At an arraignment on criminal charges, a defendant typically pleads either guilty or not guilty. In many states, Idaho included, there is a third option: At Monday’s plea hearing for Bryan Kohberger, accused of murdering four University of Idaho students last fall, he and his attorney took that third route, choosing to “stand silent” rather than enter a plea. This prompted the judge to enter not guilty pleas on Kohberger’s behalf. The choice was perplexing to much of the general public. According to an Idaho attorney, it could have been motivated by a few different factors — some more consequential than others.
“It’s pretty unusual to be used in Idaho,” says Bart Birch, a former prosecutor and general practice attorney who has been a lawyer in Idaho since 2001. “It’s something that’s not used very often or widely.” Birch says standing silent is always an option to defendants being arraigned in Idaho, as well as multiple other states. It’s similar to a defendant’s Fifth Amendment right to stay silent to avoid self-incrimination. Judges in Idaho often lay out the options during a plea hearing, offering the defendant the opportunity to enter a plea of guilty or not guilty, before explaining that the person can also remain silent, which the judge will enter as a not guilty plea on the record.
During Monday’s hearing, Judge John Judge did not give a rundown of those options, but Kohberger’s attorney, Anne Taylor, seemed prepared with her response. When the judge finished reading Kohberger’s charges and their maximum penalties, he asked if Kohberger was prepared to enter a plea. Taylor replied, “Your honor, we will be standing silent.” The judge said, “Because Mr. Kohberger is standing silent, I’m going to enter not guilty pleas on each charge.” The charges were four counts of first-degree murder, and one felony count of burglary.
Only Kohberger and his attorney know for certain why they chose this route, but Birch says there are only a few different reasons he can think of for standing silent, and none indicates a calculated legal strategy, according to Birch.
For one thing, it could indicate the two sides in the case are in talks working toward a plea deal that hasn’t been made public yet. “Sometimes you’re just involved in plea negotiations, and you don’t want to disrupt the momentum that you have in those discussions,” he says.
Another instance where Birch has seen standing silent used is when a defendant isn’t being cooperative with their attorney or the proceedings and refuses to speak. “I’ve seen clients that are just a little defiant or difficult,” he says. “So they’re not really cooperative, and sometimes that is why they just sit there quietly in the courtroom.” At Kohberger’s hearing, however, before the invitation to enter a plea, he answered the judge’s questions, speaking clearly into a microphone to confirm he understood the charges and maximum penalties he faced.
The motivation for Kohberger standing silent that makes the most sense to Birch is a desire to tamp down public outrage when an alleged crime has received overwhelming publicity. “In a high profile case, when somebody pleads not guilty, a lot of people are offended by that gesture of pleading not guilty. They shouldn’t be, but they are,” he says. “So that would be the one that seems to make sense to me: oftentimes, people just don’t want further public criticism.”
The targeted killing of the four students with seemingly no motive generated a huge reaction from the public. Early in the case, a judge issued a gag order, forbidding parties in the case from speaking about it outside of court proceedings. An attorney for Kohberger said in a recent filing that if the judge reconsiders the order in a hearing, they will present expert testimony on the “damaging effects” of “intense” media coverage. The judge has since ruled to uphold the order. Kohberger’s trial is set for Oct. 6, 2023. It is expected to last four to six weeks.