Attorneys reach agreements on testimony in Brian David Mitchell case

SALT LAKE CITY — Prosecutors and defense attorneys for Brian David Mitchell, accused of kidnapping and sexually assaulting Elizabeth Smart, believe they have reached, or are close to reaching, agreements on many defense motions filed earlier in federal court.

During a brief hearing Wednesday, the U.S. Attorney's Office and Mitchell's lawyers told U.S. District Judge Dale Kimball they did not currently need him to make rulings on six motions. But should their negotiations reach a stalemate, they still wanted him to be ready to step in.

Among the issues considered Wednesday are whether expert witnesses during Mitchell's upcoming trial can be prohibited from stating an opinion or inference as to Mitchell's mental state at the time of the crime; whether all mention of Mitchell's failed plea bargain negotiations during his state court proceedings in 2004 can be banned from his federal trial; whether all evidence of prior sexual abuse allegedly committed by Mitchell can be excluded from his federal trial; whether opinions and findings in regard to competency as evidence can be excluded; whether evidence concerning misconduct by any member of Mitchell's defense team can be excluded; and whether all witnesses providing testimony are subject to in-person confrontation and cross-examination by the defense, thus excluding hearsay evidence.

In working out agreements to these points, U.S. attorney Diana Hagen agreed expert witnesses "can't use veiled hypotheticals" to talk about Mitchell's mental state, can't repeat testimonial hearsay and witnesses cannot speculate on anything Mitchell may or may not have said to them.

The issue that still seemed to have an unclear resolution was the one about prior plea-deal negotiations. While prosecutors agreed they could not admit conversations between Mitchell and his attorneys as evidence, it wasn't clear whether statements made to mental health professionals would be admissible.

Mitchell, who was ruled competent to stand trial, sang hymns when he was brought into the courtroom Wednesday, as he has for every court proceeding over the past several years. Kimball told him he had a right to stay for the proceedings as long as he didn't disrupt them.

"Apparently, he's going to waive that right," Kimball said as Mitchell continued to sing.

He was led out of the courtroom to a back room.

Earlier this week, Kimball ruled that when questionnaires are sent out to prospective jurors, they will include the question, "Do you know what will happen to Defendant if the jury reaches a verdict of not guilty by reason of insanity? Yes or No. If yes, please explain what you think will happen."