BOISE, Idaho — After the prosecution rested in Lori Vallow Daybell's case on Tuesday, the defense rested, too, but without calling witnesses or presenting evidence.
Each side "rests" when they are done presenting evidence and calling witnesses to the stand.
Vallow is charged with murder, conspiracy and grand theft in the deaths of her children, Tylee Ryan and JJ Vallow, as well as conspiracy in the death of her husband's former wife, Tammy Daybell.
During the five weeks of testimony, the prosecution called 60 witnesses to the stand. Those witnesses were a mix of Lori's family, friends, law enforcement and investigators throughout Idaho, Utah and Arizona.
When the defense rested, it claimed the state did not prove its case against Lori. Dave Leroy, defense attorney and former Idaho attorney general, said not presenting evidence or calling witnesses is not "uncommon," yet slightly surprising considering the length of the case.
"It minimizes the chance of any surprise or problem in the defense case because the defendant is not subjected, therefore, to cross-examination by the prosecution on any points of sensitivity," Leroy said.
Essentially, not calling witnesses or presenting evidence is a "protective approach." He said it is also a good strategy because it precludes the prosecution from putting on a rebuttal case, making counterpoints to whatever the defense offers.
If the defense did call witnesses, they could have put Lori on the stand. However, Leroy said, ultimately, that was her decision.
If she decided to testify, he said there might have been a lot of potential problems the state would have anticipated.
"It was highly likely in a case like this, where there are extreme sensitivities to her being called if she were to be called in cross-examination about phone messages about text messages, about why she did not say anything for five months, about being concerned about her children's whereabouts," Leroy said.
Final arguments start Thursday morning. After that, the jury starts deliberating. There's no time limit for that, but Leroy said he expects it will take at least two days.
The jury has to unanimously agree.
The defense also filed a motion for acquittal yesterday after they claimed the state did not prove its case. Leroy said the judge will likely rule on that Thursday morning as well.
He said acquittals are extremely rare because they remove the jury's role in court. It has nothing to do with the defense; the judge looks solely at whether the prosecution gave a factual basis for the charges.
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