Idaho college murders: Bryan Kohberger community survey can proceed, judge rules

Lawyers for Bryan Kohberger, the man accused of stabbing to death four Idaho college students in 2022, can continue their survey of prospective jurors in the state, the judge overseeing his case has ruled.

Kohberger's lawyers had hired a consultant to conduct community phone polling ahead of his upcoming capital murder trial in order to gauge the attitude and potential bias of people who could one day decide his fate.

That survey -- which had become a source of pretrial contention -- can now proceed without changing any of the questions, including the nine with which prosecutors have taken issue.

"The defense may continue its surveys without modification to the survey questions," Judge John Judge, overseeing the case, said in his order filed Friday and posted to the docket Monday afternoon.

Judge had put the so-called non-dissemination order in place to preserve Kohberger’s right to a fair trial in the high-profile case.

The "goal" of the gag order "is to ensure a fair and impartial jury can be impaneled so that Defendant receives a fair trial," Judge said. "If defense counsel believes asking these survey questions, which arguably contain prejudicial information or misinformation about Defendant, is more beneficial than harmful, as Defendant's expert testified, this Court does not, at this juncture, have sufficient information or evidence to second guess that strategic decision by trial counsel."

Previously, prosecutor Bill Thompson, leading the case against Kohberger, argued some of the survey questions commissioned by Kohberger's defense had effectively poisoned the opinions of 400 local community members beyond repair. He said in documents and in court that some of the pollster queries not only violated the gag order, but that a few of the questions spread false information about the case, and could foster a "false impression" amongst potential jurors.

Kohberger's lead attorney, Anne Taylor, argued their poll questions were based on information obtained in the "public record," and discussed in the media – and, moreover, the fact that some of the information was untrue was part of the point since, Taylor said, the rumor mill can influence opinion as effectively as fact, and gauging bias is exactly their aim determining whether a local jury pool could be fair and impartial.

Here's how the judge assessed the nine questions "at issue" in his ruling:

Six of the questions came from the probable cause affidavit, which is publicly available; thus, asking about it does not violate the gag order.

One of the questions "was not based on admissible or inadmissible 'evidence' but instead asked about the feelings" of community members in Moscow, Idaho, where the killings allegedly occurred – therefore, it did not violate the gag order.

The remaining two questions, which asked about certain "media items," were "read into the public record and discussed at length" during the recent hearings litigating the survey, "including the fact that these 'media items' may not be true," the judge said. "Because the information is now in the public record, the Court does not see any benefit in preventing the defense from continuing its surveys or requiring that the two questions at issue be eliminated."

Kohberger's team will now be able to proceed with their survey, which is part of their larger attempt to convince the judge to move the trial to a different county, arguing the local jury pool has been tainted by pre-trial publicity. That survey, Kohberger lawyer Taylor has said, already determined that the Latah County pool of potential jurors would not be able to be fair and impartial in his case. Now, Taylor has said, they want to assess potential bias in other areas of the state, where it could be heard by jurors who have not been exposed to more than a year of news coverage about the case. Prosecutors, for their part, have argued the “national, if not international attention” this case has received makes moving it from one Idaho county to another futile.

Objecting to some of the survey questions, Latah County Prosecutor Bill Thompson read nine examples aloud in court, which he said "concern" their team "immensely":

"Question. Have you read, seen or heard if Bryan Kohberger was arrested at his parents' home in Pennsylvania?" Thompson read during an April 4 hearing.

Additional questions Thompson’s team was concerned with are:

"Question: Have you read, seen or heard if police found a knife sheath on the bed next to one of the victims?"

"Question. Have you read, seen or heard that DNA found on the knife sheath was later matched to Bryan Kohberger?"

"Question: Have you read, seen or heard if Bryan Kohberger owned the same type of car recorded on video driving in the neighborhood where the killings occurred?"

"Have you seen -- read seen or heard – if the cell phone tower data showed that Bryan Kohberger made several trips near the victims' home in the month before the killing?"

"Have you read, seen or heard if university students in Moscow and their parents lived in fear until Bryan Kohberger was arrested for the murders?"

"Have you read, seen or heard if Bryan Kohberger said that he was out driving alone on the night of the murders?"

"Have you read, seen or heard if Bryan Kohberger stalked one of the victims?"

"Have you read, seen or heard if Bryan Kohberger had followed one of the victims on social media?"

Prosecutors allege that in the early morning hours of Nov. 13, 2022, Kohberger, then a criminology Ph.D. student at nearby Washington State University, broke into an off-campus home and stabbed four University of Idaho students to death: Ethan Chapin, 20; Madison Mogen, 21; Xana Kernodle, 20, and Kaylee Goncalves, 21.

After a six-week investigation, police zeroed in on Kohberger as the suspect, arresting him in December 2022 at his family's home in Pennsylvania. He was indicted in May 2023 and charged with four counts of first-degree murder and one count of burglary. At his arraignment, he declined to offer a plea, so the judge entered a not-guilty plea on his behalf.

Kohberger could face the death penalty if convicted.

His lawyers have said their client wasn't in the home where the homicides occurred and was out driving that night. Lawyers also say they'll have expert cell phone tower data analysis to back that up.

A trial date has not yet been set.

A hearing on Kohberger's request for a change of venue is set for June 27.

ABC News' Josh Margolin contributed to this report.