear to me whether it's lay opinion evidence, whether it's expert opinion evidence, but it's Mr. Angelart's opinions about a branch of Christianity. his opinions about a portion of the Bible. Um, he quotes the Bible and he talks about Mr. Kirk's uh, religious beliefs and I could go into more detail, but the court has the exhibit in front of it itself. So, none of this is relevant. If the court looks at the information that is the document which lays out um the allegations against Mr. Robinson when I use the word information I'm There are with respect to certain counts what Utah code uh refers to as a victim targeting enhancement. That is alleged with respect to count one. It is alleged with respect to count two. It is alleged >> And may I step away just to get my laptop? >> [snorts] uh, but I want the record to be clear when I refer to the, um, what the information calls the victim targeting enhancement, 14, which the code calls the victim and this is um I I'm emphasizing this, that Mr. Robinson intentionally selected Mr. Kirk because of Mr. Robinson's belief or perception regarding Mr. Kirk's political expression. And I'm going to focus, if I may, the court's attention on two things. One is whose state of mind are we talking about when or whose state of mind is the statute talking about and what aspect of the victim targeting The latter is Mr. Kirk's political expression. And now I'm quoting the statute as the personal attribute that the state alleges is the gateway to this uh penalty enhancement. And if the court will bear with me because there's a reason why we have these hearings in public. There are various categories for a for alleging uh I should say there are various categories of personal attributes. That's the phrase the legislature uses which um authorize the pursuit of a penalty enhancement. And those personal attributes are listed in the statute A I'm not going to read all of them because the court knows the law. But That is separate and distinct from the personal attribute that the legislature calls religion which is subsection M. So what we have is an allegation which is one of the elements of this enhancement um the allegation um that Mr. Robinson um selected Mr. Kirk was be based on his political expression. That's actually the exact same word phrase political expression as is in the statute subsection I'm sorry um the 1102 statement is predominantly about what Mr. Engel Hart describes as traditional Orthodox Christian values that he believes in that he believes Mr. Kirk believed in. And I understand in today's world that there is um a crossover between religion and politics. I think we can all acknowledge that. But the but the legislature and the information um here are focused on political expression. So I'm concerned that 1102 state the 1102 statement of Mr. Engelhart um goes far beyond the um scope of what would be admissible if the state has it to prove that Mr. Robinson targeted Mr. Kirk because of Mr. Robinson's um belief or perception concerning Mr. Kirk's political expression. The second element of this is that the victim targeting enhancement focuses on the allegation of what is in Mr. Robinson's state of mind, not what is in Mr. Kirk's views or deeply held beliefs, sincere religious beliefs. Um, and so the evidence that the state needs to present is not what Mr. Kirk believed or said or what TPUSA stood for. Um, it's what was in Mr. Robinson's head, if anything, about selecting Mr. Kirk because of Mr. Perk's political expression because that's the information. So why TPUSA exists, what its founding beliefs are, what its leaders beliefs are, what Mr. Englehart believes Christianity is or is not, um, is not relevant. And that's why we think it should not be received into evidence. There's a second level here which is Mr. Engelhart's um is in the Bible specifically Matthew chapter 9. And so I would just ask this court the hypothetical question. if the state asked the court to take judicial notice of a portion of the Bible in order to prove this enhancement because I can't see where else it fits into this case. I think if I may the answer would be no. It's not relevant. So instead what we have is the state trying to use the affidavit of Mr. Angelhart pursuant to 11:02 to get the court to essentially receive into evidence the same information. It doesn't really matter here in this proceeding It doesn't matter what Mr. Angelhart thinks. And again, I say this with all due respect to Mr. Angelhart, who I've never met. um the book of Matthew means or how one reconciles the book of Matthew as he sees it with other views the the topics that are there. I mean, I not suggest what other views are because I I I I shouldn't be testifying about different perspectives um within the sort of the heading of religion. But it doesn't really matter for this proceeding what Mr. Anklehart's views are, what Mr. Kirk's religious views were what religious views TPUSA endorses um seeks to encourage others to adopt. There are multiple opinions in this 1102 from Mr. Anglehart and it's not clear whether the state has thought about whether it's expert opinion or lay opinion. Um I happen to think that it's expert opinion that is not helpful to the trier of fact in this proceeding. That's your honor. There is nothing in this that helps the court resolve with respect to the victim targeting enhancement whether Mr. Robinson intentionally selected Mr. Kirk because of Mr. Robinson's beliefs or perceptions regarding Mr. Kirk's political expression. If the state comes back up here and says, "No, it's lay opinion," we still have the question of whether it's helpful to this court because the court has to decide whether there is evidence um of the target enhancement in the way I I think I've structured it. So, it's not relevant. It's not admissible lay opinion. It's not admissible expert opinion. There are two aspects of rule 403. One of which I'm prepared to talk about publicly and one of which I think is appropriately discussed at sidebar because it does get into undue prejudice. [snorts] The 403 here is that receiving this document into evidence going to create confusion. It's going to create chaos um not by the trier fact but by the future jury pool in this case for this court to make a ruling that Mr. Angelhart's opinions about religion, about TPUSA's views on religious matters, that Mr. Kirk's views on religious matters are in any way what this case is about, um, is going to create significant confusion. And even if this court doesn't show the 1102 in open court or the reporters who are here don't get to see it or if the public doesn't get to see it, receiving it into evidence in light of the victim targeting enhancement that the state drafted and charged um is just going to create confusion. Um there may be outside of this case litigation where TPUSA's purposes and its mission and its adherence to its mission um are important and Mr. Anglehart's opinions about that may be important in some other context in litigation in public discussions. um it's not important here. And when I say important, I'm saying it's not relevant. So there's a 403 issue with respect to confusion. There's a there there's a constitutional concern that this type of evidence being sanctioned by the court um is going to suggest to the jury pool um that this is a case about religion. This is not a case about religion. The state doesn't even allege this is a case about religion. The state alleges a one enhancement based on Mr. Robinson's perceptions of Mr. Kirk's political expression. So, I'm very concerned um that that this document even being sanctioned by the court as admissible for any purpose in this proceeding uh is going to um interfere with Mr. Robinson's constitutional right to a fair trial, which I think is a uh you know, sort of an umbrella over parts of rule 403. If at the time if there is a trial, if Mr. Robinson is bound over and if there is a trial and if the state wants to profer Mr. Engelhart for some specific evidentiary purpose um that I'm missing um then we can we can engage in that. But it seems to me that it's again a mixture of lay and expert opinion which at this stage um is more prejuditial than probative. Uh the other part of the 403 issue uh we can discuss at sidebar whenever the court's ready. >> Thank you Mr. Novak. turning to the state. And so just to give an overview, what I'm intending to do is address what Mr. Novak has presented the state respond. I may have some questions limited to what's been presented. Now, of course, that doesn't preclude uh doing uh addressing the second portion of that in whatever means is necessary to protect constitutional rights, but we're just focused on this portion right now. Understood. >> your honor. Uh, the evidence is relevant to two points. One is to uh the defendant's motive, which is not an element of the offense, but none nonetheless is powerful evidence, persuasive evidence. and two, it is relevant to the victim targeting enhancement uh which has been described and appears in the information. Um, [clears throat] the statement clarifies what what Turning Point USA, what Charlie Kirk, what Charlie Kirk's business was. And uh it it it I think as you read this um statement, it's clear that uh Charlie Kirk presented both uh religious and political uh arguments and positions in his presentations. And that that is what paragraph 3 says. um that he engaged others in tradition in debate, discussion of traditional family values, orthodox Christian views on sexuality, marriage, gender, sex, uh America's founding principles, political doctrines, and so forth. He often spoke specifically and attempted to persuade attendees to follow an a mindset rooted in orthodox, Christian, and politically conservative values. >> Excuse me, your honor. Can I lodge an objection to Mr. McBride reading the exhibit which we are discussing the admissibility of and I'd ask the court to strike his statements and admonish him. >> All right. So as it relates to reading from the actual 1102 because it's not admitted into evidence uh I I will well before I do that let me turn to you about the objection to make sure that you are heard as well. >> Yes. Uh, rule 104 requires the court to consider evidence before determining its admissibility. How can you determine whether an an exhibit is admissible without knowing what is contained in that exhibit? That's what I'm putting in front of your honor, is explaining this is why the the exhibit is admissible because it contains this language that is relevant and probitative. I don't know how I can make an argument something's relevant and probative without saying this is what the exhibit says. Well, and Mr. Novak, and I want to make sure you're I do see you have a microphone. Go ahead. >> Your honor is not a jury. Your honor can look at the exhibit and determine for itself whether it's relevant, whether it meets other criteria for admissibility. It's not necessary for Mr. McBride to read aloud in open court an exhibit which court has available to it. I'm not saying that the court shouldn't read it. I'm saying that it's not admissible. Okay. I understand that the court has two roles. One under 104 and one is the magistrate. But that doesn't require Mr. Brook McBride to read in open court the exhibit which we are discussing the admissibility of. especially where I have just expressed our concern that the exhibit has a tendency to um infuse the issues in this case and create fair trial risks for Mr. Robinson. >> All right. Thank you, Mr. Novak. Any final thoughts before I rule on this specific issue about reading from the 1102 by Mr. McBride? >> Yes, your honor. I have to be able to argue here. I have to be able to refer to the exhibits. I can't do my job as an attorney without being able to refer to the exhibits. Uh if the court doesn't want this to be in public, then we've got to close this proceeding. But I have to be able to argue the exhibits. I don't know how I can make an argument without actually pointing to the language of the exhibits. Unless I want to say, you know what I mean? Or referring to line 13. It's just so cumbersome to do, your honor. And I think my job and my duty to my client, which is the state of Utah, and and to their right to fairness, requires me to make a good and powerful argument, and that requires me to refer to the exhibit. Um, so and I'll submit it with that. >> All right. Thank you to both of you. uh in looking at this typically uh in court when evidence is being taken until it's admitted uh one doesn't it doesn't come in for example if there's a witness on the stand and one is trying to get a piece of evidence in that witness cannot read from the document and prior to it being admitted into evidence and so the court applies that same principle here however uh the difference is in noting Mr. Novak was uh drawing points from this specifically. He mentioned Matthew I believe chapter 19 um and talking about certain points in here specifically. Uh there is room for it to be uh mentioned in argument in order for the court to fully consider what's before it. What so what I'm I'm going to sustain Mr. Novak's objection and simply say uh if you want to talk about it conceptually, talk about the points, uh you you certainly may, but simply reading from it exactly saying and I understand I don't want to constrain either party from from being able to make their full argument, but quoting from it in open court uh I fear does uh risk issues to the constitutional rights of the parties. If the parties prefer to go into a closed evidentiary hearing on this issue in order to be unrestrained and it appears Mr. Novak has requested that for a second portion of his argument. We certainly can do so because I do not want to put out evidence that is not admitted uh in open court until the appropriate time until the court has gone through its uh decision-making process on whether it should be admitted or not. So to the parties I if you feel you can move forward on this first portion of it [snorts] I'm happy to entertain that argument if the parties feel at this point at this juncture that a closed evidentiary hearing is needed in order to fully explore all the issues I will leave it to the parties because I don't know your arguments and I don't want to say constrain you from saying well I don't know what you're going to say but >> I I can't read your minds and and and the court will stay in its lane to ensure that it's it's in the proper judicial role. So, uh the objection has been sustained. Uh to Mr. McBride in regards to your response, the rebuttal to the argument by Mr. Novak, what is your request? Yes, your honor. Um I do not believe it's necessary to close this hearing. I would argue against closing the hearing on the admissibility of this exhibit. However, um the court needs to rule on that ma on that issue before I launch into the fullness of my argument because I do not want to be admonished for discussing an item that I'm asking to be admitted into evidence in public. So I would ask the court to make a ruling on the closure of the argument about the admissibility of this hearing so that I can make that argument unconstrained and at after that time I will after the court rules on that I will make my full argument. >> All right. Well, what I'm trying to do is you've heard the the the reasoning of the court. I don't want to constrain you if you're saying as you stated that you want to best represent your client and every attorney should be doing that. that is your duty. I don't want if you if you feel that a closing this hearing to the public is necessary in order for you to fulfill your duty, uh the court will entertain that. But I I can't I can't have it both ways. If you want me to close the hearing in order for you to be fully uh be able to argue freely as you feel you need to, I will entertain that. But I I I don't want to say, well, I'm I'm not going to close the hearing, and then suddenly the issue is, well, I wasn't able to make a full argument. And so so do you need a closed hearing to make a full argument to best represent your client? >> I think defense council is asking to close the hearing so that the argument can be made without the public seeing it. I do not want to close the hearing. I do not believe it's necessary to close the hearing. That's not my motion. I do however want to make a full argument that requires me to rely on the evidence and and quote the evidence as I have done. That's my position. If I am not permitted to quote the evidence in my argument, then we need to decide whether or not this hearing should be closed. I would oppose closing it, but I do think it's necessary for me to quote the evidence. >> All right. Are you able to make your full argument to the best of your ability to best represent your client by simply referring to the paragraphs and to the lines so it is clear to the court what you're talking about? There's no ambiguity without quoting it verbatim in open court. Um, >> no, I don't think so. >> All right, >> your honor, if you're going to make a closure ruling, I'd like to be heard before you do. >> All right, I'll hear from you as well. If you would like to come forward again, uh, just Mr. Rhymer, just stating your full name for the record for the clarity of the record. >> Sure. Thank you, your honor. David Ryman again for the news media. Um, we have briefed this issue a couple different times so far. Sometimes there is a misconception that I think is running particularly through what Mr. Novak argued that suppression hearings because the evidence may be suppressed or excluded or in lemonade hearings need to be closed unless the evidence is deemed admissible. That is the opposite of the law that has been settled since the United States Supreme Court decided Waller versus Georgia. You can see it in Current's Tribune, which dealt with a preliminary hearing in access to a preliminary hearing where, as you know, and as we've heard repeatedly today, all kinds of evidence is presented at the preliminary hearing that may not be admissible at trial. And so the public's the universe of the public's right of access to proceedings is not limited just to what eventually gets admitted at trial. um which you know if there even even is a trial and that's been we've cited the court to you know numerous cases on this and I don't have the brief in front of me and there's a docket is huge and I can find it for you if you'd like but I just wanted to correct the misimpression that the public is not entitled to hear argument and to see evidence just because it may not be admissible. Otherwise we would never have admissibility arguments in public. Um and I do want to just I'll just make one other point. Um Currents Tribune also speaks to this and that is that uh if you are if you do decide that there's a clo and so let me just make two two quick points to the 403 point. Just because evidence isn't admissible is not a basis to close the hearing. There may be a 403 argument. I haven't seen this document. I don't know what's in it. Maybe there there is something incredibly prejuditial. You would have to make that decision. I'm at a loss. I haven't seen it. Um I'm happy to take a look at it and give you substantive argument, but it's the same high constitutional standard that you have to satisfy in order to close it. Um and then the last thing is just on the scope of any closure. Current tribune speaks and I know the court is aware of this. Um in ter if you are going to close it, it needs to be um as minimal as possible and it's my experience at least that most of the argument about things in this context can occur in open court and if you want to have you know a close session or a sidebar or however you have also done it in chambers I just ask that it be as limited as as possible. Thank you. >> Thank you. >> All right, Mr. Novak and appears like uh would you like to respond to that before and then I'll return to Mr. McBride for any final thoughts and the court will make its ruling. Well, I just wanted to um mention the Utah Supreme Court decision in state versus Archeletta 857 857 P234 um where the this state's Supreme Court reminds us that the first amendment right of access is qualified and that what needs to be um carefully judged in light of the qualified ified right of access with respect to preliminary hearing exhibits. That was the issue in state versus Archeletta is the defendant's right to a fair trial. So, we're in this slightly um twilight zone situation where council for the media is saying even if the court decides has decided that the exhibits are not going to be made available for copying and inspection and the court may decide that this exhibit is either not admissible or admissible for the court's eyes only. Um, Council for the Media is counseling that the court permit Mr. McBride to read the exhibit verbatim in open court and that basically defeats all of those principles. So, I I don't think that's the correct path. Council for the media is correct that that the court's ceiling or closure should be narrowly tailored and the 403 issue which we are prepared only to discuss um because of the the sequencing of things in this case uh in this proceeding um we're only prepared to discuss at sidebar has to do with potential future evidence that the court may receive in this hearing or it may not. So, I'm not going to to address other 403 issues uh in open court. If the court wants to defer this entire exhibit and discussion of it until later in the proceeding, then um it may be that that part of the 403 argument doesn't need to be at sidebar. And I I think we're all assuming that sidebar proceedings in this preliminary hearing are going to be part of the sealed transcript until some later point in time. In other words, it's not sidebar just for the moment. It's because the transcript's going to be sealed. So, it very well may be that taking this issue up at a later point in time in this proceeding eliminates the need from our perspective for that 403 issue to be discussed. um a sidebar or what council for the media says in a closed proceeding. However, I agree with the court that Mr. McBride can't um have his cake and eat it too if he wants to make his argument and he thinks that his argument requires that he read an exhibit in court which we in good faith are saying is not admissible um that we need to have a closed proceeding. I'm not asking for a closed proceeding. I was asking the court to caution Mr. Mr. McBride not to read into evidence exhibits that are not received into evidence because that's the same as Mr. McBride testifying. >> Anything further, Mr. McBride? >> Just a note, I have not made my full argument on admissibility. That's all. >> All right. All right. I appreciate the arguments by the parties. Uh this is clearly something that's very important to you all and is important for this case. Uh as is every piece of potential evidence. uh Mr. Novak indicated that receiving this could create confusion for future and that he mentioned that uh it could suggest to a potential jury pool that this case is about religion. However, what is happening at a preliminary hearing is far different than what happens at a jury trial. The magistrate, myself, is the factfinder. And whether something becomes admissible at trial is is far different than what is admissible at a preliminary hearing. The purposes are different. the standards are different and uh different steps need to be followed. Something could become admissible at a jury trial, but given the nature of a jury trial, more steps are necessary. Uh under rule 1102, one of the major differences is that reliable hearsay is allowed in a preliminary hearing under the Utah Constitution and under the rules of evidence 1102. that is far different than that would ha what would happen at a jury trial. Uh taking this into consideration, I I look to the information going to the very beginning whether uh this is relevant and as noted by councel looking to count one which is squarely before the court to determine probable cause at the end of this proceeding and the court is not weighing in whether it will reach that or not. It's not predetermining anything, but it what is before this court under count one, aggravated murder, which is a capital offense, victim targeting enhancement in violation of Utah code annotated 76-3-203.14 sub 2. Tyler James Robinson intentionally selected Charlie Kirk because of Tyler James Robinson belief or perception regarding Charlie Kirk's And so if that was not here, this this enhancement and it also goes to count two, felony discharge of a And I'm just reviewing. And then finally, count seven, violent offense uh where the victim targeting enhancement also is in play because that is part of the information that's squarely before the court. This becomes relevant. Now trying to determine what is political expression versus religious expression that that's that goes into different grounds but at this point the court finds it is relevant for consideration and if for the very least for argument. What the court is going to rule is that the need for a closed hearing is not been met at this point because what needs to be shown is prejudice. um or that the exhibit contains inflammatory information that would prejudice the jury pool that begins the path where we can consider closing the hearing from the public. However, that's not what's before the court nor has the court heard that and so the ruling of the court is previously I sustained Mr. Novak's uh objection and the court will expound upon that that Mr. McBride in his argument cannot read the entirety of states exhibit 5.1. Can he reference points of it and specifically quote certain points the court rules that he can? Just as Mr. Novak pulled from this and it was broad, but he quoted uh Matthew chapter 19. He stated that this came from the Bible. He talked about uh the going from paragraph one where he quoted or at least drew from about the Internal Revenue Service and the type of business. And so there is grounds for that to occur and for in order for the court to consider the argument fully and making the determination whether it is relevant and should be admissible. Therefore, the court rules that Mr. McBride can continue in his arguments in order that uh the court can can make its determination whether Thank you. 5.1 is is a general explanation of what Turning Point USA, Charlie Kirk's organization is and was on September 10th. Um the exhibit describes the events um that Turning Point USA holds um talking about at least 200 plus of these events featuring Charlie Kirk as a headline speaker had taken place by that time. That's in paragraph three that these events discussed is political issues as well as religious issues. most political issues and the the portion I previously quoted talked about um gender issues in particular, gender uh uh sexuality issues, the difference or the the Christian and political view regarding um marriage and families and gender identity and that that information is relevant to the motive that we are alleging in this case. Um, and and it's also relevant to the victim targeting enhancement, which is in part a motive a motive type enhancement. And the evidence will be introduced through or we will offer evidence through other witnesses that talks about some of uh the defendant's statements that indicate um his um uh gender persuasion and that he falls into some of these um political and gender views that Charlie Kirk uh argued against. That's that's the relevance of this statement is it shows Charlie Kirk publicly um in front of large gatherings of people uh debated and presented his views his political views which were tied to his religious views about gender identity LGBTQ rights type issues and the the relevance to that is the defendant's motive is that he was on the other side of of those views. And you will see evidence that talks about that through other witnesses that talks about that that that being um the inference and the motive that he had or the inference from that evidence uh supports that motive which supports the victim targeting enhancement and frankly motive in general which goes to identity. For that reason, your honor, this this exhibit is relevant. Um, I don't see the prejuditial uh effect, unfair prejuditial effect this would have on the factfinder. Whether or not it has, you know, some capability of prejudicing the potential jury pool, I think that's a completely different question. I don't think it does. I think I think this uh case has already um highlighted the political issues that um we're talking about here. And uh but my job here is to present this case to the court to you, your honor, for you to make a decision. This this evidence is admissible for that purpose. Whether or not it's public for the for the uh or published for the public to see is a different question which I'll submit the the media is very capably represented and I'll let them make the argument on that point. But I would ask the court to admit this exhibit. Um, for the state to argue that this exhibit says anything about Mr. Robinson's state of mind should be rejected out of hand. This exhibit does not say anything about Mr. Robinson's state of mind. And that's what motive is and that's what um the victim targeting enhancement adopted by the legislature focuses on is the defendant's perception. If Mr. Um, McBride wants to propose significant redactions to this exhibit so that your honor acting as a magistrate can consider things that are narrowly tailored to what the information alleges, which is the alle allegation is that Mr. Robinson perceived that Mr. Kirk had certain political views. That's one thing. But this document talks and and now Mr. McBride um not to be colloquial has sort of thrown down the gauntlet. This document talks about foreign affairs, political doctrines, America's founding principles, cultural trends, um, and what Mr. Engelhart refers to as Orthodox Christian views on sexuality, marriage, and gender/ sex. So this document goes way beyond what the state just flagged for the entire world is their view of Mr. Robinson's motive [snorts] which has something to do with um gender identity, gender ideology and sexuality. That's what Mr. McBride has just said this case is all about. this doctrine, this document goes way beyond that. Um, and that's why it's not it's not admissible. There may, as I said, be other evidence which Mr. McBride and the state want to rely upon which they haven't presented yet, and Mr. McBride hinted at that. So, I think that it's um it's not admissible at this point in time. Um, I don't think it's it's um relevant uh in the sense of has a tendency to make a fact of consequence more or less true. That's the definition of relevance. So how does this court go from what the state has to establish which is motive or Mr. Well, actually the state doesn't have to establish motive. Motive is not an element of the offense. But at least with respect to the victim enhancement according to the legislature, the question is what is in Mr. Robinson's state of mind. Um, the other thing I want to say is that Mr. McBride did not address the admissibility of these opinions. Now, the court talked about 11:02, but 11:02 doesn't resolve all of the other rules of evidence. It's just a gateway for an affidavit. So what we have in this document are what I think are purport to be untested expert opinions or at least lay opinions. And the question is under the rules of evidence is whether this document is helpful to the court when it makes a determination about whether Mr. Robinson perceived that Mr. Kirk had certain political views. So, where is the evidence that Mr. Robinson in this document that Mr. Robinson was aware of Mr. Kirk's political views? Where is the evidence in this document that Mr. Robinson had um disagreement with Mr. Kirk's political expression? None of that appears in this uh of that we'll have to see. But there's nothing in this document which connects up with Mr. Robinson's state of mind which is the question in the enhancement and Mr. Engelhart cannot of course express any opinion about Mr. Robinson's state of mind because he doesn't know him. Uh and because that would be improper opinion evidence under any rule of law. So for a document to be received into evidence that quotes one very narrow piece of religious doctrine and that involves Mr. Engelhart's interpretation of what that means. I mean Mr. Engelhart at the top of page two is basically telling this court what he thinks. Chapter 19 means how could that possibly be admissible in this proceeding and how could it possibly be admissible um for the purpose of this court concluding what Mr. Kirk thought chapter So it's not relevant. It's improper opinion evidence. It's definitely over broad in terms of the evidence that the state is profering to prove a very narrow point and it actually doesn't get to that point which is what was Mr. Robinson's state of mind. It also doesn't say anything that Mr. [clears throat] Kirk specifically said on September 10th that Mr. Robinson may or may not have heard or anything that Mr. Kirk said before September 10th specifically that Mr. Robinson may or may not have heard. Nor has the state presented any evidence. And as an officer of the court, I would say I don't think the state can present any evidence that Mr. Robinson specifically heard Mr. Kirk say a specific thing at a specific time. There are some um statements which I think that the state will say are admissions by Mr. Robinson, which reference Mr. Kirk, which we will get to later, but none of those reference specific statements by Mr. Robinson about specific statements by Mr. Kirk on any specific issue um that would even make a piece of of this um relevant. So, I'm pretty sure that I've reached that point where anything more I say, I'm going to be repeating myself and so I'm just going to stop unless the court has questions. >> I don't Thank you. >> Well, I do have a question as it relates to uh political expressions. Does uh religion or gender intersect with I think that's a great question, but probably not a question to be answered by me in this proceeding. That's actually a really, really complicated question that the state um wants the court to say is a simple yes. Okay. All right. Because I don't want to be the expert. I mean, the court's basically asking me to testify. I I'm I'm not trying to be flippant. The court is asking me to testify about where religion and politics intersect. And I that's a fascinating question. The question here is whether this document, the way it's presented, the way it was written under relevance and expert um 70172 rules of evidence to prove what Mr. McBride says the state what he acknowledges the state has to prove which is that Mr. Robinson had a state of mind which was, let's just say, hostile to Mr. Kirk's political expression. And I don't think that this court should be deciding based on the record before it where if at all politics and religion intersect. That's that's I mean if we want to if the court needs to resolve that issue um then the court also needs to resolve the which religious philosophy are we talking about? >> Well, Mr. Novc, I bring that up because you mentioned it and you said you cited directly to the enhancement. You said political expression and then you went to the Bible itself and so it it appeared to the court that you put it into play. So, I just wanted to get a little bit of uh guidance from your position and so that that's the reason for the question. >> No, I I totally appreciate the question. It's I I'm not suggesting, your honor, that there's a problem with the question. Any question that the court asks is a question that council should take seriously. The legislature separates in the statute religion and political expression. The state selected the victim targeting enhancement uh based on political expression only. Now the state wants to bring I didn't bring Matthew in. The state is bringing Matthew in through Mr. Englehart. >> Sure. >> I didn't bring the Bible to this courtroom. The state brought it. And that concerns me greatly because the state is turning this into a question of um whether Mr. Robinson's um views, identity, life are anti-Christian. And that's a huge problem. And the state has created that problem. And this hearing is being broadcast to the entire jury pool. And that's what Mr. McBride just did is he turned this case into whether Mr. Robinson's life is inconsistent with what Mr. Engelhart calls orthodox Christian views. I'm going to just stop right here because I think the court knows what the problem is. >> Thank you. All right. Anything further before the court makes its ruling? I appreciate the in-depth argument and the uh passion uh behind the argument you are advocating for your clients and I respect that. >> Yeah, your honor, I just say it provides context for the defendant's state of mind. >> All right, that's all. >> All right. In making this determination whether it's admissible or not, I'm going to start at the beginning, which is this. This is a preliminary hearing. The purpose is to determine whether the state has established probable cause to believe a crime was committed and that uh Mr. Robinson committed it as it relates to this case. As I turn to relevance, I turn to the information as previously stated and is this relevant what is before me and without indicating my decision on probable cause because I am not at that point. I'm withholding all decision-m until all evidence is properly before me. And so in this ruling, it is not indicating either direction that the court is heading. However, the court finds that it is relevant as it relates to the victim targeting enhancement uh as it relates to Charlie Kirk's political expression and the court recognizes the argument made by defense uh in regards to state of mind. And it is because of both arguments uh that the court finds that the well the court is ruling that it is provisionally admitted and at such point when it becomes relevant uh based off what uh Mr. Novak has talked about about Mr. Kirk's I'm sorry Mr. Robinson's state of mind about Mr. Kirk's political uh beliefs uh then at that point whether it is admitted or not into evidence will be decided upon. So as of right now it is provisionally admitted. uh because of that stance, it will not be published to the courtroom or media, but both parties can weigh in on that when this is brought up again and the request for it to be uh fully admitted uh is made by either party. uh then the court will re-examine whether it should be published at that time to those in the courtroom and to whether that is um displayed uh or or filmed by the camera. All right, let us proceed. Well, let us proceed to lunch because it is now 12:40. Uh it seems like a natural place to stop. I believe everyone looks um like they need a lunch break. So, let's go ahead and break for lunch. Uh, let's go come back at uh let's come back at 1:15. Well, let's see. No, I'm g I need to give you a full lunch here. I need to do my lawyer math and see what uh that would bring us to. So, it's 12:40. Uh, let's come back at 1:45 for lunch. All right. Uh, any party need the benefit of the record before we break for lunch? >> Not from the state. >> No, your honor. >> All right. Court is in recess until 1:45. Court is now in session. Noting the presence of all council and all parties. All right, Mr. McBride, turning to the state. >> Yes, your honor. Um, just by way of preview, um, we are going to call, uh, Jen Faina, um, sergeant with the FBI. But, um, how we're going to proceed is we're going to call her for a very limited purpose. We're going to pause her testimony. Defense is not going to cross at that time, and we're going to call uh, an FBI DNA analyst out of order. It's a defense witness, but that's to accommodate that witness's schedule. our destiny now before the court will be the truth and no truth and nothing but the truth. So help me God. >> Yes. All right. After you're situated, there should be a bottle of water to your left, maybe behind the monitor. And if you wouldn't mind just bringing that microphone just a little bit closer to you so it picks up uh your voice for the recording. Mr. McBride, your witness. >> Will you please state your name? >> Yes. Jennifer Famina. >> Where do you work? I work for the Utah Department of Public Safety. >> What position do you hold there? >> I am currently a sergeant within the State Bureau of Investigation. >> What was your assignment? Um, September 10th, 2025. >> I was assigned to oversee the crime scenes as well as the physical evidence. >> And were you sergeant with uh the State Bureau of Investigation at that time as well? >> Yes. >> And uh do you have any kind of specialty in your assignment there? >> Yes, I do. Um I am currently overseeing or I am the team lead over our evidence response team within our division. Um that includes not only conducting training but also attending training and whatnot. >> Okay. So if we hear ERT, it means evidence response team. >> Yes. >> Were you called to uh the crime scene at Utah Valley University on September 10th of 2025? >> Yes, I was. And were there multiple scenes that you oversaw or helped to process? >> Yes. >> We've had some testimony about um the rooftop of the Low Sea Center. Did you oversee the or are you aware of uh evidence that was collected in that area? >> Yes, I am. >> Was there a screwdriver that was collected from that rooftop? >> Yes. >> And do you know uh how that was collected and what happened to that screwdriver? Yes, that was collected by the Utah Bureau of Forensic Services Crime Scene Response Team or also known as our state crime lab. >> And do you know what happened to that? >> Yes, it was packaged and then um that evening there was discussion on who would take custody of the evidence and I was there along with FBI. Then it was decided that FBI would take custody. >> And did that evidence actually go to the FBI? >> Yes, it did. >> And was it sent for testing? >> Yes, it was. >> Where was it sent? It was sent back to their I guess their equivalent of our crime lab. >> Okay. Um, were there other crime Are there other areas there at Utah Valley University that were also processed for the presence of evidence? >> Yes, there was. >> Is there a wooded area that's northeast of campus? >> Yes. >> Uh, what was found in that wooded area? Well, >> it was found there was a long gun that was wrapped in a dark colored towel. And you say a long gun. What is a long What does that mean? A long gun. >> Sorry. Um that would be a rifle. So for uh to be more specific, it was a Mouser 98 rifle. >> Do you know what caliber that was? >> It was a rubber drove headed to a 300 6 barrel. >> And do you know what kind of action that had? Was that a semi-automatic, automatic, bolt? It >> was a bolt action. >> What is a boltaction rifle? Uh, basic. Um, I'm not too familiar with guns, but I just know there's a bolt and you have to pull it back. >> Okay. Um, and what was done with that with that weapon and that towel? >> That was documented in place and then eventually u pictures were taken in place and then afterwards we rendered that gun safe and then packaged the gun as well as the towel. >> What was done with the towel after it was packaged? Uh the towel was also provided to the FBI >> and uh those two items. Well, let me tie up that thread. The gun, what was done with the gun? >> The gun was packaged. Um it was taken to FBI custody. Then eventually it was provided to the ATF lab. >> Okay. So the gun went to the ATF lab. >> Is that correct? >> Yes. >> The towel went to the FBI lab. >> Yes. And the screwdriver went to the FBI lab. >> Yes. >> Did you receive reports back from testing that had been done on those items? >> Yes, I did. I think that's connected to a defense computer right now. Is there any way to Okay, I'm showing you here on the screen um states exhibit 31. Do you recognize that? >> Yes, I do. >> What is that? >> This is the FBI report that was provided to me by the FBI that documents DNA testing. >> And does that include testing that was uh done on the screwdriver that we've spoken about and the towel that we have spoken about? >> Yes, it does. >> Okay. Uh, what I'd like you to do, um, Kimberly, if you'd please just scroll down so that Sergeant Famina can observe Can you see who that report is signed by? >> Yes. >> Who's that? >> Amanda Baker, I'm assuming is how you pronounce your last name. >> Is that in fact the report that you received documenting the testing results on these items and some other items from the FBI? >> Sorry. Yes. >> And does it appear to be in an accurate condition as to how you received it? >> Yes. I'd move the admission of states exhibit 31 >> defense. >> No additional objections. >> All right. So I'll note the standing objection and and as it relates to admission, what is your request as to publication? >> Um I'd move this admission and this publication both to the court and to the public. >> All right. Anything further, Mr. B? >> No. >> All right. The court will admit uh states exhibit 31 into evidence and uh allow publication of this exhibit to the gallery and to the monitor on screen in the courtroom uh and for uh the camera to broadcast. Okay. Okay. If you'll go to uh Kimberly, if you'll scroll down to see on page one where the screen will show items seven and eight. [clears throat] Sergeant Felmina, do you see the lines that there that say item seven? That line. >> Yes. >> And will you uh read that portion of the report that describes what item 7 is? >> Item seven towel from around Mouser rifle serial number 8863. And there's also other some other identification numbers. Is that the towel that you found with the rifle that day? >> Yes, it is. >> On September 10th? >> Yes. >> Item eight. Will you read what that says is a description of item eight? >> Item eight, screwdriver from perch. >> And is that the screwdriver that you described that was collected from the rooftop? >> Yes. >> Okay. If we can go to page three of six please. Will you item seven sub one will you please read the result there um uh from the title item seven um until the word contributors. Not sure it assists the court to be having read from the report that's already >> and uh would you mind repeat that but with the microphone? I want to make sure >> All right. Either way, if you want to come up, that's fine. Mr. B. Judge, the objection is that uh her reading to the court what's in the report is cumulative. Since we have the analysts here who will be testifying to what the report says and what it means. So you've got the report and evidence. We don't need this witnesses reading the report to the court. So it's a 403 cumulative objection. >> Mr. McBride, do you wish to respond? My point is only to draw your attention, your honor, um to the relevant results that will be discussed by the other expert as well as the the results of the items we've discussed. The right the towel and the screwdriver. That's all. >> All right. The court will overrule the objection and allow a brief uh overview of it, not going line by line, page by page. So, if it is brief, I'll allow that. >> Thank you. So, if you'll read um item 71 to the word contributors at the top of that page, if you will. >> Yes. Male DNA was obtained from item 7 sub one. Item seven sub one was interpreted as originating from two two individuals, one of whom is Twigs. The DNA results from item 7 sub one and are 1.7 octillion times more likely if Twigs and T. Robinson are contributors than if Twigs and an unknown unrelated person are contributors. >> Thank you. Let's skip down to item 81. Do you see that bolded and underlined uh line there? >> Yes. >> And this is uh relating to swabs of the handle area of the screwdriver. >> Is that right? >> Yes. >> Will you read um those same two paragraphs there? Male DNA ending with contributors. Male DNA was obtained from item 8 sub1. Item 8 sub1 was interpreted as originating from two individuals, one of whom is Twigs. The DNA results from item 8 sub1 are 30 quintilion times more likely if Twigs and T. Robinson are contributors than if Twigs and an unknown unrelated person are contributors. >> Okay. Thank you. Uh, a couple of foundational questions before we finish for now. Um, first off, do you know who Twigs is? Yes. >> Who is Twigs? >> Twigs is Lance Twigs. He was a roommate of Mr. Tyler Robinson. >> And uh do you know if uh Lance Twigs's DNA was obtained uh for the for comparison in this test? >> Yes, it was. >> And how was that DNA obtained? >> It was obtained by law enforcement officers. >> And was that by a buckle swab? >> Yes. >> What is a buckle swab? A buckle swab is basically like a Q-tip or a swab that we'll just place in someone's mouth and just scrub the inside of their mouth to obtain the cells. >> And then that that Q-tip is then packaged and sent to the lab for testing and comparison. >> Yes. >> And was the defendant Tyler Robinson's DNA also collected in the same manner? >> Yes, it was. >> Okay. Thank you. Nothing else. All right, Mr. Burke. Cross-examination. I'd like to reserve the right to cross examin after complete sir testimony after the following. >> Oh, would you mind grabbing the microphone? I just want to make sure >> With the court's permission, I'd like to reserve the right to cross-examine on the area she testified about until she's completed their testimony. >> Okay. I didn't So, okay. I see what you're saying. Uh, any input, Mr. McBride, >> your honor, that's what we expected to happen. We discussed this beforehand. We stipulate. >> All right. Uh, that's fine. And so, should I have uh the sergeant step down or >> Yes. >> Okay. Sergeant, if you'd like to step down, you're still under oath and so please don't discuss your testimony with anyone. And uh is she being asked to exit the courtroom or what's the request of the part? >> Yes, to exit the courtroom at this time. >> All right, agent, if you wouldn't mind exiting the courtroom and then we'll come get you when we're ready for you. All right. All right, Mr. Bert, turning to you, >> your honor. Out of order, the defense would be calling uh Amanda Baker. All right, Mr. Speaker, if you wouldn't mind coming forward uh right up here by You do solemnly swear that the testimony you shall give in the case now penny before the court will be the truth, the whole truth, and nothing but the truth. So help you God. >> Yes, I do. >> All right, Mr. Speaker, if you wouldn't mind being seated at the witness, stand once you're situated. There should be a water bottle for you if you'd like behind the monitor. And after you're seated, if you wouldn't mind just pulling that microphone close to you so it picks up uh your voice. Okay. >> Okay. >> Mr. B, your witness. >> Governor, we're going to need the monitor switched over to our um side if we can. [clears throat] >> While we're doing that, good afternoon. >> Good afternoon. >> Tell us your name, please. >> Hi. Good afternoon. My name is Amanda Baker. My last name is spelled B A K E R. >> And Miss Baker, what do you do for a living? >> I am a forensic examiner in the DNA casework unit of the FBI laboratory located in Quanico, Virginia. And how long have you been a DNA analyst at that location? >> A little more than 10 years. >> And just in general, what are your duties? >> My duties are to manage a case. When a case comes into DNA casework unit, I will review any information associated with that case. I will review any evidence that is submitted for that case, determine which items of evidence need to be tested and which tests need to be performed. I will then create something called an exam plan. You can think of this like a a to-do list to let the biologist know which items I need tested. [snorts] Once that testing is complete, I will review all the data, uh draw conclusions in the form of a report, and then testify if needed. >> Miss Baker, in this case, were you requested by the state of Utah to do certain testing? >> Yes, I was. >> And when were you called upon to do that testing? Uh that was September of 2025. >> And do you recall when the case first came into your lab? >> Uh I believe we received evidence the first time was September 11th of 2025. >> And just in general, when the FBI, your unit receives uh evidence for analysis, is it true that the turnaround time is about 200 days? >> Uh it depends. Um, we've wavered between 90 days and over 200 days. I would say on average it's somewhere between 180 and 200 days. >> However, did this case come in on what's called a priority one uh level? >> Yes, it did. And what that means is we worked um 24 hours a day, seven days a week until examinations were complete. >> And is it true that you were still you were conducting the analysis as the evidence was being inventoried? >> That is true. Uh because of the high-profile nature of this case, an item of evidence would be submitted to the lab. It would be inventoried by our evidence management group and then sent to the various units for testing. For example, the DNA casework unit. We would begin testing as additional evidence was being delivered to the FBI lab. >> Now, as a result of your analysis, do you produce u case files? >> Yes, I do. >> And document your examination in other ways? >> Yes. Do you have your case file with you? >> Yes, I do. >> Okay. And uh in your case file, are there notes of conversations that you have with people that are relevant to your testing? >> Yes, that's called our communication log. >> Now, um do you have your case file there in front of you? >> Yes, I do. >> I think the pages are numbered. So, I'll ask you to go to page 22 >> Okay. >> And if I could direct your attention to the bottom of that page, there is a communication log entry dated September 13th. Do you see what I'm referring to? >> Yes, I do. And would you read to the court what your entry is for that date? >> Yes. This is my communication date. Excuse me. Communication entry on September 13th, 2025. All spoke with FBI special agent Fulgar and Utah SBISA Dave Hall gave technically reviewed results that Robinson was included as a possible contributor to the DNA from the tow and the screwdriver. We discussed the additional examinations conducted by DCU and they both agreed that no additional immediate comparisons are needed at this time. All remaining comparisons will be in the laboratory report. >> Is that an accurate reflection of what you told the agents at that time? >> Yes, it is. >> And you told them that quote Robinson was included as a possible contributor to the DNA from the tell and the screwdriver. Correct? >> Yes. Was the language that you used in conformity with requirements that you have for reporting out test results? >> Yes. >> All right. I'd now like to direct your states exhibit 31 which is in evidence. I think it's our and that's in evidence. So, if you could >> And Mr. Bird, are you requesting it to be displayed to just your screens or to all screens? >> No, since it's an evidence, I'd like it displayed um to the public. >> Okay, let's go ahead and uh put it on This is your report dated September 15th, 2025. Correct. >> Yes, that is correct. >> So, this is two days after you had the conversation with the agents as to what your results were. >> That is correct. Yes. And in your report that you wrote two days later, you included this language that's highlighted there. Correct. >> That is correct. >> This report conforms to the Department of Justice uniform language for testimony and reports for forensic DNA examinations. >> Correct? >> Yes. >> Okay. Now, I'd like you uh if you could to take a look at that standard that you referenced and then I >> and this will be just to the witness, not to the public. >> Okay. >> You see that? See that on your screen? >> Yes, I do. Do you recognize this document? >> Yes, I do. >> And tell the court what this is. >> This uh document is the approved standards for scientific testimony and reports for autoomal DNA testing. >> And is this the the document that you were referencing in your report? >> One of them. Yes. >> And is it a true and accurate statement of what the policy of the FBI is in regard to reporting DNA in a case of this type? >> Yes. I I move that document into evidence earlier. >> So is it just this page or all the pages because it says one of six? >> Yes. So this would be the entire document. >> I I don't see the relevance of this of this document. I object on relevance grounds. >> Mr. Bert. Governor, the document is referenced in her report and it defines the uh parameters of what her opinion means. So I think it's very important for the court to understand the limitations of of the opinions being expressed. >> And just for my understanding, when you say in her report, are you referring to states exhibit 31? >> That's correct. >> All right, Mr. McBride, any further thoughts? >> No, I'll submit it. >> All right. So states exhibit Well, I'm sorry. How am I labeling this exhibit for them defense? >> Your honor, we have our exhibits organized by uh witness and we will would be submitting to the court electronic copies of these under um named witnesses. So this would be Baker 7. >> All right. Defense exhibit Baker 7 is admitted into evidence and as it relates to publication, what is your request, Mr. Berts? Your honor, uh I would ask that this be published since the report is published and u this is important to understanding the limitations of the report >> and so published in the courtroom and on the monitor for the media. >> Yes. >> Correct. >> Uh any thoughts, Mr. McBride? >> No objection. >> All right. It will be admitted and published both in the courtroom and on Okay. So, this document has various subjects. Correct. >> That is correct. Yes. >> And it in the beginning tells you how to uh frame your testimony in terms of inclusions or exclusions, mixtures, sex determination, etc. >> Correct. Yes. And then there's a section called statements not approved for FBI autotosomal DNA testimony in our laboratory reports. >> That is correct. Yes. >> Okay. So if we could go to page five for that statement. Okay. Under the topic absolute identification, is it the policy of the FBI when you're reporting out results that an examiner may not state or imply that a match provides an absolute identification of the individual from whom the biological material originated? >> That is correct. And you were following that policy in this case when you told the investigators that this was a possible match. Correct. >> That is correct. Yes. >> You never said it was an absolute identification of Mr. Robinson, did you? >> Correct. No, I did not. Now the second uh guidance under that policy is an examiner shall not 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 or applicable law. You're not in your report did not use any conclus any language that suggested you were giving an opinion to a reasonable degree of scientific certainty. >> That is correct. It was not >> okay. Um and then the next one and not that one. One more down. Not going to talk about race ethnicity. That doesn't apply to this case. Right. But 5.4 Four says, "An examiner may not state or imply that forensic autotosomal DNA examinations have a zero error rate or are infallible." >> That is correct. >> And you followed that policy in this case, correct? >> Yes, I did. >> You're not in your report stating to the court that your testing has a zero error rate. Correct. >> Correct. >> You're not saying that the test is infallible. >> I am not. No. What is the source of error rates in DNA testing? >> Take that down. >> Can you clarify your question? >> Yeah. When it refers to don't state that there is a zero error rate, what in general are the sources of error in DNA in the kind of DNA testing that you do? >> Anything else? um not that I can think of off the top of my head. One of the big things is potential human error. Um I guess you could also associate um the DNA testing itself in how items are collected or how uh those items are tested. Now, to your knowledge, that policy statement that we just read in exhibit 7, Baker 7, was based on a more general Department of Justice policy. Correct. >> Correct. Yes. >> And that policy is called the Department of Justice uniform language for testimony and reports for forensic autotosomal [clears throat] DNA examinations using probabilistic genotyping systems. Correct. >> That is correct. Yes. And could you display eight for us please to the witness? >> Let me know when it's up. >> No, not on the big screen. >> Okay. So, not to go on to this main big screen. >> Correct. This is just for the witness. >> And you're familiar with that policy, correct? >> Yes, I am. Okay. Um, [clears throat] and does it contain a statement that support for inclusion is an examiner's conclusion that there is evidentiary support for the inclusion of a known individual as a possible contributor to the DNA typing results obtained from an evidentiary sample. >> I believe it does. Yes. And did you follow that procedure in this case? >> Yes, I did. >> All right. Uh, does this same policy state Uh, An examiner does a policy state, an examiner shall not assert that a likelihood ratio of any magnitude provides an absolute identification or source attribution of an individual to an evidentiary sample. >> That is correct. Yes, it does state that. >> And you followed that procedure in this case, did you not? >> Yes, I did. You're not implying that those numbers that a previous witness quoted and are stated in your report provides an absolute identification of Mr. Robinson or Mr. Twigs. >> No, I'm not. Now, are you also familiar with a concept called formal activity level? >> Yes, I am. >> Tell the court what that is. Uh formal activity level is determining an activity that causes a DNA causes DNA uh to be left behind on an object. >> And does your laboratory have a policy about whether you can express opinions about formal activity level? >> We do have a policy and I cannot give um an opinion as far as activity level goes. >> And why is that? Um that is because um DNA can be left behind on an object for numerous different reasons. Um so just because DNA is on an item doesn't necessarily mean that an individual touched it or utilized that item. Um so because of that we do not opine on what activity may have occurred. >> And consistent with that policy you cannot tell if you interpret a piece of DNA as being present on an item. You can't tell when that DNA was deposited. Correct. >> Uh I can't give an exact time. Um but there are some situations, you know, if a piece of evidence has been buried for a long time or um is in a river for a long time, it would be my expectation based on my experience that I probably won't get DNA off of an item that's been buried for 10 years, for example. Um however, I cannot give exact timing as to when DNA was deposited on an item. And I was talking more about a situation where you actually find DNA on an object, be it a gun or anything else. You can't say when that DNA was deposited. Correct. >> Sure. That's correct. >> Um, and how long in general does DNA persist on an item once it's you've made contact? How how does DNA get deposited on an item in general? >> Uh, in general, DNA can be deposited a few different ways. um via body fluid such as saliva or blood um or skin cells. So touching an item or wearing an item, DNA could be deposited. Um [snorts and clears throat] once DNA is on an item, if it's subjected to ideal conditions, it's out of heat and high UV, um it's not subjected to any kind of cleaning or chemicals, it can persist on an item um rather indefinitely. It can degrade slowly over time. Um but we've certainly worked items of evidence that are 40 and 50 years old and we've been able to recover DNA. >> Now um could you explain to the court the concept of degradation of DNA samples? What that means and what it suggests with your testing? >> Sure. So degradation of DNA is breaking up the DNA. So if you think of DNA like a long rope, it's essentially taking that rope and cutting it up into pieces. um degradation. Seeing degradation in a sample could lend me to believe that there may be um that that sample may have been subjected to cleaning or high heat um an extended period of time. So I really I can't tell why an item is degraded, but looking at my data, I can tell if that sample is potentially degraded or broken down. And uh two of the items that you examined were referred to as items seven and eight. Correct. >> That is correct. Yes. >> One was a towel and one was a screwdriver. >> That is correct. Yes. >> Uh were both those samples degraded >> to a certain extent? >> Um may I refer to my So item eight was the screwdriver from the perch. Um I would say that there was some degradation as I look at the the DNA peaks or the DNA data. Um, in an ideal world, if there's no degradation, I would expect all the peaks to be at the same height. Here, I see a ski slope type effect, meaning that the data on the left is a little bit taller than the item seven was the towel. Um there was a slight amount of degradation but not as much as item 8. >> Okay. And what is the effect of degradation on production of the alil? First of all, what's an alil? >> An alil is an individual's DNA type. So we inherit half of our DNA from our mom and half of our DNA from our dad. We're looking at something called short tandem repeats or STRs. These are small segments of DNA that repeat themselves over and over again. We all have those same sections of DNA, but what might differ amongst us is how many times it repeats. And that's actually what we inherit from our parents. Um, so for example, at one particular location, my mom may give me 14 repeats and my dad may give me 15. So when I'm looking at the DNA types, I would say that I have two alals at that location, a 14 and a 15. As far as degradation goes, it could cause some of those alals to do something called drop out. Meaning when I'm looking at the DNA chart or the DNA data, I do not see information. I do not obtain numbers at that particular section of DNA. And is it true that in the testing that you were doing in this case, STR testing, what you were looking at is the length of the what I'll call, have you ever heard the box car analogy? >> I have. Yes. >> Tell the court what that is. >> So the box car analogy is how many times that section of DNA repeats. Um, so that section is essentially letters. So for example, ACG. So you may have ACTG repeated 10 times or 12 times. Each of those um sections of HCTG would be considered one box car. >> And so when you're looking for alals, you're essentially counting the box cars. Could be seven box cars and that that person would be a seven. >> That is correct. Yes. >> And from the mom and from the dad, he may have inherited 10 box cars. >> That is correct. Yes. And so that person at that particular location would be a 710. >> Yes. >> And what you're doing in your testing is comparing those numbers to what you get from a known sample to see if they match. >> That is correct. Yes. >> Is that true? >> Yes. >> Now is it true that what you're me you mentioned the ACT and G correct? >> Correct. Yes. >> Is it true that you are not measuring the sequence within the box cars? You're just measuring the length of the box cars. >> That is correct. So, the sequence would be um equivalent to letters in a word. What I'm looking at is the number of words versus the letters that make up that word. >> And we'll talk about this a little later, but people can vary not only in the length of the box cars, but in the sequence within the box cars. Right. >> That is correct. Yes. >> And [snorts] what your testing looks at is just the length. >> Correct. Yes. >> Okay. Now for the and is it also true that you're looking across many different locations? Yes. So at the FBI laboratory uh we use a kit called global filer and this is looking at 21 different locations on a human's DNA in addition to three sex determining locations that lets me know if an individual is biologically a male or a female. Um, as between two individuals, 99% of their DA DNA is exactly the same. Right. >> That is correct. Um, and that makes sense. We're all humans. We all have arms, legs, and a head. Less than 1% of our DNA is what different it differs amongst us with the exception of identical twins. >> Uh, but with the one within that 1%, you're looking at these length differences. Correct. >> Correct. Yes. >> And you're looking at what you called short tandem repeats. >> Yes. How many? You said you looked at 25 locations. >> We're looking at 21 um and three sex determining. So 24 total. >> What are the sex determining? Uh they're called the locust. Correct. >> Correct. So locus is that individual section of DNA. >> Right. [snorts] And they typically have names or numbers associated with them. Correct. >> Yes, they do. >> So what are the sex determining lossi? Uh so there is amallogenine um and that lets me know um if an individual [clears throat] is male or female and then there's two specific male um sex determining locations. One is Yindel and one is Dys 385. Those just let me know that those are specific to male individuals. >> Okay. And then for the other lo locations you're looking at uh those you're just looking for two types at each location. Correct. Correct. Yes. >> Okay. [snorts] Now, for the samples that you looked at, the seven A and the 8A, did you get a full what's called a full profile? Would be a profile where you have all 23 locations present. >> Um that is correct. So, a full profile means I have uh DNA at every single location. um it is above our threshold and I'm seeing one or two pieces of information at each location. Uh for item seven, I did develop an uh a full profile. >> For item eight, you developed a full profile. >> Item eight was a partial profile. So I did not uh develop DNA at every single location. Okay. So, what that means in your comparisons is you have certain information in the question sample that for whatever reason doesn't appear. Correct. >> Correct. Yes. >> So, you can't make a comparison at those locations. >> That is correct. >> All right. [snorts] What makes it uh not appear at certain locations? >> Um, so it could be that there's degradation. Um, so those uh larger locations could be broken up so that it wasn't detected during the DNA process. Um, it could be a low-level amount of cellular material to begin with. Um, so if I only have a few cells, I may not have enough to detect at every single location. >> Okay. And for the 81 sample, did you measure Mr. Robinson and Mr. Twigs's uh DNA at the 23 locations. >> For item eight, um I did not have a full profile. So I did not have data at all 23 locations to compare to either Mr. Robinson or Mr. Twigs. >> Right. [snorts] But you had full profiles for Mr. Twigs and for Mr. Robinson, right? >> For their known sample. >> Yes. >> Yes. So for their known sample um that was a sample that was taken directly from those individuals and I did develop a full DNA profile. >> Okay. And just to illustrate how this works um [clears throat] is one of the lowi that you looked at called the Dys 391 loi? >> Yes it is. >> And what type was Mr. Robinson at that at that location. Mr. Robinson was an 11 >> and I think you said you inherit one from your mother and one from your father but when you say he's an 11 technically he's what's called an 1111 correct? Uh so for this so DY 391 is actually that male um location. So he would not have or anybody would not have inherited anything from their mother. Um so at this location I would only expect to see one piece of information and I did see an 11 here. >> Okay. [snorts] And for the D3S uh LOSI what was his type? >> His type was a 17. >> Now for that LOSI you'd expect two types. Correct. That is correct. >> And when you say he's a 17, do you mean he's actually a 1717? >> That is correct. He inherited 17 repeats of that location from mom and 17 from dad. >> Other locations, for instance, the VWA, he's type 18/19. Correct. >> That is correct. Yes. >> So, you're looking at those and and what the machine produces are peaks. Correct. >> Correct. Yes. They're just spikes on a graph similar to like uh spikes on a heart monitor. And you said for 8A you had certain uh locations where the test sample didn't have any results. >> That is correct. >> So at the Tox location, Mr. Robinson is a type 89. Correct. >> That is correct. >> Mr. Twigs is a type 811. >> That is correct. But when you looked at the sample ADA, it didn't have any of those types. >> That is correct. So I could not compare at that location. >> Now, are there certain rules for when you exclude someone? In other words, when you're comparing two samples, uh are there rules which say here's here's where I would conclude that he could not possibly have contributed this sample? >> Yes. >> Your field has a lot of literature written about it. Correct. >> That is correct. Yes. And do you generally like to keep up with that literature? >> I do. Yes. >> Uh and across time there have been several books, publications that attempt to educate you and courts and lawyers on the tech technical aspects of DNA testing. Right. >> Correct. Yes. >> One of the books, the early one, DNA technology and forensic science by the National Research Council. >> I'm familiar with that. Yes. That's an authoritative book that was really one of the first books on DNA testing. >> Yes. >> All right. And then by the same organization, National Resource Council, The Evaluation of Forensic DNA Evidence, >> correct? Yes. >> Published in 1996. Are you familiar with that as well? >> Yes, I am. >> And then there's an author, I believe, who did his research work at the FBI, uh, named Dr. John Butler. >> Yes, I'm familiar with him. >> And you have studied his work both in your training uh and your continuing education. >> That is correct. Yes. >> And he's got three current textbooks on the topic that we're talking about. Right. >> I'm not familiar with how many textbooks he has. I know at least the one. >> Fundamentals of forensic DNA typing. >> Yes. >> Familiar with that. Forensic DNA typing methodology. >> Yes, I'm familiar with that one as well. >> And forensic DNA typing interpretation. >> Yes. >> Everybody in your field relies on these publications uh and you use them as teaching tools. >> Yes, I would agree with that. >> And then in addition to those books, there have been studies that have been done on particular topics. Correct. >> Yes. >> This case we're dealing with mixtures. Correct. >> Yes. And mixtures present certain challenges that are not present when the samples are not mixed. Correct? >> Uh not necessarily. Uh so first to define a mixture that simply means DNA from more than one individual in a sample. Um so if I were to take a a sip from a coffee cup and my husband were to also take a sip, if I were to swab that coffee cup, I would get a mixture, his DNA and my DNA together. As far as it being difficult, um you can have some mixtures where there's one contributor that donates a lot of DNA and the second contribut contributor donates a little bit. Um for DNA interpretation, that is not challenging for me. Where it can become challenging is if you have four or five individuals within that sample all donating roughly around the same amount, it may be challenging for me to determine if a person is included or not. And would you also agree that that um challenge exists in situations where you have what are called low quantities of DNA. >> Again, that that could be possible. So I could have low quantities of multiple individuals. Um which is simply just saying that I I can't determine which piece of DNA goes with which individual. So that's possible. >> What is drop in? Drop in is where you have environmental DNA that's not inherent to that sample that's detected during our DNA process. Um DNA testing is very sensitive. Um so it could be that we have a peak that's detected um like I said from the environment >> and what is dropout? >> Dropout is when you have an alil that is not detected or a piece of DNA information that is not detected. So in uh the DNA chart there is no number associated with that particular location >> and and degradation can cause dropout. >> Yes. >> So if you have a person at a particular location that is a type 1415 and because of degradation that 15 drops out. What you're seeing on your chart is just the 14. Right? >> That is possible. Yes. >> And that presents a certain challenge does it not? Because if the 15 is not there, you could misinterpret that as a type 1414. Correct. >> Uh not necessarily. Uh so we have thresholds. We have something called the stochastic threshold. If that 14 is above that stochastic threshold, I'm confident based on our validation, our testing, and my training that I only uh the DNA type there is only a 14. If that 14 falls below that th stoastic threshold that could be indication that there is another peak. Um so when I'm interpreting when I'm comparing if that 14 is below threshold and someone is a 1415 I will not automatically exclude them. >> What is stochastic effects? >> Stochastic effects. >> I'm going to object at this point. I think we've gone beyond the scope of uh preliminary hearing. I think this is getting into 702 material that's not necessary for the probable cause determination. >> All right. >> I think it Mr. Bert >> I think it goes directly to the reliability of the testing results that the state introduced. I think the court has to understand the limitations and potential sources of error uh in order to assess whether these results are reliable. And in regards to this line of questioning, how far are you going to go on this line of questioning? >> I have this one question and I'm moving on. >> All right, Mr. McBride, >> I'll hold them to that. >> All right. Well, Mr. Bert, uh, so the objection is overruled. You may proceed with that question. >> You can answer. >> Could you repeat your question, please? >> Tell the court about stochastic effects. >> Stochastic effects. when you have low-level samples during the DNA copying process um based on how the DNA is copied, you could have um uh alals that are um copied better than other alals. >> Okay. Now, on another topic, um I mentioned studies before. One of the studies that you're familiar with is called the uh PCAST report. Are you familiar with that report? >> Yes, I am. and uh tell the court what that is. >> PCAST report is PACAST stands for the President's Council of Adviserss on Science and Technology and this was a committee that was found I believe under the Obama administration that gave guidance on different areas of forensics >> uh including how to deal with mixed samples and how to deal with samples that have uh low quantity of DNA. I I don't know that I would agree that it's how to deal with them. They gave um uh some of their concerns on low-level samples and mixtures, >> right? Um and they also did a follow-up report to assess whether using the kind of software that you used in this case had been established as reliable. Correct. >> That is correct. And what was the software that you used in this case to reach your um statistical results? >> The software is called Stararmmix ST RM IIX >> and the Pass report specifically addresses whether reliable re reliability has been established with respect to StarMix. Correct. >> I I don't believe uh rei excuse me reliability came into question. Um, I think PCAST thought that there needed to be additional testing as far as mixtures and low-level samples go. >> Mixtures and low-level samples that had certain characteristics, right? >> That is correct. Yes. >> Um, including mixtures where the what's called the minor contributor was in the sample below 20%. >> That is correct. So, the minor contributor would be an individual that donated less DNA to that sample. Um so PCAST um called into question mixtures of three or more individuals with that minor or that low-level contributor [snorts] >> Seven and eight samples in this case were both mixtures. Correct. >> Yes, that is correct. >> And did you determine what the proportion of mixture was between what I'll call the major contributor and the minor contributor? >> So I did not calculate that personally. part of the Starmix software. Um, it does a couple different things. One, it takes a mixture and it uses math and biological modeling to try to break that mixture into its individual contributors. Um, and then it also calculates the likelihood ratio, which is the statistic that I report. During that process, it does give an estimate of the breakdown of those potential contributors. And what was first of all for the seven sample was the minor in there at less than 20%. According to StarMix, [snorts] yes, it was uh for one of the runs when I compared to Mr. Robinson conditioning on Mr. Twigs, it was a 5% to 95%. for item 8, one of the contributors was 11% and the other was approximately 89%. >> So >> correct. Yes. and the concern expressed in this report which was written by experts in your field. Correct. >> Uh no that is not correct. The PCAS report was written by individuals that were not practitioners um or any type of laboratory personnel. >> Right. But they list the experts who provided input into that report, do they not? >> Yes, they did. >> One of them was Bruce Bedolei. >> Correct. >> Correct. Yes. >> Who's Bruce Bidley? Uh he is a a DNA expert within the field. >> Well, he was the head of your unit for a number of years before you came on board, wasn't he? >> He was. Yes. >> Um and he's written extensively on forensic DNA testing, has he not? >> He has. Yes. >> Uh the report also lists Eric Gilkerson, correct? >> Uh that name does not I do not recall that name. >> Forensic Examiner for the Federal Bureau of Investigation Laboratory. I don't recognize that name. >> How about uh Bruce McFick or forensic examiner, Federal Bureau of >> Objection, your honor, I'm going to renew my objection. I think this is be beyond the scope of determining probable cause. Uh the standards that apply here are that the court weighs the evidence in the light most favorable to the state and avoids um credibility and uh balancing the evidence of the stage. I think we're far into 702 territory at this point. >> Mr. Um, I'm not sure I understand the objection into 702 territory. 702 deals with reliability of evidence. That's what the court is here to determine. So again, it's directly relevant to reliability. Uh, this report criticizes for the specific sample she's using here, the reli reliability of this testing. And her response was, "Oh, but they weren't experts." But the report indicates that there were experts who were consulted on this report. So I think it is relevant and I think it goes to the issue of reliability and it's the only question I have on this area as well. >> Anything further Mr. McBride or do you wish to respond to that? >> Just that 702 deals with uh admissibility. Uh it does discuss reliability but it's directly related to admissibility of the testimony at trial. um under the Utah Constitution um and under the uh robust case law in this area, the court does not weigh uh the evidence, draws the inferences in the favor most uh in the light most favorable to the state and I I think we're beyond that point now. We're getting into the admissibility questions. >> All right. Anything further, Mr. Bert? >> No, your honor. >> All right. Well, I as this is the last question, I'm going to overrule the objection, but as a reminder to all parties that this is a probable cause well, I'll I will just leave it at that. >> Are you familiar with that analyst? >> No, I'm not. >> Okay. Just to close a loop on the PCAST report, what what they said in the report was that published evidence supports the foundational validity of probabilistic genotyping with some programs of DNA mixtures of three individuals in which the minor contributor constitutes at least 20% of the intact DNA in the mixture and in which the DNA amount exceeds the minimum required level for the meth. Isn't that what they concluded? >> That sounds accurate. Yes. >> And and do you know why the level 20% uh raises reliability issues? >> I do not know. >> Okay. Um but you do know that in this case both your samples had minor contributors below 20%. >> That is true. But in this case there was also it was also only a mixture of two individuals. All right. Now, that's the next thing I was going to ask you about, which is uh what is NOOCC? >> NOCC stands for number of contributors. >> And when you use this program, this genotyping program, STARM mix, who decides what the number of contributors is? >> Uh that's my determination based on my experience and training looking at the data. Um I I that's something I input into Stararmmix, >> right? And that's a complex determination, is it not? >> Not necessarily. >> Uh but it can be in some cases. Correct. Uh it could be if again if there's mixtures of a lot of individuals and a lot of the uh peak heights the size of the spikes are relatively the same it it could cause um it it could cause some uh some trouble for me as an examiner. >> All right. One of the groups that studies your field is the National Institute of Standards and Technology. Correct. >> That is correct. Yes. >> They're in the Department of Commerce, >> I believe. So, yes. >> Federal agency. >> Yes. >> And uh they published a report in 2024 called Forensic DNA Interpretation and Human Factors: Improving Practice through a systems approach. You're familiar with that publication, right? >> I am. Yes. >> And was that a publication written by scientists? I I don't recall exactly who the authors of that publication were. >> Um, okay. It's a long report, right? >> Yes, it is. >> And you've read it? >> I I've read highlights of it. >> Is it true that one of the things that they have a section on the complexity of number of contributor estimations. >> Objection. Are you >> Same objection, your honor. Uh this is beyond the scope of a preliminary hearing. Again, we're talking about uh [sighs and gasps] expert reports. We're talking about um scientific studies. These materials are all fine to consider at a 702 admissibility hearing. At this stage where again the light the evidence is viewed in the light most favorable to the state. This is unhelpful to the court's determination, therefore irrelevant to this proceeding. Thank you, Mr. McBride. Mr. Bert, >> I think the report that the state put in evidence uh as clarified by this witness indicates that she reached the conclusion that Mr. Robinson and Mr. Twigs were quote possible contributors to these two samples. And so the one one thing the court has to weigh is what what is the weight of that opinion given the science or lack thereof? And one of the important issues here is how she derived these statistical numbers. And uh as an offer of proof, I'll indicate to the court that the number is derived from this software program. And that that software program is dependent in large part on how many contributors the analyst puts into the input of the software. And the numbers can change uh if the number of contributors is uh changed. And in this case uh as as I'll show through the examination, this examiner originally thought there were three contributors. uh and I will show to the court why she changed her analysis and will indicate through this publication that there has been criticism of the way in which she determined the number of contributors. So I think it's important for the court to assess whether you've got accurate numbers in front of you. The state put in these astronomical numbers and asked are asking the court to give weight to them and I'm asking the court to consider how those numbers were arrived at and whether there are reliability issues with regard to those numbers. So the concern that I have is I turn to state via Ramirez 2012 UT59 in paragraph 10 and states furthermore the magistrate's role does not encompass an assessment of whether such inference is more plausible than an alternative that cuts in favor of the defense. That is a matter of factf finding which is left for the jury at trial. And so when I'm staying in my role as a magistrate, I I I hear what you're saying, but my concern is based off case law that dictates what I as a magistrate should be doing. If I want to stay in that lane, my fear is as we go down further down this path, which again is not precluding if this were to proceed, if there were a bind over, if there was a trial, that certainly that could be determined. But at this point, at this stage, uh I how do you how do you weigh the this issue as I'm weighing state v Ramirez in deciding whether we're going past the probable cause stage? >> Sure. And I think the answer to that is we have to take into account the ruling that you made