The so-called "smirk" that Colorado theater shooting suspect James Holmes allegedly gave to investigators shortly after the shooting is too ambiguous to be presented at trial, ruled district court Judge Carlos Samour.
The Denver Post reports that while Samour won't allow jurors to hear about the facial expression authorities testifed Holmes gave in response to a question about whether there was another shooter in the theater, Samour will allow evidence from Holmes' wallet to be heard during trial.
Shortly after Holmes' arrest, Aurora police officer Justin Grizzle testified that he gave "a self-satisfying, offensive smirk," but that description drew an objection from Holmes' defense.
"This was nothing more than silence, and it should be analyzed as such," defense lawyer Kristen Nelson said.
Samour agreed, that the expression was too ambiguous to be evidence and was protected by Holmes' right to remain silent.
Holmes' defense had also tried to keep Holmes' wallet from being entered as evidence, but on that point Samour disagreed.
"Because the retrieval of the wallet and the searches that followed... were incident to lawful arrest, no warrant was required to avoid running afoul of the Fourth Amendment," Samour wrote in a separate order about the wallet.
As The Denver Post points out, that could mean that Holmes' credit card information could be allowed at trial too.
Earlier this week, Holmes' defense attorneys also argued that police illegally entered Holmes' apartment when they utilized a bomb robot without a warrant in the hours and days after the shooting. Since the apartment was entered without a search warrant they say, evidence including the explosives that Holmes had allegedly booby-trapped it with, should not be used against him.
Holmes has pleaded not guilty by reason of insanity to 166 counts of murder, attempted murder and other charges for the July 20 shooting at the midnight screening of "Batman: The Dark Knight Rises."
In another filing that was made public on Tuesday Holmes' defense attorneys asked for more time to file roughly six more motions pertaining to Holmes' psychiatric evaluation.
"These motions involve very important and complex legal issues, many of which pertain to the death penalty and mental illness, and have never been filed or litigated before in the state of Colorado," reads the filing.
Prosecutors are seeking the death penalty, but to have Holmes executed they must prove to the jury that Holmes was legally sane at the time of the shootings.
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