Hawaii Doctor Accused of Beating Wife With Lava Rock Wants Case Tossed

The doctor accused of trying to kill his. wife in an alleged cliff push syringe. rock attack out in Hawaii is now trying. to have the case thrown out. And I will. tell you some very very interesting. arguments that may work may work. We're. going to bring on an expert in criminal. law to discuss. Welcome to Sidebar. presented by Law & Crime. I'm Jesse. Weber. [Music]. All right, I got to tell you about. something that we use here on Sidebar. that I think could be very very useful. to you. It is TruthFinder. TruthFinder.

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Sidebar. Big legal update on a story. that we've covered before here on. Sidebar. And it concerns. anesthesiologist Dr. Gerhart Koenig, who. is charged with second-degree attempted. murder for allegedly trying to throw his. wife off the side of a cliff out in. Hawaii and then allegedly proceeding to. beat her with a rock and try to inject. her with a syringe. Now, his attorney is. trying to get this whole case thrown. out. The question is, will it work? I. will tell you, I don't know. After. reading some of this, it makes you pause. and wonder. Now, it is rare. We'll talk.

about this. It is rare to get these. motions, but. there might be something here. So, we're. going to get into all that. We're going. to get into all the arguments. We're. going to get into the new court filings. There's also something from the. prosecution that we have to talk about. It's really really interesting. But. obviously, I can't get into any of that. without giving you the backstory, right? So, we have Gerhart and his wife, Ariel. Koenig. They lived in a reported $1.5. million home in a private community out. in the West Maui Mountains out in. Hawaii. This is according to people. He. worked at the Maui Memorial Medical.

Center in Wailuku. Ariel was a. stay-at-home mom, but also worked as. apparently a nuclear engineer. But there. were reported issues in their marriage. Gerhart had apparently accused Ariel of. cheating on him. This was per a court. filing, a petition for protective order. that she filed against him after this. alleged attack, which we're going to get. into. But in her original petition for. the temporary restraining order, according to the Associated Press, Ariel. accused Gerhart of sexually abusing and. assaulting her. She also said they'd.

been going to counseling and therapy. since he had accused her of having an. affair. This alleged infidelity, these. problems in their marriage are are. seemingly going on or allegedly going. on. And then you go to March 23rd, 2025. Gerhart, Ariel, they decide to take a. short flight from Maui to Oahu for a. getaway, leaving their two sons at home. with a nanny. Now, this is to celebrate. Ariel's 36th birthday. The next morning, March 24th, according to police. paperwork, they go on this hike that. Gerhart allegedly planned at the Pali.

Puka hiking trail. Now, it should be. noted, and then we've previously. reported on this, this trail is closed. But they apparently walked right past. the area closed sign. And Gerhart. allegedly asks Ariel to take these. selfie pictures despite Ariel reportedly. being nervous about being up there in. the cliffs, okay? So, I'm going to read. you verbatim from the official paperwork. from police, okay? Quote, Gerhart. continued to ask Ariel several more.

times to take selfie pictures with. Gerhart at the cliff's edge, which. alarmed Ariel due to their marriage. having recent problems. As Ariel walked. past the cliff's edge and towards. Gerhart, Gerhart grabbed Ariel's. shoulders and attempted to push her. towards the edge of the cliff and said, "I'm sick of this bleep. You're a lying. bleep." When Ariel reportedly brought up. their children in common to try and. convince Gerhart not to push her off the. cliff, Gerhart said, "They're only going.

to get one of us." As Ariel was being. pushed closer to the cliff's edge, she. threw herself to the ground in an. attempt to stop Gerhart from pushing her. off the cliff's edge and began wrestling. with Gerhart while trying to defend. herself. As Ariel wrestled with Gerhart, Gerhart got on top of Ariel. While. holding Ariel down with one hand, Gerhart used his other hand and took a. syringe and a vial out of his backpack, at which time Ariel was able to get the. syringe out of his hands and throw it. away from them and scream for help. Ariel described the backpack as a.

Patagonia brand black one-shoulder bag. that Gerhart usually takes to work. As. they kept wrestling, Gerhart kept trying. to pull Ariel towards the cliff's edge. as Ariel screamed for help. Ariel. continued to remind Gerhart about their. children and his parents while pleading. with him to calm down as he appeared to. be possibly grabbing another syringe. from his backpack. Gerhart calmed down. for a moment before picking up a rock. from the ground near Ariel's head and. struck Ariel on the head, face, and hand. area with the rock about 10 times while.

using his other hand to grab Ariel's. hair to lift up her head to bash it into. the ground as Ariel screamed for help. It continues, "As Gerhart repeatedly. struck Ariel with the rock, two women. hikers approached the area, interrupting. Gerhart's attack, prompting Gerhart to. get up and off of Ariel." Now, Ariel allegedly yelled, "He is trying to. kill me" when hikers walked by and they. called 911. So, the police arrive. Ariel's rushed to a medical center.

Gerhart allegedly flees into the forest, by the way. He was arrested 6 hours. later after a manhunt. And according to. prosecutors, after he allegedly ran off, Gerhart, and this is important, Gerhart. allegedly called his adult son and told. him that he tried to kill Ariel because. she was cheating on him. Keep that in. mind. It comes up later. And prosecutors. also allege that he told his son he was. planning to turn off his phone so police. couldn't track it. Now, Ariel reportedly. suffered major cuts to her head from. this softball-sized lava rock that her.

husband allegedly beat her with. You. have WTAE reporting that she had to have. surgery a few days later when she'd. returned to her home to Maui. She called. police to let them know that she'd found. something very suspicious in Gerhart's. closet. A warrant reads, quote, "Ariel. discovered what appeared to be several. syringes and several different drug. medicine vials. Upon speaking with Ariel. via telephone, which was audio recorded, Ariel described the syringes she. observed in the Nike fanny pack as clear. regular syringes and described the vials.

she observed in the Nike fanny pack as. hospital vials. And she also revealed. that the fanny pack was, quote, Gerhart's medical bag that he takes with. him as he goes to and from work as an. anesthesiologist. Now, the fanny pack. was collected from the home by officers. who immediately shipped it to the island. of Oahu. A Honolulu police officer. searched it, took photos of what they. found inside, reportedly including. multiple syringes, multiple vials of. different anesthesia medications that. are often found in hospitals. Now, obviously, in an unsurprising move,

Ariel filed for divorce from Gerhart. And while she initially pursued that. TRO, that temporary restraining order. against him, she apparently dropped it, especially with him being locked behind. locked up behind bars awaiting trial. Her attorney basically indicated that. this is just a way to now focus on the. criminal case. So, put all that to the. side, okay? After a grand jury indicted. Gerhart on attempted second-degree. murder and he entered a plea of not. guilty, now we have to talk about what. his lawyer is doing, okay? Trying to get.

the case thrown out. Will it work? That's the question. All right. So, as I. break down the arguments, I want to. bring on Philip DeBay, former deputy. public defender from LA County. Philip, it's so good to see you. Thanks for. coming back on here. Before we even get. into the specifics of the arguments, okay? And they're very very interesting. Before even get into that, before even. get into the specifics of this case, generally speaking, how successful are. motions to dismiss in criminal cases at. this stage?

They're never. They're really not. >> Ever? Never? >> No, it's rare. Based on my experience, we very very rarely get a felony. murder or attempted murder kicked at. this early stage of the proceedings. It's extraordinarily rare. Now, once in. a while we will get motions granted, but. they're not dispositive of the dismissal. of the actual charges. It might just. chip away at the evidence that's going. to be introduced at the trial. But. otherwise, no. And even if these motions.

are successful, the prosecution's going. to be able to re-impanel a grand jury. and start anew. So, it's not as if he's. going to walk away. It just means they. start over. Well, I will tell you there. it seems to be an effort, at least in in. one of these motions, to dismiss this. case. I believe with prejudice, right? So, it wouldn't be brought back to the. grand jury. So, let's let's go through. this. I hear you. I know it's rare, but. it does happen. It does happen. And I'm. curious, is there room here for the. charge to be dropped? I want to get into. it. So, there are two separate motions.

to dismiss that we're going to talk. about. I'm going to take them piece by. piece. I want to start with the first. motion to dismiss. Now, the first motion. to dismiss asserts that there are two. different grounds to get the case. dismissed, to get the case thrown out. One, the argument is, is that the. prosecution didn't present exculpatory. evidence to the grand jury that indicted. Gerhart, meaning evidence tending. tending to show that he's not guilty of. the crime. So, now your question is. probably, what evidence are they talking.

about? Well, they refer to these. physician forms that apparently two. doctors completed that the defense here. argues shows, in their opinion, that. these doctors concluded that Ariel's. injuries, quote, did not create a. substantial risk of death. Now, why is that important? Let me. explain. So, the defense argues that in. order to prove attempted second-degree. murder, you need to show that the. defendant took a substantial step to. kill with an intent to kill. And the.

defense argues the prosecution didn't. show that. Quote, "Two doctors examined. the complainant shortly after the. charged incident allegedly occurred. Both of those doctors opined that her. injuries did not create a substantial. risk of death." "That the defendant. allegedly assaulted the complainant with. a rock, which Detective Spasic told the. grand jury was smaller than a softball. to an extent that failed to create a. substantial risk of death is clearly. exculpatory circumstantial evidence that. the accused did not harbor the specific.

intent required to prove attempted. murder." "By not presenting such clearly. exculpatory circumstantial evidence, the. state therefore misled the grand jury in. a manner that prejudicially undermined. the grand jury's independence and. impartiality." Now, I will tell you. I looked at the doctor's report or the. apparent doctor's report that's included. as an exhibit here. And next to, did the. injury create a substantial risk of. death? There is a check next to the box.

that says no. Okay, Philip, over to you. Is this a good argument because. essentially it would be. that there was I mean, unless I'm wrong, there's really no way he could have. killed her with the rock. I mean, couldn't it also be argued that he could. have killed her, but it Remember, it's. attempted second-degree. He could have. killed her, it just didn't complete the. act. That's exactly what the problem is. for the good doctor here. And I don't. mean the doctor who rendered the. opinion. I'm talking about Dr. Konig.

The test is not whether he could have. caused the death. The test is one of his. intent. In other words, when he tried to. push her off a cliff or when he tried to. inject her with a syringe or when he. tried to knock her in the head with a. rock, what was his intent? And the fact. that he was unable to carry out the. intent does not necessarily mean he's. innocent. It just means he's guilty of. an attempt. Because for all we know, what if he would have kept banging her. on the head with that rock? What if he.

would have taken that rock and really. slammed it into her head 15, 20, 30, 40. times until she's finally dead? So, the. fact that maybe she only got struck once. or twice and perhaps the act was. thwarted by hikers or people, you know, walking on the trail there, it doesn't. mean that the act could not have been. carried out. The test is one of what was. going through his mind at the time. And. that was for the grand jury to. determine. Right. So, in other words, it would have. been different, for example, if someone. takes a pillow and hits somebody, that.

you could be like, there's no way under. the law that that is attempted murder, so that the case should be thrown out. But when you're dealing with a rock or. let's say a syringe or allegedly trying. to throw her off the cliff, your opinion. is that two things can be true at once, right? A doctor could say there was no. substantial risk of death because. they're looking at the injuries that she. actually sustained, but at the same time. there could have been an intent here to. kill her. Absolutely. And you know, the. the real question is, what would have. happened if those hikers would not have.

come along the way? It means he could. have potentially gotten the job done, assuming the prosecution is correct in. their theory. And if that were the case, it could have potentially gone unsolved. because what likely would have happened. is she would have died and her body. would have been thrown over the cliff. into the Pacific Ocean there and she may. have never even been found. But the the. test is one of intent. Whether or not. the substantial act or commission of the. underlying homicide is actually carried.

out is irrelevant. All that really. matters is was the act accompanied by. that evil intent. And and to this other. argument though, hey listen, the grand. jury didn't see these reports. I guess. that's the argument, right? Is this. exculpatory information to the extent. that it misled the grand jury, the case. should be thrown out? Um, you know, what's your opinion on this kind of. evidence not being presented to the. grand jury because some people might say. some people say, wait a second, wait a. second. Grand jury hearing is not a.

trial. Isn't it kind of one-sided? Isn't. it what the prosecution presents? So, talk to me about the the rule about. exculpatory information in a grand jury. and whether or not you know, they have. an argument that should have been. presented. Great question. And I think a. lot of it depends on how many jurors. voted to indict. And I think under Hawaii law they need. nine. If only nine came back out of the. 12. and this evidence could have been. presented or should have been presented, there's an argument to be made that less. than nine could have come back, meaning.

there's not even probable cause, uh, you know, to believe that he committed the crime, let alone proof beyond a reasonable. doubt. And had those reports been. presented, it could have tipped the. balance in favor of not returning a true. bill of indictment. Now, on the other. hand, again, it goes back to what I said. earlier. I don't believe that these reports, even. even though they do not show a. substantial step toward commission of. the crime, prove that he could not have.

done it anyway. All All it really proves. is thank God that he didn't and thank. God that she survived. But it does not. negate or obviate his underlying intent. That's his legal. Okay, so we put that. one to the side. We'll talk about it. again in a minute cuz we'll we'll try to. see what we can expect will happen here. But I want to move on to the second. ground for dismissal in this first. motion to dismiss. And this is again. argued by Gerhart's defense. This.

argument is about hearsay. Now, Philip, real quick, before we get into all this. the specifics of this in layman's terms, what is hearsay? Why is it bad? Why is it not allowed in. a trial? Let's just start there so we're. all on the same page. Here's the bottom line. Hearsay is when. you're quoting somebody outside of court. in court. You cannot quote people who. said stuff outside of court. You need. that person to come in and testify. And. the reason why is that it's inherently.

unreliable just to put forth statements. from other people without having the. opportunity to cross-examine them and. test the validity and accuracy and. veracity of the statement. So, when. they're coming in through a third or. fourth or fifth party through multiple. layers, then it questions whether or not. the true fact is being diluted. And you. don't want to mislead particularly a. grand jury as to what was said. Otherwise, you are put unnecessarily. putting people on trial for crimes that. carry life.

So, I think in fairness, particularly. when the uh the the the bar is so low. anyway, you need to bring in your. witnesses and have them test testify to. what exactly occurred and what exactly. was said and not through third parties. That's a brilliant explanation, one of. the clearest explanations that I've ever. heard. Um, I'm happy you laid it out. there because yeah, 100% like it's not. fair for a defendant to have to defend. himself if you have somebody come to me. like, yeah, uh John Smith told me that.

defendant, uh, you know, said he killed. her. Um, that's, you know, because. again, um, how what's the reliability of. that? How do we uh you know, test if. that's actually true what the statement. was unless you have that person testify. There are exceptions to certain. statements coming in for other purposes, but we're going to put that to the side. Now, let me explain what is happening. here. So, the defense claims that the. prosecution presented misleading hearsay. evidence to the grand jury and that the. case needs to be thrown out. Now, the. defense says that a prosecutor may.

present hearsay to a grand jury, it just. can't be misleading. So, here the. defense argues that the state presented. triple hearsay when they tried to show. that Gerhart, again, the defendant, allegedly confessed to his son, Emile, about what he tried to do. The defense. argues, wait a second, he didn't really. say that. So, the defense explains that. the prosecution presented the testimony. of Detective Spasic during the grand. jury hearing. And this was about Emile's.

interview with police. The defense. claims that Detective Spasic's. testimony, quote, "appears to repeat and. distort what the detective who. interviewed Emile. uh said and what was written in his. report." That this distorted what Emile. actually said. That might be a little. complicated, so let me break it down. The initial issue. before we get into this is why didn't. Emile just, right, testify during the. grand jury in the first place? Right? If. there's a question about what he. allegedly said, just have him testify.

Well, that's problem number one, right? Just have him testify about what his. father allegedly said. That's problem. number one because according to the. defense, Detective Spasic reportedly told the. grand jury that while Emile was told. about the grand jury hearing, he wasn't. available because he was in Pittsburgh, Pennsylvania and didn't know when he was. going to be back in Hawaii to testify. The defense argues, wait a second, being. in Pennsylvania doesn't mean he wasn't. available to testify under the law. And. for hearsay purposes, he could have.

testified through video, he could have. testified through phone, he could have. been subpoenaed by the prosecution. So, the prosecution could have gotten him on. the record and just substituting hearsay. evidence about what Emile allegedly. said, that doesn't cut it. Okay, Philip, before we get into what Emile did or did. not say, I got to get to that initial. argument. Um, is the defense right? Is. he really not a unavailable witness. under the law? Not at all. He is completely available.

Unavailability is a term of art. Unavailable doesn't mean that you're. otherwise preoccupied, you've got other. engagements, uh you're going on vacation. Unavailability means that either you're. mentally infirm. or maybe even physically incapable of. coming to court uh or there's. a danger that you're going to flee the. jurisdiction, that kind of thing, or. they could not otherwise obtain his. presence through process after the.

exercise of due diligence. They didn't. have any of that. Instead, he just said. over the phone, "I can't make it." Well, that doesn't mean you're legally. unavailable. So, you cannot use that as. a pathway to admit all this misleading. hearsay at a grand jury. The problem for. the good doctor here is that under. Hawaii law, hearsay is admissible at. grand jury proceedings. However, it. cannot be misleading. Okay? The. unavailability aspect doesn't. necessarily make it misleading. What. makes it misleading is exactly what the.

cops did. In other words, did the good doctor. confess to his son, or did his son get. everything so muddled Right. >> and so unclear that it left the jury. with the inescapable conclusion that he. did confess. And that's a serious. allegation because confessions are the. worst evidence against defendants in. criminal trials. 100%. So, you we start. with the idea of, okay, defense is. making an argument, right? Emile could. have testified. So, now let's go into.

the second part, because the defense. argues, they allege, basically, the. prosecution wanted to make sure that. Emile wasn't available to testify, so. they could strategically get in triple. hearsay evidence that makes it falsely. look like Gerhardt confessed. This is. their allegation. And according to the. defense, quote, "The transcript of Emile's interview. with the MPD detectives does not clearly. reflect what the defendant had actually. said and admitted. At best, the. transcript indicates that Emile assumed.

that his father had confessed to trying. to kill Ariel by pushing her off the. cliff. Initially, Emile told the. detectives, quote, 'He said he tried to. kill her by pushing her off the cliff.'. But when pressed further about what. words his father had actually used, Emile told the detectives, 'That's what. he said. Well, I like I kind Mostly, he. just said I tried to kill her, and I'm. like, right where they're standing, and. they were like, on the edge of a cliff, and and he was saying. he was going to jump, so I assume I.

assume that's what he meant.'". They go on to say, "What Emile clarified. then was that the defendant had not. confessed to trying to kill her by. pushing her off the cliff, but that. Emile had simply assumed that he had. tried to kill her by pushing her off the. cliff." The defense goes on, quote, "Detective Pegau further stated in his. report, quote, 'When asked later if his. father admitted to pushing Ariel off the. cliff, Emile clarified that his father. said it loosely.' The transcript of the.

interview does not reflect that Emile. said, quote, 'His father said it. loosely.' The gloss that Emile clarified. that his father had confessed loosely to. trying to kill Ariel by pushing her off. the cliff is the detective's. paraphrasing and word choices, not. Emile's words. Detective Pegau's report. thus misrepresents what Emile had said. by asserting that Emile said that his. father said it loosely, with the it. being a confession to trying to push. Ariel off the cliff. A fair reading of.

Emile's clarifying remarks is that Emile. assumed that his father had confessed. rather than that his father explicitly. had confessed. Detective Spasic's grand. jury testimony repeats what is written. in Detective Pegau's report. And as to. Emile's clarification, Detective Spasic. told the grand jury, quote, 'Yeah, he. was, you know, initially initially he. said that his father Ger Gerhardt told. him that he tried to kill Ariel by. pushing her off the cliff, but later he. kind of he kind of clarified that that. Gerhardt loosely made that comment.' Not.

only did Detective Spasic attribute. Detective Pegau's loosely remark to. Emile, Detective Spasic also entirely. alighted Emile's admission that he. assumed his father had tried to push. Ariel off the cliff off the cliff rather. than that his father had explicitly. confessed to doing so. Thus, while. Detective Pegau's report, flawed as it. is, at least included a remark about. Emile assuming something, Detective. Spasic's grand jury testimony alighted. any mention of Emile assuming anything.

While the triple hearsay is. prejudicially ambiguous and muddled, direct testimony from Emile at the grand. jury proceeding could have clarified the. ambiguities in the hearsay. Philip, your. thoughts. Right. And this is why Hawaii law has that rule. that while hearsay is admissible to a. grand jury, it cannot be misleading. And. when you have all these sort of. multivalent ways of interpreting what,

if anything, Dr. Koenig said to the son, what the son said in response, you're. leaving a grand jury to have to guess. And remember, it goes back to what I. just said earlier, when the bar is so. low, namely that it's based on a. probable cause finding that the crime. was committed and that the doctor. committed it, and that you need nine out of 12, it's. very possible that. all of this, when you kind of synthesize. it, could have actually created fewer. than the nine, and they may not have.

returned a true bill. So, what you. should do, or what the judge should do. in this particular case, is send it back. to the grand jury and redo it. And that. way, and I don't think that this motion. should be granted with prejudice, but I. do think it should be granted because I. don't think that being slothful, a little indolent, is enough to say that. this prosecution should be barred for. all time. Because if, in fact, this. doctor did this to his wife, he should. not escape justice just because a.

prosecutor was a little lazy in securing. a star witness before the grand jury. And this is coming from somebody who. said these motions never get granted. So, it's pretty remarkable. And by the. way, so the main argument, yes, is that. these alleged defects improperly. improved the chances that jurors would. indict. And in other words, that had the. jurors known that the doctors concluded. that there was a substantial that there. wasn't a substantial risk of death, and. that Gerhardt didn't confess, per se, the prosecution's case wouldn't be so. strong. Now, as I mentioned, the defense.

filed a second motion to dismiss. This. is a shorter argument. Basically, the. argument is in this one is the defense. wasn't provided the necessary notice or. details under the law about the specific. charge. For example, what exactly is the quote substantial. step that was taken for attempted. second-degree murder? That the. indictment is too general, it's not. specific enough. Quote, "The generic. term substantial step does not. indirectly or by inference inform the.

defendant what the underlying. substantial step is. Is it trying to. push the complainant off the cliff? Is. it trying to inject her with an unknown. substance from an unrecovered vial using. two unrecovered syringes, or is it. striking her with a rock smaller than a. softball and inflicting injuries that. did not create a substantial risk of. death?" Obviously, they're putting a. little bit of color on their. interpretation of the evidence there, but in other words, they're saying the. indictment is defective. That Gerhardt, criminal defendant, has a right to know. what he's defending himself against. The.

defense is asking the court either to. throw out the case, or that they should. that the prosecution should be required. to file what we call in the law a bill. of particulars. Basically, further. details of the allegations, so they know. what they're defending against. What. exactly is the substantial step here? Philip, as to this second motion to. dismiss, your thoughts. I do think it has merit, because if and. when this matter goes to trial, the. prosecution's theory is that the death.

was either going to be brought on by the. syringe, the rock, or the shove off the. cliff. The defense would be entitled to. a unanimity instruction, where the jury. has to find beyond a reasonable doubt, all of them, that one or more of those. substantial steps were carried out. And. if you don't have a precise theory on. which the prosecution is relying, it. puts the defense in the untenable. position of having to guess. They should. not have to gear up and prepare to sort.

of deflect all the evidence as against. all three. So, they're entitled to. clarity on it under due process. So, what you do is you send it back for a. bill of particulars, and but you don't. necessarily kick it with prejudice. And. the jury can come back, you never know. You might They They might get four who. says, "Well, now we think he was going. to do it with a rock." You might get. three who say, "Well, we don't know what. was in that syringe. Who knows? He could. have just had it on him because he's a. doctor, you know?". And you might get two who come back and.

say, "Well, I don't believe he was going. to push her off a cliff, cuz I don't. think they were close enough to the edge. of the cliff anyway." So, it's just sort. of like a. I don't know. a theory that really could not be. carried out, because physically it would. have been impossible. But the bottom. line is I think that this should go back. for a bill of particulars, so that the. defense is on notice of what he needs to. defend against at trial. So, in other. words, when there's a hearing set for.

February 9th here, and you're going to. hear these arguments regurgitated by the. defense, and you'll hear. counterarguments from the prosecution, probably saying like, this is not. exculpatory information, this wasn't. misleading, this witness was. unavailable, you know, this there was substantial. step, it's clear what we're talking. about. The judge is going to have to. make a decision here. So, you believe, when all is said and done, that the. judge may actually toss this indictment, have it be sent back to a grand jury. with all these.

things fixed, and maybe even a bill of. particulars being ordered, so the. defense has a better understanding of. what the substantial step is. So, you, despite saying that these motions are. never granted, you think they might be. granted in in part. Yeah, just not with. prejudice. Right. Do you know what I'm. saying? So, in other words, the. prosecution still going to get another. whack. They're not going to be barred. Listen, mistakes are made every day in. the justice system by prosecutors. It. doesn't mean that they're intentionally. trying to deceive the other side. It. just means that they got a little.

sloppy. We don't We're not in the. business of punishing either side. In. the end, we still want to get to the. truth. And that's at the heart of our. justice system. And to just have an I. got you moment, you didn't do this. right, this didn't get particularized. right, therefore the good doctor walk. not in Hawaii. No way. Let me Let me ask. you one more thing that I have to. address. So, prosecutors prosecutors. this time, not the defense, the. prosecutors. uh the prosecution, they filed something. and it was about how Gerhart, right, the. defendant, reportedly about him not.

saying anything to police before he was. arrested and how that can be used maybe. against him. So, it But I let me be. clear. That can maybe be used against. him should he testify at trial. So, let. me explain this. So, as everybody knows, criminal defendants have a right against. self-incrimination. However, that. doesn't mean, according to the. prosecution, that doesn't mean that you. choosing to remain silent can't be used. as impeachment evidence if you testify, meaning evidence to show you aren't. telling the truth. So, here, this is.

what it says, quote, here, defendant did. not speak to police or any emergency. services prior to his arrest on March. 24th, 2025, despite having the ability. to do so for approximately 8 hours. between the incident and his arrest. The. jury could infer that a reasonable. person situated as the defendant prior. to arrest would naturally come forward. to share their apparent exculpatory. story as soon as possible. His. pre-arrest silence has sufficient.

probative worth bearing on defendant's. credibility and therefore is a fair. subject for cross-examination. The state. may elicit information that he did not. provide his story to police prior to. arrest as a legitimate issue of. credibility subject to the jury's. consideration. So, in other words, Philip, they're saying, hey, listen, he decides to take the stand and defend. himself, they have every right to say, why didn't you tell your story to. police? Why Why didn't you tell your. story to first responders? Why weren't. you adamant, oh my gosh, this is not. what happened, this is not what. happened? Are they right? Can they Can.

they include that? Can they ask him. about that if he takes the stand? Absolutely. The US Supreme Court held, I. think it was back in the '60s, that. pre-arrest silence is admissible against. a testifying defendant. It's Assuming. it's relevant. You can't just make stuff. up or get into silence that was 3 years. before the incident or 3 years before. the arrest. But if temporally it's at or. around the time of the crime and the. arrest, it can come in. The question is, will the court allow it? It's always.

discretionary, it's not mandatory. But. taking the stand is a risky venture and. you do so at your own peril. And he's. going to have to be prepared, should he. testify, to explain away, cuz they will. ask why he didn't voluntarily offer up. certain information. Now, to be fair to. the good doctor, and I say this all the. time, you know, even though he's a doctor and he's. educated in his field, he's probably. never been a criminal suspect before. He. probably has no idea what he may know or.

not know is even relevant to a criminal. investigation. And to hold it as a. layperson, a civilian to that standard, I think is unfair. But unfortunately, those are going to be have to be. reserved for arguments in your closing. to the jury. And he's going to have to. explain away every act of silence or. omission uh to avoid a conviction, cuz. under Hawaii law, these charges carry. life. Philip DeBay, man, I missed you. Great. Thank you so much. Fantastic analysis in.

this. Always appreciate your insight. Thank you so much. Thank you back. That's all we have for. you right now here on Sidebar, everybody. Thank you so much for joining. us and as always, please subscribe on. YouTube, Apple Podcast, Spotify, wherever you get your podcast. You can. follow me on X or Instagram. I'm Jesse. Weber. I'll speak to you next time. [Music].