Case 2:08-cr-00125-DAK Document 416 Filed 11/30/10 Page 1 of 4

STEVEN B. KILLPACK, Federal Defender (#1808)

ROBERT STEELE, Assistant Federal Defender (#5546)
WENDY M. LEWIS, Assistant Federal Defender (#5993)
PARKER DOUGLAS, Assistant Federal Defender (#8924)
AUDREY K. JAMES, Attorney for Defendant (#9804)
UTAH FEDERAL DEFENDER OFFICE
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Fax: (801)-524-4060
Attorneys for Defendant
_____________________________________________________________________________

IN THE UNITED STATES COURT

DISTRICT OF UTAH, CENTRAL DIVISION

_____________________________________________________________________________

UNITED STATES OF AMERICA, NOTICE OF AGREEMENT

RE: LIMITS TO
Plaintiff, EXPERT WITNESS TESTIMONY

v.
Case No. 2:08CR125 DAK
BRIAN DAVID MITCHELL,
Honorable Dale A. Kimball
Defendant.

Defendant, Brian David Mitchell, by and through his counsel of record, files this Notice

of Agreement with the Court concerning limits to expert witness testimony. The parties have

agreed in writing and on the record before this Court to the following:

1. That expert witnesses shall not offer an opinion as to whether the defendant

understood the nature and wrongfulness of his actions.

Additionally, inferences going to this issue are not to be offered. This includes, but is not

limited to, thinly veiled hypotheticals or a minor change in the terminology concerning the
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ultimate issue in order to evade the rule. It is permissible to opine as to the characteristics of a

specific mental illness and how particular behaviors do or do not support a given diagnosis.

2. That expert witnesses shall not testify concerning any offer by the defendant to

plead guilty.

Those statements contained in letters from Mr. Mitchell’s state court defense team to the

prosecutors concerning plea negotiations are inadmissible. The Government may seek to admit

some of these statements through an expert but will have to notify the Court and counsel before

they attempt to do so, so that the Court can consider their admissibility under Federal Rule of

Evidence 703.

Counsel have agreed that all statements made by Mr. Mitchell to mental health evaluators

are admissible. Statements made by Defendant to Dr. Skeem can be admitted and relied upon by

experts, but without any reference to Dr. Skeem.

3. That expert witnesses shall not testify to any allegations that Defendant has

committed acts of sexual abuse, as defined by Federal Rule of Evidence 413, except as stipulated

by the parties.

The stipulation is limited to the facts of the 1970 juvenile court adjudication and to the

stipulation as to the testimony of Rebecca Woodridge. The testimony of Elizabeth Smart is, of

course, available to the experts in their testimony at trial.

4. That expert witnesses shall not testify as to any opinions and/or findings

concerning the Defendant’s competence to proceed to trial.

Additionally and to the extent that it is possible, the witnesses will not refer to the prior

proceedings as competency proceedings or to the prior evaluations as competency evaluations.

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The problem that has already arisen at trial will be dealt with by way of a stipulation by the

parties.

5. That expert witnesses shall not offer an opinion as to any allegations of defense

team misconduct.

However, any actions of the Defendant in refusing to participate in an evaluation may, of

course, be the subject of testimony.

6. That expert witnesses called by the Government shall not testify concerning

testimonial statements of another witness that have not been placed in the record either by direct

testimony of that witness or by stipulation.

Accordingly, out-of-court statements made either to law enforcement or an expert witness

retained by the United States cannot be repeated to the jury through an expert witness at trial,

unless the Defendant is afforded the opportunity to cross-examine that witness or waives the

right to such examination through stipulation. Statements made in the social history records that

were not created for the purpose of these criminal proceedings are non-testimonial in nature.

Experts should be free to testify as to their independent judgments formed on the basis of

testimonial hearsay so long as they do not repeat the statements of others.

Both parties agree to confer with all witnesses set to testify in the case, but especially

their expert witnesses, carefully delineating the limits that have been agreed upon. The parties

expect these limits to be self-enforced and, upon proper objection, to be enforced by the Court.

DATED this 30th day of November, 2010.

/s/ Robert L. Steele

ROBERT L. STEELE
Assistant Federal Defender

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CERTIFICATE OF DELIVERY

I hereby certify that a true and correct copy of the foregoing was filed on this 30th day of
November, 2010, with the Clerk of the Court using the CM/ECF system which sent notification
of such filing to the following:

Felice John Viti

Dave Backman
Diana Hagen
Alicia Cook
United States Attorney’s Office
185 South State Street, Suite 400
Salt Lake City, Utah 84111

Michael P. O’Brien
Ryan M. Harris
Shane J. Shumway
Jones Waldo Holbrook & McDonough

/ s / K. Harris
Utah Federal Defender Office