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  • Writer's pictureDavid A. Cmelik Law PLC

Hearsay rule on trial in Iowa criminal appeal

Microphone for recording statements
Recorded statements are hearsay. Most are inadmissible but exceptions apply, including prior inconsistent statements. Prosecutors sometimes play recorded statements that would otherwise be inadmissible hearsay to impeach witnesses. The Turecek rule states that prosecutors may not exclusively call a witness to impeach her with a prior inconsistent statement to get around the hearsay rule.

The Iowa Supreme Court yesterday issued an opinion interpreting a rule designed to prevent prosecutors from calling their own witness simply to play their recorded hearsay statements. One justice believes this rule should be struck. All of the others believe a prosecutor followed the rule in the Swift case, decided yesterday, thus rejecting the appeal and allowing a conviction for attempted murder to stand.

The rule is important because it prevents prosecutors from maneuvering in the courtroom to get recorded hearsay statements in front of the jury through an exception called prior inconsistent statements, particularly from reluctant witnesses likely to recant or be unsure.

In the Swift case, police accused the defendant of shooting his girlfriend while she drove away in an SUV after the two argued. A witness saw someone running away and police later captured the defendant, who claimed he was elsewhere.

The gunshot victim survived and met with a detective, stating, among other things, “I know the guy in front of my car was [the Defendant].” At trial, she apparently waivered and the prosecutor said he had to impeach her by playing in front of the jury her recorded statements. The defendant’s lawyer objected, stating that the prosecutor was “trying to impeach his own witness.” The jury convicted the defendant. The defendant appealed and the case was transferred from the Iowa Supreme Court to the Court of Appeals, a lower appellate court in Iowa, and it affirmed the conviction. The defendant requested further review before the Iowa Supreme Court. The Court granted same.

On direct criminal appeal, the defendant argued that the prosecutor knew the gunshot victim was unsure and that the State improperly called the witness merely to play recordings of her before the jury—otherwise inadmissible hearsay. The appeal noted that the State also did this with two other witnesses during the trial.

Under the Turecek rule, a prosecutor may not call a witness merely as a tool to present otherwise inadmissible hearsay evidence before the jury.

Writing for the Court, Justice McDermott noted that it was merely an assumption that the State “knew” the defendant’s girlfriend would recant. Moreover, there were also good reasons to call her other than to impeach her—testimony regarding the extent of her injuries was required to show that the defendant committed the offense.

The Court noted the danger of allowing prosecutors to impeach their own witnesses, writing, “[p]articularly in a criminal case, permitting impeachment with inadmissible hearsay risks the jury relying on the impeachment evidence for the truth of the matters asserted—as substantive evidence—and not as an attack on the witness’s credibility or another permitted use of impeachment evidence.” The Court went on to say that prosecutors may use impeachment “as a shield and not a sword.” However, it refused to hamstring prosecutors who may wish to call witnesses for purposes other than impeachment even if there is a risk they will be hostile to some aspects of their case—ultimately requiring impeachment.

In Swift, the Court ultimately found that there were those other good reasons to call the girlfriend and that, even though the State did impeach its own star witness, it did not exclusively call the witness to do that and it was not apparently a scheme to get the hearsay in front of the jury.

“Calling a witness with a mix of expected testimony—some helpful, some damaging (and thus requiring impeachment)—does not create a Turecek violation because the primary purpose for calling the witness is not to place otherwise inadmissible evidence before the fact finder,” wrote Justice McDermott.

Justice McDonald wrote separately to state that it is time to stop putting prosecutors on trial for their subjective motivations in calling witnesses:

“When did the prosecutor meet with the witnesses? What was said? Was the prosecutor aware the witnesses would recant? If so, did the prosecutor believe the witnesses would provide enough helpful testimony such that it could be said the prosecutor’s primary purpose was to admit the helpful testimony with a secondary purpose of impeaching the witness? While these questions necessarily arise out of Turecek jurisprudence, as presently understood, these questions are misguided,” wrote Justice McDonald.

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

If you or a loved one have been arrested in Cedar Rapids, Iowa City, or other Iowa community for a criminal offense, contact us for a free initial consultation.


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