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Iowa high court: No grand jury subpoenas for Defense experts


February 14, 2020—In a complex criminal law ruling, the Iowa Supreme Court held a prosecutor cannot subpoena a criminal defense expert for grand jury testimony in an already-ongoing felony neglect case. The Supreme Court, however, held that the grand jury could nevertheless proceed during the case. It further held the prosecutor could stay in despite complaints the subpoena and prosecutorial contact with the defense expert were unethical.

In Grand Jury vs. John Doe, the State charged the defendant with felony neglect. During the case, the defense retained an expert to render an opinion. During plea negotiations, the attorney allegedly revealed the name of the expert and urged a resolution arguing the expert opinion would be favorable to the defendant. The prosecutor contacted the defense expert to verify this account but the expert refused to talk to the prosecutor. The prosecutor then issued a grand jury subpoena to force the expert to come to court and testify as to their opinion.

Defense counsel got wind of this grand jury attempt and moved to delay it and, ultimately, to stop it. It also moved to disqualify the prosecutor for what it deemed was unethical conduct. The district court rejected all of the defendant's claims, stating the grand jury could continue, the expert witness could be summoned to testify therein, and the prosecutor would not be disqualified. The defense filed an emergency, or, interlocutory, appeal with the Iowa Supreme Court.

The defense argued that the prosecutor was improperly using the grand jury process to find out the defense strategy. The defendant had not yet named its expert as a witness. Under Iowa criminal rules, only following defense depositions can the State conduct questioning of the designated defense witnesses before trial and under oath at its own expense. The prosecutor instead issued a grand jury subpoena which is normally used to initiate a criminal prosecution. In this case, the prosecution had already begun. The Iowa Supreme Court agreed that the prosecutor could not issue a grand jury subpoena to a defense expert who had not yet been formally designated as a witness. The Court also indicated that pre-designation conversations between the defense attorney and the expert were privileged work product, or, confidential. In this case, however, the defense attorney had already allegedly volunteered the name of the expert and suggested to the prosecutor that the expert's opinion would be helpful to the defendant. The defense attorney said such conversations were protected, confidential plea negotiations between defense counsel and the prosecutor that could not be used to advance the prosecution. The State argued defense counsel had waived privilege in the expert's identity and opinion by revealing it in plea negotiations.

The Court rejected both arguments, stating that plea negotiations were not confidential nor protected- - but that statements the lawyers made during plea negotiations were merely inadmissible in court and discussion of the expert's opinion in plea bargaining wasn't "waiver" of the work product privilege, either. The Court reasoned:

“Here, the only way the State can show that [defense counsel] waived the work-product doctrine would be to use his statement in plea negotiations. Plea discussions themselves are not admissible. Iowa R. Crim. P. 2.10(5). As a result, the State cannot use the statement made by [defense counsel] to prosecutors to establish the necessary foundation for waiver. Thus, Doe is entitled to press their work product claim in its entirety.”

This is complex-- but it means that the Iowa Supreme Court is quashing the subpoena for the defense expert during grand jury proceedings. The defendant won on that front.

The defense also levied challenges against the grand jury process itself alleging that it did not contain a racially diverse cross section of the community. The defense attempted to continue, or, delay the grand jury proceeding and, ultimately, to quash it. The high court said that the grand jury would continue but would be subject to any such cross-section of the community challenges. Thus, the court put that issue on pause while the grand jury process is allowed to move forward.

The Supreme Court remanded the case back down to the district court for rulings consistent with its opinions.

Justice McDonald concurred in part and dissented in part. The dissent noted that the Iowa Supreme Court must review the kind of decision it was overturning with a highly deferential "abuse of discretion" standard. On the issue of quashing the subpoena for defense expert's grand jury testimony, Justice McDonald wrote that the Supreme Court merely disagreed with the decision not that the district court had abused its discretion somehow. The dissent recounted some history of grand juries, as did the majority opinion. Therein, Justice McDonald indicated that the grand jury had broad purpose and was entitled to "every man's evidence." Thus a subpoena for a witness of any kind wasn't necessarily an abuse of discretion. It would depend on the facts and the nuances of any privilege a witness invoked. McDonald wrote:

"I disagree with the majority opinion’s apparent conclusion that a target or witness’s assertion of the work-product protection requires that a grand jury subpoena be quashed. The application and scope of the work-product doctrine is nuanced and fact specific. Nowhere is this truer than in a grand jury investigation."

NOTE: David A. Cmelik Law PLC had no involvement in this John Doe grand jury case.

If you or a loved one have been arrested for a criminal offense in Cedar Rapids, Iowa City, or other Iowa community, contact us for a free initial consultation. However, remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.

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