Judge calls for evidentiary hearing during Josh Duggar child porn pretrial conference

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FAYETTEVILLE, Ark. (KNWA/KFTA) — On Thursday morning, Judge Timothy L. Brooks discussed a “walkthrough of elements and components of the trial” in the upcoming Josh Duggar child pornography case.

The Western District of Arkansas Judge decided on the necessity of an evidentiary hearing before jury selection for the trial begins on November 30.

Regarding pre-trial motions made by both sides, the judge referenced his “omnibus order” yesterday which ruled on seven of the filings. He referred to a remaining motion by the defense regarding evidence from the car lot where Duggar works as the day’s “lowest hanging fruit” and the motion was quickly deferred, pending a specific stipulation from the defense.

Much more time was spent discussing the prosecution’s motion to introduce as evidence testimony about alleged sexual molestation acts Duggar committed as a child. Two court rules, #414 and 404b, address the legality of such an admission.

The prosecution referred to their earlier motion, noting that admitting such evidence is allowed “for any purpose for which it is relevant,” according to rule 414. The defense had filed what Judge Brooks called “a mirror image of the government’s motion” due to a lack of notice.

The judge noted that rules 414 and 404b are “two separate avenues of admitting the same evidence.”

Speaking for the prosecution, attorney William G. Clayman noted a “preponderance of evidence” that the alleged acts occurred, and that one or two witnesses will testify to “multiple instances” of child molestation.

Clayman also stated that all of the girls involved were “at least three years younger” than Duggar, who was 14 at the time.

Justin Gelfand spoke for the defense and took issue with the notice requirements for calling these witnesses, stating that he “disagrees adamantly” that the prosecution did so. He said that the defense received “a single email” from the prosecution discussing what a pair of witnesses, including Duggar’s father, Jim Bob, “may testify to.”

Gelfand continued by asking whether it is clear if Duggar actually committed a crime in 2002 or 2003, according to Arkansas statutes. He added that it is “undisputed that Mr. Duggar has never been charged.”

The judge responded by asking specifically what the defense required to fulfill the notice requirements. “What is missing?” he asked. “What do you need?”

Gelfand responded with a need for “proper nouns, dates, and specific allegations.”

“You’re not seriously going to tell me you don’t know,” the judge countered. “It just seems disingenuous. Very disingenuous.” He also noted that the “information was the subject of a lawsuit [Duggar] filed in this court.”

Gelfand added that he didn’t believe behavior by Duggar as a child “is probative to behavior in his 30s.”

“And this argument rests on common sense?” asked the judge. Gelfand responded by repeating a statement he made in an earlier filing, noting his fear that the trial could devolve into a “series of minitrials” about potential crimes Duggar may or may not have committed nearly 20 years ago.

“Would [Duggar] dispute that these statements were made?” the Judge asked Gelfand, referring to the potential witness testimony.

“He would not admit that these statements were made,” Gelfand answered. “The devil is in the details.”

Clayman stated that the defense claim for a need for specific details was “not correct,” and that the law only requires a summary, which the government provided. He added that one witness in question is already under subpoena, while the other, Jim Bob Duggar, has been impossible to reach.

At this point, the judge voiced his sentiments that an evidentiary hearing with witnesses would be necessary before the trial, calling the state of the competing motions “Jell-O on a wall at this point.” He stated that he would be “very hesitant” to make a ruling on the motions without knowing if the witnesses will be called at trial.

Josh Duggar, his wife and lawyer team leave the Federal Courthouse in Fayetteville, Arkansas an hour after court adjourned. Duggar looks back at the camera. | KNWA Photo

He additionally noted that multiple cases have approved introducing this type of evidence and that Duggar’s prior acts could be “highly probative” in relation to his current propensity to commit certain acts.

The judge acknowledged taking “a fairly deep dive” on rule 414, finding “pretty strong case law” to admit the prior acts of molestation as evidence. He noted that the 8th circuit has never reversed a case of admitting it, while one case was reversed for not admitting such evidence.

Adding that this trial may be “more sensationalized” than other cases, the judge decided that he will take the competing motions under advisement.

Judge Brooks scheduled an evidentiary hearing including the witnesses at issue for November 29. Jury selection is scheduled to begin on November 30 at the Western District of Arkansas Court.

Duggar faces up to 20 years in prison and fines of up to $250,000 on each count if convicted.

This story is developing and will be updated.

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