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  • Writer's pictureDavid A. Cmelik Law PLC

Iowa appeals court: witness tampering forfeits right to confront accuser

old school landline handset
They're listening: the jail recorded the Harding defendant's calls as well as the calls he allegedly attempted through three other inmates to urge an alleged victim to avoid service of a jury trial subpoena.

The Iowa Court of Appeals decided today the direct criminal appeal of State v. Markus Harding. In Harding, the court examined the purported “forfeiture by wrongdoing” exception to the right to confront one’s accuser in a criminal jury trial.

The theory of forfeiture by wrongdoing is basically this: a criminal defendant who urges a witness to avoid testifying or otherwise tampers with a witness to get them to refuse or change their testimony may not later complain that the witness is absent pursuant to the constitutional right to confront one’s accuser. If a defendant forfeits the right to confront her accuser, earlier collected hearsay statements can be introduced without the witness being present. Typically, criminal defense lawyers challenge such a denial of the right to confront.

In Harding, the defendant appealed criminal convictions for first degree burglary, domestic abuse assault while displaying a dangerous weapon, false imprisonment, and fourth degree theft. The star witness in the case was absent but her hearsay statements were introduced over the confrontation clause objection of the defendant.

The State had earlier notified the court and the defendant that it intended to rely on such evidence. It alleged that the defendant from inside the jail repeatedly contacted the alleged victim in the case to urge and, it further argued, threaten her, to move and otherwise avoid service of a trial subpoena.

Prior to the trial, defendant was being housed in the Black Hawk County Jail. The jail recorded all incoming and outgoing calls and made them available to prosecutors in this case. They also recorded other inmates’ calls and surmised that the Harding defendant was contacting the alleged victim in his case through three other inmates to threaten and tamper with her as a witness.

According to the Court, the State alleged that the defendant told her to flee to a neighbor’s house to avoid being subpoenaed, that she would be arrested and jailed if she did not flee, and that if she were found in contempt, that would be nothing to worry about. The witness avoided service for over a month but was eventually subpoenaed. Nevertheless, she failed to show up for court.

According to the State’s Notice of Intent to Rely on Forfeiture by Wrongdoing at the district court level, the Defendant enlisted three separate inmates to contact the chief complaining witness in the Harding defendant’s prosecution, alleging that the messages were as follows:

“He says you better not show up for court at all”

Background voice: “Don’t come to court at all”

“Bros said you talk to them people”

Background: yelling in the background

“He says stay in the crib tonight…stay in the crib tonight.”

The State relied on four cases in its notice for the proposition that a defendant could forfeit the right to confrontation including Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), Giles v. California, 554 U.S. 353 (2008), and State v. Campbell, 838 N.W.2d 869 (Iowa Ct. App. 2013)(unpublished).

In Giles v. Crawford, the Court held that forfeiture by wrongdoing exception to the confrontation clause only applies to “situations where the defendant causes the witness’s absence with the intention of preventing the witness from testifying at trial.” See Giles v. California, Oyez, (last visited Aug 6, 2020). Essentially, it held that the defendant shot his girlfriend for reasons other than avoiding her testimony at trial.

Justice Scalia wrote the Giles opinion. Therein, he detailed the common-law doctrine of forfeiture by wrongdoing, e.g., permitting hearsay statements of witness’s made absent by the defendant’s own wrongdoing.

Wrote Justice Scalia, “[t]he terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying. The rule required the witness to have been ‘kept back’ or ‘detained’ by “means or procurement” of the defendant. Although there are definitions of “procure” and “procurement” that would merely require that a defendant have caused the witness’s absence, other definitions would limit the causality to one that was designed to bring about the result ‘procured.’” Id.

In State v. Campbell, an unpublished Iowa Court of Appeals case cited by the State at the district court level in Harding, the Court of Appeals quoted a previous United States Supreme Court opinion in Davis. The Campbell opinion lasered in on language in the Davis decision that recognized that, “[t]his particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial.”

The Harding court did not discuss whether the offered testimony should be spontaneous and produced for a reason other than to bolster the prosecution, called “non-testimonial” evidence.

In State v. Bentley, the Iowa Supreme Court grappled with whether admission into evidence of so-called “forensic interviews” of a child abuse victim who was deceased at the time of trial violated the confrontation clause. It found that the “testimonial” video recording was created to bolster the prosecution and, therefore, that its admission violated the Confrontation Clause.

In short, the State must prove that a defendant has engaged in witness tampering intended to keep a witness from testifying before the witness’s hearsay statements can be used without violating the Confrontation Clause. These statements also cannot be an extension of the trial process itself—interrogations or officious eyewitness interviews mostly directed by the police to bolster the prosecution (e.g., “testimonial”).

NOTE: David A. Cmelik Law PLC had no involvement in the Harding case.

If you or a loved one have been arrested for a criminal offense in Cedar Rapids, Iowa City, or other Iowa community, contact David A. Cmelik Law PLC. Criminal law is all we do. Contact us today. But remember that a blog is not legal advice and that no attorney-client relationship is established by sending a lawyer unsolicited information over the Internet.


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