*1 Iowa, Appellee, STATE NEIDERBACH, Dorian
Appellant. 11-1082.
No. Iowa.
Supreme Court 23, 2013.
Aug. Rehearing on Denial
As Amended 8, 2013.
Oct. 22, Nov.
As Corrected
review and for further proceedings consis- tent opinion. with this Background I. Facts and Proceed- ings.
“We recite the facts in the light most favorable to the Garcia, verdict.” State v. (Iowa 2000). E.N. May was born on parents, His Jherica, Jonas and were age twenty at that Gary Dickey D. Angela Jr. and L. time and living parents, Jonas’s Jon Campbell Dickey & Campbell Law Firm Mary Neiderbach. Although E.N. P.L.C., Moines, Des appellant. for was full term and appeared healthy over- Miller, General, Thomas J. Attorney all, he spent the first days four following Tauber, Thomas S. Assistant Attorney his birth in the neonatal intensive care unit General, Sarcone, John P. County Attor- (NICU) physicians because his feared he Foritano, ney, and Steven M. Nan M. Hor- aspirated have fecal matter in útero. vat, Noble, Jeffrey K. Assistant Coun- In addition to this potentially life-threaten- ty Attorneys, appellee. concern, ing E.N. was born with the umbil- ical wrapped neck, cord around his exhibit WATERMAN, Justice. activity, ed tremor and did not feed well. A County jury Polk found Jonas Neider- E.N. positive also tested marijuana guilty bach of six counts of child endanger- birth, which triggered a notification to the ment, and the district court imposed a Iowa Department of Human Services fifty-year prison sentence. The victim is (DHS). son, E.N., his who was less than seven arm, weeks old when he suffered a broken parents new brought baby E.N. fractures, fifteen rib a permanent home to the Neiderbach residence. brain injury over a period. three-week light positive test, marijuana DHS mother, Richardson, The victim’s Jherica provided the family visiting with a nurse pled guilty to child endangerment and is who came to the biweekly house on a basis *8 serving twenty-year a prison sentence. to Check on the baby and to ques- answer appeals Jonas his convictions on numerous by tions. E.N. was seen either the visiting grounds. follow, For the reasons that we nurse or his pediatrician four times during vacate his convictions toas two counts for the first two weeks after he left the hospi- baby’s the broken ribs because we find the appeared tal and healthy at each visit. evidence insufficient. We also find the evening On the of June E.N. district court erred in vomited denying Jonas’s mo- coughed aup tion for an in small amount of camera review of blood. Jherica’s The next morning, mental health Jonas and Jherica records under took Iowa Code 622.10(4) him section to a clinic. The (Supp.2011), baby diagnosed a was statute we uphold today as with acid reflux prescribed constitutional in State v. and was Zan- (Iowa Thompson, tac. The visiting nurse came to check in 2013). later, We affirm the on E.N. days district court on all three and he appeared other issues. We remand the case for the normal with the coughing vomiting perform district court to an in camera blood resolved. later, physician next a on E.N. E.N. was seen on June was days
Five rushed him July time for a when Jonas and Jherica hospital again the taken to —this Jonas, breathing. hospital stopped That Jheri- after he morning, arm. to the broken afternoon, Jonas, Jherica, ca, paper and E.N. E.N. returned from Jonas’s That errands, E.N. awak- baby asleep. the home includ- with had returned from route him to Jherica handed Jonas crying. visiting ened Jonas’s father and Jherica’s ing Jon, Richardson, She prepare mother, room bottle. and left the to at work. Connie to a scream baby’s Connie, cries escalate heard the their noted E.N. coworkers the bed lying to E.N. on and returned find was healthy day. E.N. appeared that arm his head and right home; above his they with his how- when returned sleeping him. Jonas stood limp arm beside ever, left crying. Jherica he soon awakened baby. told Jherica that over the Jonas he was not baby, to feed the but tried became behind his back pinned E.N.’s arm to bottle. handed E.N. taking his Jherica laid him the bed and he as Jonas on to smoke a Jonas while she went outside wheth- pop. heard a Jherica checked had cigarette. with finger could her his grasp er E.N. she heard Jherica was outside when could not.
hand and found that he stop three crying abruptly, E.N.’s within E.N. to and Jherica took the Jonas five minutes had handed to after she phy- attending room emergency where inside, infant to Jonas. As she returned baby had sician determined holding walking was the stairs Jonas down humerus, upper fracture of spiral his E.N. was still. crying; E.N. Jonas over- hospitalized E.N. was arm bone. stopped Jonas told Jherica that E.N. had signs for other night to examined yellowish breathing. Jherica noticed hospital injury reported abuse. The mouth. oozing E.N.’s substance from DHS. she cleared mouth as best Jherica his could, baby but the not resume breath- did Tyler Tim
DHS notified Detective
Jherica
her mother
to ask
ing.
called
who
Department
Moines Police
came
Des
do and
to take E.N.
what to
was told
DHS workers to
hospital
to the
with two
to the liv-
hospital.
Jherica returned
Jonas,
attending physician,
interview
E.N.
ing
shaking
room and saw Jonas
story
repeated
and Jherica.
Jonas
he
saying,
you f-
“Why
while
aren’t
Jherica
the doctor.
Jonas
had told
breathing?”
yelled
Jherica
at Jonas
were
instructed
separately
and Jherica
they
told him
take
stop and
should
safety
would be a
going
forward there
re-
hospital.
initially
E.N.
under
would not
plan
place
which Jonas
mentioning
go
hospital,
fused to
alone
E.N.
be allowed
time,”
“third
con-
was the
but Jherica
hospital
discharge
After his
from
go together.
vinced him to
pediatrician,
E.N. was seen
his
June
*9
into
strapped
from his broken
Jonas and Jherica
E.N.
Dr. Eric Andersen. Aside
arm,
good
emergency
in
car seat and drove to the
appeared
E.N.
to be
health.
his
Hospital. Upon
Blank
since his last
room at
Children’s
gained
pounds
He had
two
they told
that E.N. had
during
remained
the exami-
arrival
Dr.
visit and
calm
Carlin
Lindaman,
screamed,
and then
Lynn
pedia-
gasping,
Dr.
E.N.’s
started
nation.
breathing
phy-
E.N.’s
again
stopped
altogether.
E.N.
orthopedic surgeon,
tric
saw
baby with subdural
diagnosed
sicians
follow-up appointment
June 26 for
his
brain, fif-
on both
of his
arm. Dr. Lindaman found E.N.’s
hematomas
sides
broken
(some
and some
rib fractures
old
healing
good alignment.
arm to be
teen
new),
They
and the broken arm.
also agreed to recommend that Jherica receive
hypoxic
injury,
found a
ischemic
which is
a total sentence of twenty years in prison.
damage
oxygen.
to the brain due to lack of
The State amended its trial information
Ekhardt,
Tracy
pediatric
Dr.
E.N.’s
criti-
on March
to drop Jherica as a codefen-
specialist,
cal care
determined E.N.’s dant and eliminate one count of child en-
injury
“brain
was due to a force to his dangerment.
jury
The
trial began May
head” and that
explanation that
“[t]he
trial,
2011. During
the State dismissed
got
family
from the
was not
[she]
consis-
two more counts. The balance of the case
tent with the amount of force that would was
jury
submitted to the
on May 18. On
be needed to
that damage
cause
to his
May
deliberation,
days
after two
head.”
jury
guilty
found Jonas
on all six remain-
ing counts. The district court sentenced
E.N.
hospitalized
seven weeks and
years
fifty
prison.
Jonas to
nursing
then was transferred to a
home
Jonas appealed, and we
ap-
retained his
needs,
special
for children with
where he
peal. Additional
procedural
facts and
his-
the next
spent
five months. Jherica’s sis-
tory
provided
will be
in the discussion of
ter,
Nelson,
Shannon
and Shannon’s hus-
specific issues below.
adopted
band
E.N.
November 2009.
E.N.
legs
remains unable to move his
Appeal.
II.
Issues Raised on
only barely
can
move his arms. He can
Jonas raises the following issues on ap
side,
move his head side to
but cannot hold
(1)
peal:
whether the district court erred
up
his head
on his own. E.N.
is also
by failing to dismiss counts two through
verbally,
unable to communicate
has
six as lesser included offenses of count one
stomach,
feeding tube in his
and a tra-
pursuant to Iowa Rule of Criminal Proce
cheostomy tube that requires regular suc-
2.6(1)
by
dure
failing
grant
his mo
tioning. Doctors expect
significant
no
im-
(2)
counts;
tion to sever those
whether the
provement in E.N.’s condition.
district court violated
due process
Jonas’s
information,
The State’s initial trial
filed rights by refusing to issue a subpoena for
August
charged Jonas and Jherica with Jherica’s mental health
sought
records
eight
endangerment,
counts of child
in vio- exculpatory evidence under State v. Cash
(2009),
lation of Iowa
section
Code
726.6
en,
(Iowa 2010),
190 of hear- her in- view the court’s admission prior as to district of Jherica examination law, health ‘when say on mental evidence for errors at statements consistent (7) prosecutor treatment; hearsay whether of evidence is basis for admission testimony requiring a expert opinion employ rule ... we will expert misstated ” (8) trial; Stenzel, the district court whether new of discretion standard.’ abuse aiding and abet- by submitting the erred at 697 Kurth v. Iowa (quoting 827 N.W.2d (9) (Iowa instruction; weight 1, of whether ting Dep’t Transp., 628 5 N.W.2d of jury’s 2001)). contrary the evidence (10) six; on counts three verdicts allegations Our review of of sup- sufficient to the evidence was
whether is for abuse of prosecutorial misconduct on counts four and the convictions port v. Krogmann, State 804 discretion. five. (Iowa 2011). 518, 523 We review N.W.2d Scope Review. III. of there was sufficient evidence to whether jury submission of a instruction Our motions to dismiss warrant review of at re for of errors at law. See State for correction of errors law. correction 2007). (Iowa (Iowa Stenzel, 690, Smith, 289, v. N.W.2d 293 Det. 827 N.W.2d 697 739 2013). ruling court’s of a a district We review a trial denial We review court’s to contrary motion to sever abuse defendant’s whether a verdict was Elston, weight discretion. State v. 735 N.W.2d abuse of discre of the evidence for (Iowa 2007). Reeves, 196, 198 199, tion. v. 670 N.W.2d 203 State (Iowa 2003). challenges to the We review We constitutional issues review correction of sufficiency of evidence for Pearson, v. 804 de novo. See State Hearn, v. at law. State errors 2011) (‘We (Iowa 260, review N.W.2d 265 2011). (Iowa sup court’s refusal to de novo district press allegedly statements made in viola IV. Dismissal Severance safeguards.”); State tion of constitutional Through Two Six Pursu- Counts (Iowa Wells,
v. 218-19 N.W.2d ant to Iowa Rule of Criminal 2007) novo defendant’s claim (reviewing de 2.6(1). Procedure hearsay testimony that admission violat right ed his Sixth Amendment to confront A. appeals Motion to Dismiss. him). against Discovery rulings a witness motion the district court’s denial of his challenged grounds on constitutional are through dismiss counts two six. The Cashen, de reviewed novo. N.W.2d trial information State’s amended filed (“Because in this the issues case rest 29, 2011, charged April Jonas with these involving constitutional claims on Cashen’s endangerment: six counts of child defense, process right present due our Multiple child endan- Count 1: acts of novo.”). de review is Nonconstitutional germent in violation Iowa sec- Code discovery rulings re challenges are tion 726.6A. (“Ordi viewed abuse of discretion. Id. narily, discovery we for an review orders 2: result- endangerment Count Child discretion.”). 8, 2009, ing injury July abuse of in a brain 726.6(1). violation of Iowa Code section
We the district court’s ev- review identiary endangerment abuse of 3: Child result- rulings for discretion. Count Huston, ing arm on N.W.2d in a broken June State 726.6(1). 2013). (Iowa “Although generally we re- violation of Iowa Code section *11 4: endangerment causing Count Child fenses of the multiple acts of child endan- 17-30, 2009, rib fractures from June in germent charged in count one. See State 726.6(1). Iowa Hickman, violation of Code section 367 n. 1 (Iowa 1998). endangerment causing Count 5: Child 1-8, 2009, July fractures from in rib court, however, The district reached a 726.6(1).
violation of Iowa Code section different conclusion based on its reading of endangerment by 6: will- Count Child two decisions our court of appeals: fully depriving a child of health care for Flanders, (Iowa State v. N.W.2d 2-8, 2009, July fractured ribs between in Arends, and Ct.App.1996), State v. No. 03- 726.6(1). violation of Iowa section Code (Iowa 2004 WL Ct.App. May 2004) (unpublished opinion). In Flan contends the State’s trial informa- ders, appeals court of considered tion violates Iowa Rule of Criminal Proce- whether second-degree 2.6(1), sexual abuse was a which dure states: lesser included offense of first-degree kid Two or more public indictable offenses napping. 546 N.W.2d 224. The defen which arise from the same transaction dant had been convicted of one count of or occurrence or from two or more second-degree sexual abuse and one count constituting transactions occurrences of first-degree kidnapping. Id. The court parts of a common plan, scheme or when that, noted although sexual abuse can be a alleged prosecuted and contemporane- lesser included offense of kidnapping, it ously, alleged shall be and prosecuted as every not be case. Id. at 224-25. separate counts in a single complaint, This is because “[t]he lesser-included of indictment, unless, information or analysis fense addresses situations where shown, good cause the trial court its multiple charges apply to a single occur discretion determines otherwise. Where rence. Where the alleged acts occur sepa public offense carries with it certain rately offenses, and constitute distinct offenses, lesser included the latter there can complaint be no one ais lesser- charged, should not be and it is suffi- included offense of the other.” Id. at 224. charge cient to that the accused commit- Thus, if alleged the State the “defendant major ted the offense. had committed at separate least two Jonas focuses on the last sentence of the abuse, distinct only acts sexual one rule, prohibits charging which lesser in- of those acts formed the basis for the along major cluded offenses with the of- kidnapping charge,” only then one of the argues fense. Jonas the State’s trial infor- charges sexual abuse would be a lesser mation violates this rule because it would included offense of kidnapping charge. “impossible greater to commit the of- Id. at 225. Endangerment fense of Child under [Iowa 726.6A ... section] Code without also com- The district court seized on this lan- Arends, mitting the offenses 2 guage set forth Counts which the district court McNitt, through 6.” See State v. interpreted to hold that “where defendant 1990) (Iowa (“A N.W.2d charged lesser with Multiple Acts of Child necessarily offense is included in Endangerment supporting evidence is greater if greater presented offense offense can- injured child was on at occasions, not be committed committing separate without also least three the lesser lesser.”). analysis The State concedes the child apply.” included does not court, endangerment charged however, offenses misapprehended counts district through two six are lesser holding included of- of Arends. The Arends court *12 separat- 726.6A “must be charge individual child a section consider whether
did not incident place are lesser included time and so that each counts ed endangerment Yeo, multiple acts of charge distinct,” of a of separate offenses and State is rather, (Iowa that court endangerment; 2003), child the individu- N.W.2d of child “the crime considered whether endangerment are not al child offenses included offense is a lesser endangerment the multi- separate and distinct from also WL involuntary manslaughter.” of offense. ple-acts 1159730,at *5. example, a scenario imagine For lesser- agree
We that “[t]he a defendant with charges which the state situa analysis offense addresses included multiple of child endan- one count of acts to a multiple charges apply where tions and three counts of child endan- germent alleged occurrence. Where acts single arm, causing leg, a broken germent broken distinct of separately occur and constitute injury.1 proves a brain The state fenses, complaint can no one is a there arm, leg, causing acts broken broken of the other.” lesser-included offense time injury “separated by and brain were Flanders, pres at 224. In the N.W.2d separate so that each incident is place case, however, major offense and ent lesser Although and distinct.” the three over offenses involve the lesser included separate are distinct from offenses lapping acts. other, they not mean that each does multi- separate are from the distinct provides Section 726.6A a They, in ple-acts they support. offense felony if guilty of a class “B” person fact, hypothetical, not. are Under this person prove could not the defendant com- state engages in a course conduct includ- multiple endangerment mitted acts child or child endan- ing three more acts of com- proving without also the defendant germent in section 726.6 defined child mitted each of the three counts of period months involv- within of twelve McNitt, ..., See endangerment. ing the same child where one or (“A necessarily in a at 825 lesser more of acts results serious offense injury to the ... results in greater child included in the offense if the injury age under the skeletal child with- greater offense cannot be committed years.... lesser.”). of four committing out also Accordingly, same is true this case.2 (2009) § (emphasis Iowa Code 726.6A add- endanger- the individual of child counts ed). Thus, one element of this offense are alleged through ment two six counts requires the State prove defendant included the first count’s lesser offenses of en- committed three or more acts of child multiple endanger- child charge Al- acts of dangerment under section 726.6. though the three acts ment. supporting or more simply in- simplicity, the sake of we assume differ this case 1. For should because requirements meets state also the other charges en- volved more than three of child n 726.6A. section dangerment under 726.6. See Iowa section (noting applies § when “[a] Code 726.6A Although it is true that the State engages person ... in a course of conduct prove required to all five of Jonas committed including three or of child endan- more acts endangerment the individual of child counts germent within a as defined in section 726.6 multiple he prove committed acts child added)). (emphasis period of twelve months” analysis endangerment, we do not believe the
Thus, applying required jury the last sentence of rule the reconsider it issues already had in 2.6(1), determining the al- decided five lesser included offenses wheth- guilty major er Jonas was of the counts not offense— through in two six should leged for example, whether he caused in- E.N.’s charged suffi- have been because “it [was] jury. interpretation This all gives effect to charge that the cient to accused committed 2.6(1). language of the rule According- major offense.” Iowa R.Crim. P. the See ly, we hold the district court erred not 2.6(3). event, any court the district dismissing counts two through six of the the required jury, “to instruct would trial information as lesser of- included only public charged as to the offense major the Only fenses. offense under sec- to all offenses which the but as lesser tion 726.6A be charged. should might be under the guilty accused found ad- upon indictment the evidence We now turn to consider 2.6(3). Id. r. duced.” prejudiced whether this error the defen dant. a “When nonconstitutional error State require The contends to claimed, case, in this the test is whether only multiple a defendant charge with the rights the objecting party have been endangerment child be “cum- acts of would by ‘injuriously affected the error’ bersome, practical confusing, and of no party whether the has ‘suffered a miscar because value” Parker, riage justice.’” State v. would have had to instruct [the court] (Iowa 2008) N.W.2d (quoting State jurors guilt to consider Neiderbach’s (Iowa Sullivan, v. require Count 1—which in- under would 2004)). This case involves multiplicity, offenses, structions on all the underlying charging single which is “the of a offense findings would also require jury one more than count.” United States Further, concerning all those offenses. (11th Langford, 946 F.2d Cir. court would have had to instruct 1991). Two concerns arise from multiplici- that, jurors if the acquitted Neiderbach “First, may tous counts: the defendant 1, they under Count should determine receive multiple sentences for the same guilt underlying Neiderbach’s of- Second, multiplicitous offense. indict jurors would require fenses—which may prejudice ment improperly jury already they to reconsider issues decid- a defendant suggesting that has committed ed. several crimes—not one.” Id. In Langford, to see how practical We fail these consid- the Eleventh Circuit held a defendant had differ from circum- erations other been charged multiplicitous counts. when a with a charged stance defendant is The argued Id. at 804. defendant offense major and is instructed lesser should three counts be reversed because offenses. Taking included this case as they “improperly prejudiced jury had charged on count example, two Jonas was that the suggesting defendant commit endangerment causing with child serious several ted not one but crimes.” Id. The in violation of section injury Iowa Code court, however, emphasized that “[t]he 726.6(5). jury un- also instructed ... is ... principal danger that the defen two der count as to two lesser included multiple dant receive sentences for a endangerment causing offenses—child single Significantly, Id. offense.” bodily injury in violation of Iowa Code Eleventh held the defendant had Circuit 726.6(6) endangerment section and child prejudiced by multiplicitous not been 726.6(7). indictment, actually of Iowa though violation Code section even he had lesser have on all three counts These included offenses would received sentences be- requests mental records of the to run concur- health those sentences were cause self-defense, victim, claiming inap- and is rently. Id. 804-05. a codefendant’s plicable to efforts obtain primary risk of agree that We pre- During mental health records. multiplicitous in from prejudice arising case, legisla- *14 in the trial this proceedings could receive is that a defendant dictment 291, which passed ture Senate File took single for a offense. multiple sentences March upon effect its enactment on case, however, prejudice re no such this 2011 Iowa Acts ch. 8. Senate See merged court because the district sulted File adding 291 amended section 622.10 through two six on counts his convictions following the subsection: him on that count one and sentenced into guilty sep found count. Jonas was one as Except provided 4. a. otherwise chargeable sepa that subsection, arate acts were in confidentiality this the 726.6, but when rate crimes under section this shall be privilege under section ab- combined, also violated section 726.6A.Un regard solute with to a criminal action circumstances, there no un der these was shall be construed to this section not he had appearance fair that committed require the disclosure of authorize According crimes.” “not one but several any to a defendant in privileged records prejudiced. we hold was not ly, a action either of criminal unless the following occur: B. to Sever. Jonas also Motion the court’s denial of his appeals district (1) privilege voluntarily The holder through to sever counts two six. motion confidentiality privilege. the waives the victim All counts involved same the (2) (a) seeking The defendant access occurring acts within several weeks. under this section privileged records in be A defendant some circumstances good demonstrating files a motion prejudice to a to avoid entitled severance probability faith a reasonable jury hearing evidence from inadmissi sought likely to contain information prove in to coming ble on one count anoth not exculpatory information that is avail- count. not the situation here. er That is any able from other source one, which includes counts two Count is a need for the compelling which there offenses, through six as lesser included present defendant a defense The State enti could not severed. a filed case. Such motion shall be prove tled to offer on each act to evidence forty days arraignment than later after in count multiple-acts crime one. Ac seal of the court. Failure of the under district cordingly, we hold the court did timely defendant to file such motion its in denying not abuse discretion Jonas’s right a waiver constitutes seek motion sever. privileged access to records under this section, court, good but cause Request The Mental V. for Jherica’s shown, may grant relief from such waiv- Health Records. er. Applicability A. Section 622.10(4). (b) 20, 2010, of a July Upon showing On Jonas filed reasonable probability compel production privileged motion to Jherica’s records may likely exculpatory health under protocol sought mental records contain is not available from set forth Cashen. district court information source, grounds the court shall conduct denied Jonas’s motion on other only an in camera review of such records to applies when defendant Cashen informa- dence exculpatory trumped determine whether the statutory procedure protecting privileged tion is contained in such records. mental health rec ords, claims, as he logic the same would (c) If exculpatory information is con- allow Jonas access to Jherica’s privileged records, tained in such the court shall lawyer communications with her to see if balance the need to disclose such infor- she guilt way admitted in a that could help against privacy mation interest Yet, establish his innocence. courts would privilege holder. not allow a pierce codefendant to the attor (d) determination, the court’s Upon ney-client privilege of another defendant writing, that the privileged information to look for exculpatory evidence. We Cf. sought exculpatory and that there is a *15 State, 810, mark v. 602 N.W.2d 815-16 compelling need for such information (Iowa 1999) (discussing attorney-client outweighs privacy the interests of privilege in cases, the context of criminal holder, privilege the the court shall issue including general prohibition the on the allowing an order the only disclosure of disclosure of client’s confidential communi portions those of the records that con- cations). Clearly, legislature the is enti exculpatory tain the information. The tled to protect communications between shall prohibit any court’s order also fur- clients, attorneys just as it im ther dissemination of the information to pose procedures governing the disclosure defendant, any other person, than the of other records privileged under section attorney, prose- the defendant’s and the 622.10. These privileges important serve cutor, unless otherwise by authorized purposes that foster protect necessari the court. ly confidential communications. See id. at b. Privileged information obtained justification 815 (noting attorney-client of other than provided means as in privilege is to encourage “unrestrained paragraph “a” shall not be admissible clients”); communication see also any criminal action. McMaster v. Iowa Bd. Psychology of 622.10(4) § Iowa (Supp.2011). Code Exam’rs, (Iowa 758-59 1993) (discussing same for purpose psycho seeking
Jonas renewed his motion
Jheri-
therapist-patient privilege). Accordingly,
pursuant
ca’s mental health records
to the
although Thompson involved the victim’s
procedure set forth in the statute. The
health
mental
records and Jherica is a
renewed motion
included
same offer of
codefendant,
reject
we
Jonas’s constitu
proof
original
contained
Jonas’s
motion
tional challenge for the same reasons ex
production
under the
protocol;
Cashen
pressed in that opinion.
Thompson,
See
however,
supplemented
Jonas later
his of-
On section ment to statutory privilege found in 622.10(4)is unconstitutional because section procedural, applies Cash- 622.10 is ret en requests set the constitutional floor for roactively. Godfrey, See State v. (Iowa 2009) curiam); of mental health In Thompson, (per records. N.W.2d Leas, today, N.W.2d decided we re State ex rel. 419-20 N.W.2d (Iowa 1981) ject challenge a facial (applying constitutional amendment to statu 622.10(4) ity of tory section and hold the statute physician-patient privilege retroac supersedes protocol. tively procedural rejecting argu Cashen We note that, if right exculpatory Jonas’s evi changed ment that amendment defendant’s history smoking of mari- supported by her precluding manner rights
substantive her demon- Godfrey, juana during pregnancy, her application). retrospective pattern dishonesty, and her ad- ordered state to disclose strated of court district taking its in a mitted while care her witnesses frustration addresses the home at 724. re- N.W.2d newborn son. The State Jherica proceeding. criminal application for state’s dis- granted We sisted. pretrial order and cretionary review unreported April day after an On ap- to the court of the case transferred hearing, denied the district court Jonas’s the order. Id. We peals, affirmed which seal. ruling motion filed under application the state’s granted then though Jonas had “dem- court found that review, deciding before but further possibility [Jheriea]’s onstrated the Iowa adopted Rule Criminal appeal, we exculpatory mental health records contain 2.11(12), governs which disclo- Procedure evidence, has not the defendant demon- Id. noted: of trial witnesses. We sure they strated a probability reasonable provisions do not relate to The new contain information.” The exculpatory crimes elements substantive district noted that because Jherica’s court *16 only pertain proce- charged, but “very time and lim- records were situation adjudicating the criminal dure for they unlikely to contain ited” were excul- against leveled a defendant. charges was first patory diag- evidence. Jherica applied Consequently, the amendment is early nosed with in her teens depression dispute and resolves the retrospectively then diagnosed again jail and appeal. raised district injuries. after E.N.’s The court the 2011 amendment to sec- Similarly,
Id. statements, “the rejected unpersuasive change did not the substantive tion 622.10 incidents defendant and behaviors” identi- charges against criminal elements of the in support fied of his contention that the Jonas, procedure altered the but rather exculpatory records evi- would contain privileged records under section seeking dence. The court also refused to district en- Although the amendment was 622.10. allow to access records on defendant ruling denying Jonas acted after the first possibili- the basis there was a “mere records, Jherica’s we hold the access to something to a ty that said men- [Jherica] retroactively governs applies statute and inculpates tal health her- professional ruling of that as well as our review exculpates self and the defendant.” On id. subsequent ruling. See observed, point, this the court “If that Thus, turn to consider whether we now disclosure, ground permitting were correctly applied court the district every in would have to be allowed case. statute in this case. Clearly, legislature not what is intended.” Application
B. Section 622.10(4). identified two argued postar- Jonas Jherica’s district court circum- particular case that grounds compel stances to this lead it provided rest behavior already health This to this conclusion: “the defendant to her mental records. access her call to a knows much about “had ac- [Jherica]” included emotionless behavior pre-incarceration her died cess to medical rec- report [her] funeral home to son had Finally, the district court conclud- prices, flashing about her ords.” inquire a compelling ed Jonas had not established jail, suggesting she should breasts records July Jonas need for the mental health because “psych be in a ward” suggesting he information “already his access to her records was argued ha[d] also why might reasons harm strangely [Jherica] in jail, by stating she should be baby suggest and that could try- ward,” she was in “a psych baring breasts, her ing keep such harm a falsely secret.” saying her son was dead while ask- ing, emotion, without about burial costs. The district court specifically found that pled She guilty to three counts of child Jonas had failed to establish the informa- endangerment, albeit without admitting to sought tion was not any available from personally inflicting the baby’s injuries. other source: Jonas’s defense strategy included raising the importance privacy [G]iven reasonable doubt whether injuries certain here, interest that is at stake and the may have been inflicted Jherica instead fact that specifically statute places of him. The district court made no finding the burden on the defendant to show that Jonas’s motion was made in bad faith there is no other source for the to intimidate or deter her testimony or for sought, information the court does not improper other reason. We conclude believe that a defendant is allowed un- good faith “demonstratefd] a rea- der the statute to obtain per- another sonable probability that the information son’s mental health records without first sought [in Jherica’s likely records] exhausting every other source from exculpatory contain ... evidence and for which there possibility reasonable which there is a compelling need for [Jo- that the same information could be ob- present nas] a defense” within the case, tained. At least this there is a 622.10(4)(a)(2)(a). meaning of section reasonable possibility that the defendant could obtain the he seeks *17 information The district court denied his motion in [Jherica], merely by And, deposing part because it found Jonas failed to show that, even if he cannot do there is an that “the information is not available from equally strong possibility, given the cir- source,” any other as required under the discussed, just cumstances by that tak- 622.10(4)(a)(2)(a). § statute. Iowa Code ing deposition he would at least be Specifically, the district court found Jonas able to make a stronger case for obtain- failed to meet requirement this because he ing her mental health records under the depose failed to Jherica. Under the cir- requirements of SF 291. case, cumstances of this disagree we that added.) (Emphasis his depose failure to Jherica was fatal to review,
On our de novo we find the his motion to obtain her mental health district court in failing erred to conduct an records. may Jherica have made admis- in camera inspection of Jherica’s mental sions to a mental health counselor that she health records. Jherica was a codefendant would forget deny or in an adversarial charged victim, with endangering the same interrogation. Statements memorialized baby E.N. credibility Her was a central therapist a neutral likely would be more issue in the case. Her testimony put E.N. credible than self-serving Jherica’s asser- in Jonas’s baby arms when the stopped Indeed, tions as a hostile witness. noted breathing. She and Jonas concocted commentators have recognized that matching stories to tell at hospital, taking of a deposition “[e]ven from a giving a version of what happened may hostile witness provide not the sub- at baby’s was odds with the life-threaten- equivalent stantial of the information the ing injuries. gave Jherica also given inconsis- has party witness to a to whom he or tent statements contradicted her trial she is not hostile.” Wright, Charles Alan testimony. Significantly, she behaved Marcus, Arthur R. Miller & Richard L. victim, § she learned that hospital, Procedure Practice and
Federal
ed.2010)
(3d
E.N.,
(citing Fed.
very
& n. 23
condition and
“was
serious
26(b)(3) advisory committee’s
Kelly
R.Civ.P.-
make it.” Detective
inter-
note).
may very
have
Her records
well
Jon,
people
night:
Mary,
viewed four
more
effective-
enabled defense counsel
Jonas,
Jherica,
Greg
and
in that order.
her at trial
assisted
ly cross-examine
worker,
Sweem,
and
a DHS on-call
Ser-
her
preparation
deposition.
counsel’s
Neely
during
geant
present
Lori
were
all
Accordingly,
reverse
district
the interviews.
we
denying Jonas’s motion for
ruling
court’s
Kelly
Detective
finished interview-
After
mental
in camera review of Jherica’s
a.m.,
ing Jherica sometime around
she
remand the case for the
health records and
join
private
asked Jonas to
her in a
room
pursu-
court to conduct
review
district
agreed
for an interview.
Jonas
and
)(2).
622.10(4)(a
to section
If the dis-
ant
interject-
towards the room. Jon
walked
exculpatory
trict court finds no
evidence
son,
ed,
my
“I’m not comfortable
Jo-
review,
remaining convic-
on that
Jonas’s
nas,
being interviewed.” He asked
If exculpato-
shall remain affirmed.
tions
and
present during his son’s interview
told
found, the
ry evidence is
district court
“I’m
Kelly,
acting as his
Detective
attor-
proceed
shall
as directed
section
ney.”
Kelly
Jon
Detective
asked
whether
(d)
622.10(4)(aJ(2)(c)
determine
Iowa,
practice
he
licensed to
law
to a
whether Jonas is entitled
new trial.3
confirmed that he was. Detective
he
July
Defendant’s
8 Statements to
VI.
Kelly
possible
told Jon it
not be
would
Kelly.
Detective
him
sit in on
interview because he
But,
was a witness.
she “told both Jon and
Procedural
Back-
A. Facts
course,
that,
Jonas
was welcome
[Jonas]
ground.
evening
July
Late in the
attorney
to have
that he wanted ...
hospital
Kelly
notified Detective Lori
‘any attorney
except
in the world
for Jon
Department
of the Des Moines Police
”
nothing
during
Neiderbach.’
said
baby
brought
had been
with a brain
*18
Kelly
injury.
exchange.
When Detective
arrived at
40,
(1987).
multistep
procedure
This
is similar to that
58
Ritchie Court held the
prescribed in
for in camera
entitled
have the trial
cases remanded
defendant was
to
court
exculpatory
reviews to determine whether
evi-
conduct an in camera review of the victim’s
agen-
counseling
possessed by
dence was withheld in violation of the disclo-
records
a state
remand,
Maryland,
cy.
requirements
Brady v.
defendant was
sure
373
Id. On
to
83,
1194,
if
U.S.
he been ruled as a had not personal he limited ... a interest of the Kelly properly determined Detective lawyer.”). We need not decide whether an- in on interview of could not sit ethically precluded repre- Jon was from in suspect the same case. other senting July night Jonas the because also found Detective court district we issue on another ground. decide this Kelly that it his choice informed Jonas was speak Zerbst, with her. The district whether to In the Unit Johnson “knowingly, court Jonas volun- concluded Supreme ed States Court discussed tarily intentionally right his to and waived assessing test whether defendant has also The district court right remain silent.” waived to his constitutional an attor Kelly had not violated Jo- ruled Detective ney: right counsel right
nas’s to because every indulge pre- “[C]ourts reasonable Jonas, thus, only invoked could sumption waiver” of against fundamen- had no assert standing “Jon Neiderbach rights tal and ... constitutional we “do rights these on behalf his adult son.” presume acquiescence the loss of court Finally, the district determined A waiver ordi- rights.” fundamental knowingly did not or inten- police “[t]he narily relinquishment an intentional or tionally opportu- frustrate defendant’s right of a known privi- abandonment or nity with an attorney lege. to meet before The determination whether non-custodial interview at the during intelligent there been an waiver of has hospital.” right depend, to counsel must in each case, facts upon particular and cir- Analysis. B. our de Upon case, surrounding that cumstances in- record, we novo review of the conclude the cluding background, experience, correctly district court found state Jonas’s conduct of the accused. Kelly voluntary ment was to Detective 464, 1019, 304 U.S. 58 S.Ct. any right may he waived counsel he (1938) (footnotes L.Ed. omit- lawyer have not the right had. Jon was ted); Hilpipre, State v. see also night July Jon his son (“It (Iowa 1976) N.W.2d is well one of four a witness as adults resid may legally settled an individual waive his E.N., ing grandson, home where his But rights. or her the State constitutional injured had repeatedly been recent prove by preponderance must of evi- very day. weeks and that Jon was also a knowingly, voluntarily dence such was suspect stage at this initial of the investi done.”). intelligently too, So, wife, gation. Mary, was Jon’s A grandmother. lawyer who is will first address whether victim’s We witness, personally closely voluntarily waiving right involved as a acted his member, family potential giving related and a counsel and interview. Madsen, suspect police applied totality-of- in a matter are State v. we investigating conflicting have to deflect the-circumstances test determine motives *20 lawyer rep blame. Such a should not be whether defendant made dur statements suspect by ing a interview resenting another interviewed noncustodial were volun (Iowa 2012). police. tary. See Iowa R. of 722-23 Profl Conduct N.W.2d 32:1.7(a)(2) (“[A] test, § lawyer voluntary are repre shall not Under this “statements sent if the if the will is not or representation a client involves defendant’s overborne ... self-determination capacity concurrent conflict of interest his for [that] critically 722. significant impaired.” if ... there is a Id. at The fac- exists risk in determining tors to be considered was voluntarily. made Kelly Detective Jonas, whether defendant’s statements were vol- specifically told “It’s up you untary include: whether you speak with us or not. It’s your decision.” She age; whether defendant said that with
“[Defendant’s Jon present. Jonas chose to prior experience jus- proceed had in the criminal without counsel. system; ... We affirm deception tice whether the district was court’s used; ruling denying whether defendant Jonas’s motion to suppress showed the statement he ability to understand the made to questions Kelly. Detective respond; length of time defendant
was detained interrogated; defen- January VII. The 2011 Video and physical dant’s and emotional reaction to Photograph. interrogation; physical punish- whether A. Facts and Procedural Back ment, including deprivation of food and ground. Jonas moved limine to exclude sleep, was used.” from evidence a nearly five-and-a-half min Id. at 722-23 (quoting Payton, State v. ute video and a photograph of E.N. taken (Iowa 1992)). N.W.2d 328-29 January eighteen months after he interview, Jonas, At the time of the age sustained injuries on July twenty, was an adult. According to his The DVD shows having E.N. his tracheos- testimony suppression father’s at the hear- tomy tube cleaned and suctioned. E.N. ing, Jonas prior experience had some had several during seizures the video. Jo justice the criminal system, although the argued nas the video was irrelevant and extent of that experience is not contained relevant, even if probative “its value is within the allege record. Jonas does not substantially outweighed by danger Kelly any Detective deception used in tak- prejudice, issues, unfair confusion of the ing Kelly his statement. Detective told misleading jury.” Specifically, Jonas “any attorney Jonas he could have in the argued “the video clearly intended world except Jon Neiderbach.” Jonas jury’s arouse the sense of horror and pro requested never any lawyer, and when told vide an instinct punish.” His appellate it was his choice whether to give the inter- brief describes the video as “heart-wrench view, proceed. he chose to ing.” On April the district court heard a.m., began The interview at 2 after argument on the motion in limine. The hospital Jonas had been at the for about argued State it intended to offer the video twelve hours emotionally under difficult to show “the injuries seriousness of the circumstances with the life baby of his and clearly [E.N.] the condition that he Yet, the balance. he makes no claim that in ... injuries.” after [those] he was too fatigued any right. to waive The police did not detain him The court did not rule on the motion period preceding the interview. We con- before the State sought pho- to admit the clude that even right if Jonas had a to tograph and video at May trial on 5. Dur- represent have Jon him night, ing the State’s direct examination of knowingly voluntarily waived that Shannon regarding E.N.’s current health right acquiesced condition, and that Jon by allowing the district court admitted the proceed the interview to without telling video and photograph into evidence over Jonas to remain silent or to await the objection. defense counsel’s renewed arrival of lawyer. another We played jury also find video was for the while Shan- *21 that Jonas’s statement to Kelly Detective non questions answered about it. The
202 long- video and reflected the not mention the dition before trial did
prosecution injuries effects E.N. had sus- term during closing arguments. eighteen The video tained months earlier. Analysis. must decide B. We are relevant to the issue of photograph court abused its dis district whether the injury. the victim’s serious photo by allowing video cretion Huston, 825 We next consider whether evidence. See graph into in evidentiary rulings were nonetheless (noting photograph at video N.W.2d 536 v. rule 5.403. See State Iowa Rule of Evidence 5.403 are admissible under under (Iowa 2005) discretion). Henderson, 5, of Our 696 N.W.2d 10 reviewed for abuse (“Even excluded, may relevant evidence be long recognized photographs has are court however, they if simply probative are its value is substan not inadmissible because tially by the of unfair sympa outweighed danger tend may or to create “gruesome evi prejudice.”). To determine whether thy just ... if reason for their there 5.403, Hummell, dence should be excluded under rule v. 228 admission.” State Huston, (Iowa a test. 825 1975); apply two-part we State N.W.2d 83 accord v. 1982) “First, (Iowa we ‘consider the N.W.2d 537. Coburn, 315 N.W.2d Second, probative of the evidence.’ value (affirming ruling allowing into evidence ‘“against probative we balance the value accu photos that were “a fair and “grisly” danger prejudicial wrongful of its or condi depiction” rate of the child-victim’s ”’ upon (quot effect the triers of fact.” Id. tion). have in de “Trial courts discretion (Iowa Cromer, v. ing State N.W.2d termining pictures whether the value of as 2009)). unfairly prejudicial Evidence is their nature.” outweighs grisly evidence when it Hickman, 337 N.W.2d State
(Iowa 1983); “appeals jury’s R. Evid. arous- sympathies, see also Iowa 5.403. horror, provokes its in- es its sense of with Jonas’s contention disagree We or other punish, triggers stinct January photo- video mainsprings of human action [that] rele- graph were Evidence is irrelevant. jury cause a to base decision on its “any make tendency vant if has something than other the established any consequence fact that existence propositions in the case.” to the determination the action more Henderson, (quoting at 10-11 696 N.W.2d or it would probable probable less than (Iowa Plaster, State v. without the evidence.” Iowa R. Evid. 1988)). sense, But, powerful in a all evi- charged 5.401. The with child State Jonas key prejudicial dence is to one side. The injury endangerment causing serious danger prejudice is whether the July injury the brain E.N. sustained on unfair substantially pro- outweighs evidence’s required prove beyond The State was a value, noted in bative as we Huston: reasonable doubt E.N. suffered a all is to injury.” purpose “serious See Iowa Code evidence [T]he (2009). 726.6(1), (5) § sway section the fact finder. In child abuse Iowa Code cases, part, at least injury,” 702.18 defines a “serious much evidence will be ... Exclusion is re- “[b]odily injury prejudicial. which somewhat [c]auses unfairly impairment quired only of the func- when evidence is protracted loss way substantially bodily organ.” prejudicial tion of member or Id. [in that] 702.18(1)(6)(3). stipulate outweighs probative § value. “Unfair did its tendency sug- E.N. injury. prejudice” suffered serious is the undue basis, depicted video and E.N.’s con- on an photograph gest improper decisions *22 commonly though necessarily, an for the conviction. Id. at 553. The court emotional one. noted the defendant stipulated had not injuries that the victim’s were serious. Id. (citations Huston, at 537 Jonas, Rodriguez, like argued the video omitted). marks quotation internal should have been excluded under rule 403 E.N. depicted The video of because medical testimony records and es- lasting care that he needs and the ongoing requisite tablished the bodily inju- serious injuries. of his Video evidence is effects ry and that the video was cumulative and jurisdic highly effective. “Courts of other prejudicial. Id. at 554. Rodriguez The prej tions have dealt with the issue of the disagreed, court stating, “Despite the exis- day-in-the-life udicial nature of videos and tence of other evidence to document [the frequently have admitted them into evi injuries, the recording victim]’s communi- Moore, Eckman v. 876 So.2d dence.” injuries cates that were serious in [his] (Miss.2004). Jonas does not claim the way non-technical that is capable being misleading deceptive video of E.N. is or easily by laymen.” understood Id. More- inaccurately depicts E.N.’s condi over, the video “reflected no more than (“In tion. See id. at 984 order for the jury what the would see” if the victim had have the amount prejudi video to least appeared in the courtroom. Id. at 555. value, portray ordinary, cial the video must The same is true for the video of E.N. situations.”). Rather, day-to-day Jonas ar We hold the district court did not abuse gues unnecessary the video was and in its discretion allowing into evidence the jury. flamed the The video’s impact January 2011 photograph video and jury results from the nature of E.N.’s E.N. condition, fairly depicted. which is We do probative not find the video’s value is sub Expert Testimony VIII. on Shaken stantially outweighed by prejudice. unfair Baby Studies with Confessions
Just as trial courts have discretion to ad by Caregivers. autopsy mit into evidence or crime scene victim, photographs showing challenges expert testimony murder discussing journal if medical case studies of even the cause of the victim’s death is injuries documented brain undisputed, so too district courts al which care givers shaking confessed to the infant-vic accurately depicting injured low video condition, expert tims. Jonas contends the testimo child’s even if other evidence ny violated the injury. establishes the seriousness of the Confrontation Clause and against hearsay. testimony rules The prosecution leeway The has in what evi experts two for the State is at prove injuries, subject dence to use to issue. the district court’s discretion under rule objected Defense counsel first 5.403. testimony of Dr. Wilbur Smith. While State, Rodriguez explaining inju- the Texas Court the cause of E.N.’s head ries, Appeals held video of the victim’s cur- Dr. Smith described the historical admissible, rent condition was rejecting underpinnings of the acceleration-decelera- the criminal challenge theory. history defendant’s under tion One case discussed Texas Rule of nanny’s thought Evidence 403. 352 S.W.3d admission that she it was (Tex.Ct.App.2011). appellate appropriate violently shake babies. Jo- court noted the probative objected video had “some nas’s counsel to the statement as in showing hearsay, value suffered which should have [the victim] been excluded bodily injury” a serious was required from evidence because he did not “have *23 to question nanny the (off record) opportunity the interrogation.” a coerced see if it was objection THE is over- COURT: The objected later to similar counsel Jonas’s reasons ruled for the same that and Dr. expert, the State’s testimony from was overruled last objection similar Jenny Dr. Jenny. described Court, course, Carole permit- week with the injuries by compared study that suffered ting the at the break make defendant known have been who were children the defendant whatever record thinks injuries of whose shaken with the children Mr. Foritano. appropriate. they that had shaken caregivers denied you, MR. Thank Your FORITANO: objected counsel
them. Defense Honor. testimony Jenny: from Dr. following Q. Jenny, Dr. I am not sure where I talk to us Q. you a little about Can you off. this: left Let me ask Have type you of force or what kind of the comparing there been studies state- you to see if were an inde- might expect that by perpetrators ments discuss the this event. watching observer pendent shaking violent im- shaking and/or say people I can who have seen A. injuries or pact, compare looked being report beaten or shaken babies by injuries at the suffered those infants? extremely There are disturbing. to be study by recent A. most that have good reports been document- cases, at 189 Adamsbaum. She looked I ed, multiple, confes- multiple as well believe, adjudicated, that were that had people have been reports sional' who gone through the courts. There were 28 abusing and caus- involved with children people hurting who admitted to child. ing injury. head shaking. All of them admitted to Some something that in happens It is not impacting baby of them admitted parenting. of normal It is the course as well. is, know, you something holding baby patting them on the back. They they compared found that when a violent act as reported It is injuries cases in the confession it and the people who do who see people injuries people in where cases who it. confessed, they hadn’t were compa- rable, injured the babies were in the Honor, Your I will
MR. DICKEY: way. same hearsay. object. That is THE Overruled. COURT: Q. talking We are about that same Doctor, you let me ask Have Q. this: type injury? of acceleration/deceleration studies, fact, published Well, result, in there been yes, injury A. sub- Academy subarachnoids, the American Pediatrics durals brain dealing comparing admissions or damage. It was similar both groups. perpetrator the in- statements Q. journals published Those were particular that were seen in juries those typically on in the medical relied field? A. Yes. cases? published A. That article was in the Q. those consistent with what Were Pediatrics, journal which called is the individuals were saying? those journal Academy the American Objection, Hon- MR. DICKEY: Your Pediatrics, presti- which is the most hearsay. May approach? or. This is I journal gious pediatrics field of Yes. in the THE COURT: world. added.) Xtra,
(Emphasis
overruling
L.L.C.,
Jonas’s Gacke v. Pork
*24
testimony
(Iowa 2004)
objection
Jenny
of Drs.
(quoting Iowa R.
Smith,
the district court
5.703).
stated:
Evid.
recently
We
noted that “rule
I do not believe that
the matters that
5.703 is
give experts
intended to
appropri-
you
objecting
are
to violate either the
work,
ate
latitude
conduct their
not to
hearsay
your
rule or
client’s Sixth
parties
enable
to shoehorn otherwise inad-
I
rights.
Amendment
do not believe
Stenzel,
missible evidence into the case.”
they amount to anything that would be 827 N.W.2d at
Jenny
705. Dr.
testified
They
considered testimonial.
are mat-
that the Adamsbaum study
published
was
rely
ters that
on.
experts
Pediatrics,
journal
in the
which she de-
testimony
basically
Dr. Smith’s
is
scribed as the “most prestigious journal in
Jenny’s]
testimony
same as
[Dr.
pediatrics
field of
in the world.” She
they
terms of how
formed opinions
identified
journal
Pediatrics as a
“typically
injuries
about mechanisms of these
relied on
the medical
Signifi-
field.”
so forth.
however,
cantly,
she never testified that
certainly
You are
entitled to ask these
the facts and
data
the Adamsbaum
possible
witnesses whether it is
that the
study
police
derived from
interrogations
underlying information
was relied were
type reasonably
“of a
upon by
relied
on, such as confessions of individuals
field,
experts” in her
required
as
under
child,
they
about how
treated a
whether
5.703;
rule 5.703. Iowa R. Evid.
accord
they considered the reliability of those Stenzel,
(“Rule
Dr. Smith types inju- these that E.N. both of had follows: ries. tell us what that mecha- you Q. Can is, maybe record, then injury] we
nism brain conclude upon [of Based this bit about the resulting a little more we can talk there reversible error is no I did misstate. Jenny’s A. Sure. also studies? of Dr. testimo- from admission Geddes, Guthkelch, study or Dr. ny regarding The doctor the Adamsbaum *25 nanny was involved. the case testimony Smith’s about brief, testimony was study. hearsay The are a number of stud- But the—there properly admitted ample, and there was to make it clear have evolved ies which jury the could con- head, evidence from which par- of the severe acceleration that required that was not to in- words, impact clude off axis—in ticularly if it is other injuries. flict brain forth, being straight back and instead of from side to side—that flops head the next address Jonas’s Confron We injury. a severe can cause brain that the objection tation under Sixth Clause which are mainstream studies Those States Constitu Amendment to the United accepted. widely are I, tion and section 10 Iowa article question threshold in a Constitution. The studies, a There have been number analysis is whether Confrontation Clause we one that we did where including See the evidence is “testimonial.” Craw problem, at Iowa kids this looked 36, 68, 124 Washington, 541 U.S. ford half we about of the time and we found 1354, 1374, 158 L.Ed.2d S.Ct. impact, evidence of an half could find (2004). held that a The Court Crawford probably the time we couldn’t. There by spouse statement the defendant’s given it validity impact making to the some during police interrogation read into worse, my you but in belief can even evidence him at trial testimo against certainly just straight do it accelera- at nial. Id. at 124 S.Ct. tion/deceleration, shaking baby with the (“Whatever else the L.Ed.2d term off axis. the head covers, to prior it at a minimum applies added.) testimony hearing, before preliminary Dr. testi- at a (Emphasis Smith thus trial; grand jury, or at a former and to there are “mainstream studies fied that argues The State widely accepted” establishing police interrogations.”). which are that “confessions” in the theory that he was advocat- anecdotal the causation testimony study simply were referenced This did not contain Adamsbaum ing. testimony, nanny support expert opinion not twenty-eight reference for the the matters asserted. Jo accused of a crime from the truth of defendants Moreover, case histories with study. argues he testified nas that Adamsbaum study anecdotal referred objection to third confessions without —an were offered for experts showed was State’s study impact Iowa —that “shaking “truth” of always involving proposition found in cases brain- enough alone can force cause a Dr. Smith stated that cause injured children. Because baby’s injury.” of a causes traumatic rapid shaking head brain to cross-examine rip, opportunity of the brain to caus- lacked the the blood vessels underlying case histo hemorrhaging. persons further in the subdural He ing shaking the baby’s ries who babies temporal tip that when a “confessed” testified studied, skull, argues he injuries whose were against and forth moved back prohibited expert that she Confrontation Clause made an inconsistent statement testimony referring to those studies. Jo about it at some time the past. on concurring dissenting nas relies opinions support in Williams v. Illinois to suggestion question, this al- claim. his Confrontation Clause 567 U.S. though you impeach could her with her
-,
132 S.Ct.
IX. The Limitation on Cross-Exami- peach by prior inconsistent statements is nation. not subject without limit. The of the During the cross-examination of statement, inconsistent if it is to be ad- Jherica, defense counsel asked Jherica missible, must material and not col- whether she was under the care of a physi lateral to the facts of the case. cian, psychologist, psychiatrist while she (Iowa Hill, State v. jail.
was in sought Defense counsel 1976). impeach Jherica with an inconsistent state Alleged X. Prosecutorial Miscon- judge ment she made to the her during duct. guilty plea. objected. The State After issue,
hearing proof Jonas’s offer of on the Background A. Facts and Procedur- the trial court objec sustained the State’s History. al allegation prosecu- Jonas’s tion, stating as follows: torial misconduct relates to his claim that think
I the collateralness of it prosecutor comes mischaracterized the testi- sense, witnesses, in this only mony that it has relevance expert one of his Dr. in challenging credibility. the witness’s Francis Blankenberg. Blankenberg Dr. I think you testified, there are limits to what can part, relevant as follows: way do of impeaching witnesses to Q. The subdural hematomas and the challenge their credibility. subarachnoid hematomas are result anything you
You can’t find could of the acceleration and deceleration and veins, then ask a prove witness about and then the shearing bridging Q. asked about Yes, teach- You were also accel- that is usual A. right? injuries. use a You Yes. ing. eration/deceleration couple that I think we need to of terms - That mainstream A. Q. That is the term explain. You used the mass effect. yes. opinion, is mainstream way: put you A. it this If Correct. Let’s observed, you right? That is what Q. injury— have acceleration/deceleration A. Yes. itself, talk about the brain not let’s have that kind of you When Q. bridging you veins. If surrounding deceleration to the that sudden injury, in- have severe acceleration/deceleration brain, hypoxic cause the is- that can juries, the white matter tracks you tear necessarily. A. Not injury? chemic matter, up along with the white along on the mat- the blood vessels white could, certainly right? A. Q. But it tracks, ter that tends to cause hemor- debate whether big is a about There rhage. hemorrhages are Sometimes actually can occur as an isolated CT, though easily seen on a lot of finding. times they are. areas of the that are The central brain certainly you But on MR see would that were—that suffered question sequences signs bleeding they on the injury, typical hypoxic is not severe provided they inju- had had kind of *27 abuse, very se. per for child That is ry to the brain itself. however, consistent, with ces- complete oxygen flow or for a sation of blood Q. I You also used—and don’t know
period to five of four minutes. this pronounce if I am to correct- going A. ly intraparenchymal? Intraparen- — certainly get from Q. You can edema chymal, meaning inside brain. injuries, acceleration/deceleration Q. Why would that be indicative of expect pure You wouldn’t ede- right? A. A. you acceleration/deceleration? If degree have to be some ma. It would hemorrhages, had intraparenchymal intraparenchymal hemorrhage gray where meets the white matter MR injury shear which is manifested on you matter a weak area when are in is And hemorrhage. sometimes CTs particular motion. That where is enough up, to it but pick can be sensitive you get tearing. MR is more sensitive. Q. you that on Did observe [E.N.]? Q. swelling, right? A. Edema A. No. Correct. added.) (Emphasis alleged misrepre- that with Q. get You acceleration/de- during sentation first occurred the State’s You injuries, right? A. No. celeration cross-examination of another defense microvasc, are injure have to which witnesses, Dr. counsel’s Ronald expert Us- disrupt in myelin you fibers. So have to cinski: of the brain in order to parts different Q. change your opinion at Would it
get mostly a lot of it is “edema.” But Blankenberg if Friday all Doctor said on white matter and blood ves- shearing of injuries to were the re- [E.N.] oc- sels inside the brain has injuries? sult acceleration/deceleration first, secondarily you and then curring Objection, MR. a DICKEY: that’s get edema. of Doctor Blanken- mischaracterization
berg’s testimony. again, jurors, THE Once trict objections COURT: court overruled the by Jo- counsel, nas’s while in you judges Krogmann are the of the facts. You Dahlstrom, objections were have to remember what other witnesses sustained. said so overruled. Krogmann, we held defendant your question again? A. And preserve did not prosecutorial claim for
Q. My question
change
is would it
misconduct when he failed to move for a
your opinion if Doctor
tes- mistrial after “the district
Blankenberg
court sustained
objection
Friday
injuries
question
tified on
and the
was with
[E.N.] ’s
result,
subdurals,
drawn.”
211 sup- we hold the evidence insufficient to shaken stopped E.N. after he breathing, port count five. but later testified she never shook E.N. “ jury reject free to ‘[T]he [is] certain evi It is well established that ” dence, and credit other evidence.’ State theory sustain a conviction on the “[t]o (Iowa Sanford, 611, 814 N.W.2d 615 aiding abetting, the record must 2012) Nitcher, (quoting State v. 720 contain substantial evidence the accused (Iowa 2006)). 547, N.W.2d Given the ap assented to or lent countenance and evidence that Jonas and Jherica were both to the criminal proval by act either ac present when the offense was committed participation by
tive
some manner
they
colluded with each other to
prior
encouraging
to or at the time of
condition,
explain E.N.’s
a reasonable jury
its commission.”
could have concluded that Jonas aided and
(Iowa
Spates,
State v.
N.W.2d
abetted
in committing
Jherica
an act that
2010) (quoting
Tangie,
State v.
616 N.W.2d resulted in E.N.’s
injury.
brain
Accord
(Iowa 2000)).
may
The State
ingly, the court’s submission of
aiding
prove the defendant
participated
and abetting instruction and alternative-
crime
either direct or circumstantial
theory instruction for counts one and two
Hearn,
evidence.
“
On E.N. suffered his only the district court if it has abused its injury, people brain two were in the Neid- Reeves, discretion. Id. In we stated: erbach home—Jonas and Jherica. Initial ly, hospital claim, Jherica told the physician, weight-of-the-evidence her On a ap mother, mother, pellate Jonas’s and Detective review is limited to a review of Kelly that she was in the room with Jonas exercise of discretion the trial *30 court, stopped breathing. when E.N. Jonas and not underlying question mutually story Jherica told a consistent against whether the verdict is the explain that failed to E.N.’s injuries: weight E.N. of the evidence. [Commonwealth screamed, Widmer, gasping, started and then v. 560 Pa. ] [745,] [(Pa.2000)]; turned blue. Jherica later recanted this A.2d see also Ashworth, story and that testified Jonas was alone United States v. 836 F.2d (6th Cir.1988) stopped breathing. with E.N. when he (appellate court nei Jherica judge credibility also told detectives she have ther sits to of witnesses challenged jury’s appeal 4. Jonas’s motion also the the denial of motion new his trial two, verdict as to count but he does not as to that count. evidence; State, that would be so ap- emphasized the rather reweigh “[i]t nor to it as a you probably publish the unusual could examining limited to court is pellate certainly case because it report trial to produced at determine evidence not— thoughts would variance most be at court’s determina- whether the district practices.” does does not tion the evidence heavily against the ver- “preponderate Selover, spiral Dr. a frac- According to manifest is a clear and abuse of dict” on resulting setting baby ture from a down discretion). unlikely, part, a bed because was count, challenged 203. each we Id. at For normal, newborn, healthy you when [a] an- presented the evidence summarize head, you lie or if their them down lower whether court abused its alyze the district something re- will elicit called a Moro determining discretion the evidence primitive a reflex where sponse. It is heavily preponderate against does baby’s up arms will in front come verdict. baby. legs will come as well. A. Count Three —Broken Arm. Also, newborn, their a normal muscle they them arms tone is such that hold testimony. Jonas and Summary of They legs and their front of them. emergency took E.N. to the room Jherica their arms their back. put don’t behind turned a on June for what out to be Selover, pe- arm. the treating broken Dr. expert Dr. and the two Lindaman State’s diatrician, recounted Jonas’s version of Jenny— Smith Dr. witnesses —Dr. injury how the occurred as follows: also that E.N.’s reflex and testified Moro history baby unlikely flexor tone made it his arm would Father related a hungry crying. was was have behind his back when Jonas was He been holding baby. on the bed. Dr. fur- sitting placed on a bed him Selover account, disputed noting room a ther Jonas’s Mother went to another to make weight alone baby. “unlikely baby’s bottle would to fracture provide sufficient force waiting While for Mom make the testimony arm.” This was but- baby’s bottle, the Dad baby crying. was still Smith, Dr. noted that tressed who baby set the onto the At the down bed. fairly strong is a bone.... “[t]he humerus bed, baby time he he set the good It a amount of force to break takes “snap,” baby related that heard a he agreed would Jenny that.” Dr. that there harder, cried and he discovered that of force significant degree need to be “a injury baby. there was an involved.” of in- ... When asked what mechanism baby put Father said that the his in an jury spiral would be for fracture arm behind as he child his back set the infant, onto Dr. Smith testified: down the bed. Usually, twisting, wrenching force.
Several other witnesses testified Jonas hit the possible somebody But it is could story. told them similar arm; I possible, in the or it child Although of the State’s physician none might like guess, caught, that a child *31 willing 'pos- witnesses were to rule out the know, or some you between a car that some— sibility E.N.’s arm had been broken pinned and be and fracture. hard surface described, they in the all manner Jonas classically is a agreed highly spiral version was fracture his unlike- Smith, ly. expert pretty Dr. for the fracture. But there is some witness twist good orthopedic sleeping baby[’s will, course, work literature muscles] be that follows the stress lines and shows ... relaxed [whereas awake baby, in] [a]n you impact can do it with too. It is active, the muscles are engaged.” Defense likely, just considerably likely, less less counsel Jenny confronted Dr. with the sec- impact. ond photograph, which showed E.N. being by grandmother.
held his Dr. Jenny ad- mitted E.N. was “not exhibiting flexor Usually, ... it grabbing more at the But, tone at point.” Dr. Jenny reiter- elbow and twisting wrenching, pulling or ated that an infant being who was in—I laid out or can’t tell which—the arm. down, opposed to being held as It takes a lot of was force. depicted the photograph, would exhibit acknowledged Dr. Lindaman he ad- had response Moro and flexor tone and vised E.N.’s other physicians and DHS thus up would lift his arms in front of him. injury that he believed E.N.’s was “consis- history they tent with the had obtained Analysis. 2. argues and the one had obtained.” He ex- [he] weight of the presented evidence does not however, plained, that at that time he was support his conviction for child endanger unaware flexor tone would still present ment under the third count. The jury trial, age. at E.N.’s At Dr. Lindaman instruction read as follows: that, in opinion, testified his Jonas’s ver- 1. On or about June 2009 the defen- unlikely sion was because flexor [E.N.] ’s dant: front, keep tone would his arms in a. knowingly acted in a manner that behind him. created a substantial risk to E.N.’s witnesses, expert Jonas also called two physical health safety; or or Mortimer, Dr. Blankenberg and Dr. Errol b. an intentional act or series of who testified about E.N.’s broken arm. acts, intentional used unreasonable They agreed it possible was a spiral (i) force: that resulted in E.N. suffer- fracture to result from an arm being arm; (ii) ing a broken with the pinned while an infant is laid on his back. specific causing intent of a serious Dr. Mortimer further opinion testified his injury to E.N. would be unaffected the fact that a act(s) 2. When he committed the child of E.N.’s age would exhibit the Moro defendant parent. was E.N.’s reflex and flexor they “really tone because acts, aAs result of the defendant’s only appl[y] they when are [children] injury. E.N. suffered a serious startled they or when are moved in a particular way.” challenge Jonas’s focuses on the first element of the cross-examining argues
While Dr. instruction. Jonas Selover and Jenny, Dr. the State failed to defense counsel also introduced rebut his version of how broken, given into evidence two E.N.’s arm was photographs showing he con- E.N. being sistently held with his arm dangling provided explanation the same behind his back. Defense counsel present- injury to several people and Dr. Linda- ed Dr. Selover with the first man photograph, possible testified that it was for E.N. agreed which he good did not show “a to have spiral suffered a fracture had his example back, of flexor muscle tone.” pinned On redi- arm been behind his as Jonas rect, however, Dr. Selover noted that described. pho- Jonas also claims the two appeared E.N. sleeping photo- showing “dangling tos of E.N. his arm graph, significant which was because “flatly the side and down below his back” “[a] *32 Every would take a breath. testimony that time he expert the State’s
refuted” “pop, just go exhale it story inconsistent with inhale and would was Jonas’s of infant involuntary responses pop” that. physical Finally, emphasizes Jonas age. E.N.’s have that Shannon noted E.N. “seemed never offered prosecution “the that testi- some with it.” Shannon discomfort injury.” for explanation alternative Joe, cousin who fied Shannon’s she disagree. We issue, first told Jonas noticed four jury physicians heard from they left popping before Jheriea about flexor presence testified that the who City. appointment in Iowa Jherica’s reflex an infant Moro tone they bring it to the Shannon recommended substantially undermined Jo- age E.N.’s next pediatrician E.N.’s at his attention of E.N.’s explanation for the cause of nas’s which Shannon be- appointment, doctor’s unlikely arm it made it broken because According couple days. lieved in a was his arm have been behind E.N.’s would testimony, appointment to Jherica’s he laid down on the bed. back when was July time 8. E.N. was set for some after Smith, Selover, Jenny Dr. and Dr. also Dr. by any professionals was not seen medical great that would have taken a testified after raised with Jonas Shannon the issue And, force E.N.’s arm. deal of to break July 2 was rushed and Jheriea on until he appeal, on contrary Jonas’s assertion emergency July room on 8. witness, Smith, Dr. State’s de- expert her cousin Jheriea testified trial that usually the mechanisms that cause scribed “Joe that it felt like it was a broken said infant’s arm —one of spiral fractures in an cross-examination, coun- rib.” On defense ... at “grabbing was [E.N.’s arm] which following impeached sel Jheriea with the twisting wrenching.” the elbow and for her proffer statement made her Considering in the rec- all of the evidence guilty “He told there was some- plea: us ord, say prepon- we cannot the evidence I it was thing wrong, but didn’t know jury’s heavily against derates verdict respond- To which broken ribs.” Jheriea finding guilty endangerment of child ed, something “He told us that there was causing injury under this count. serious De- wrong it felt like ribs.” broken Accordingly, court we hold district pointed fense then out that Jheriea counsel denying did not abuse its discretion in affirmatively had denied that she was told motion a new trial count Jonas’s on from a rib: popping was broken three. you Question: Q. When were asked: they say says, I had “And have —Joe B. to Seek Medi- Count Six —Failure pain. baby broken rib and cal Care. you inter- And when Shannon and Joe” — testimony. Summary Jherica’s rupt, you? A. don’t Yes. sister, Shannon, that when Jonas testified said, I Q. you say? do A. What E.N. off at her house dropped and Jheriea it was say was what “They did this July day her him for the to have watch while I was there.” popping 2 she noticed a on E.N.’s back: about a joint Defense counsel also asked Jheriea just It was almost like a —it mother had with her pop would conversation she popping, you like if kind knuckle, feel, jail. while was in Jheriea admitted would kind of she how that if told her mother that she place. It was she had popping and out had that E.N.’s rib was broken every every time would exhale—or known he *33 hospital. she would have taken him to the contrary weight to the of the evidence. testify at Joe did not trial. jury The instruction for this count re- quired the State prove the following: Shannon’s, day The after E.N. was at Jonas and Jherica left E.N. with Jherica’s 1. On or about approxi- between mother, fussy E.N. became so Connie. mately July July 2009 and 2009 the during this visit that Connie had to return deprived defendant E.N. of health care parents him to his at the Neiderbach by willfully failing to take him for treat- home. crying Connie noted that E.N.’s ment of broken ribs. “[pjretty
was much constant” and was not 2. At that time the defendant was him, by feeding changing alleviated his parent. E.N.’s diaper, attempts or her at consoling him. 3. At that time the defendant was mother, Mary, While Jonas’s was watching reasonably able to make provisions for E.N., after him Connie returned E.N.’s health care. home, Neiderbach popping she noticed a deprivation 4. The of such health E.N.’s back. Connie had alerted her to it care caused substantial harm to E.N.’s dropped when she E.N. off at her home. physical health. Mary testified she did not believe the pop- 5. As a deprivation, result of the ping causing E.N. any pain and she E.N. suffered a bodily injury other than was unaware E.N.’s ribs broken were injury for which the health care was that time. Jon noticed clicking E.N.’s needed. couple days July back a later on 5. He jury brought it instructions defined up Mary, they generally “bodily inju- ry” “physical pain, agreed any that the illness or impair- issue should be raised at ment appointment physical E.N.’s next pediatri- with his condition.” cian, which was scheduled for later that Jonas weight contends the of the evi week. dence fails to establish he knew or should Ekhardt, and, have known
Dr. one E.N.’s ribs were broken physicians of the treat- thus, Rather, ing E.N. at Blank needed medical care. Hospital, Children’s ad- argues the merely mitted that evidence “[t]here no treatment “showed an ribs”; however, broken explained she awareness of a ‘popping1 feel E.N.’s treating physician given pain “would have back ... which his sister-in-law advised painful medicine because it is ... needed to be checked out.” This same popping clicking follow him to make sure it [would] healed was also noticed Connie, Jon, well.” Dr. Mary Ekhardt also testified that to of whom —none knowledge her required E.N. had not suffered a believed issue immediate ribs, secondary injury from argues: the broken medical attention. Jonas thus punctured lung. such as a Dr. Lindaman If grandparents, collectively who testified an infant signs would show years have over one hundred of experi- pain distress or after suffering multiple rib children, raising ence did not believe fractures “for the part day better care, was ever need of medical [E.N.] multiple other time that those rib only then how could Jonas —who had fractures were moved.” just been a father for over a month— possibly expected to have known[?] Analysis. Jonas claims the six, Yet, verdict as to count charged which Jo Jherica testified at trial that Joe nas with child endangerment failing told her and Jonas that he believed E.N.’s ribs, seek medical care for E.N.’s broken ribs were broken. Although Shannon tes- *34 216 in- have jury A reasonable could diaper. specific were less and Joe that she
tified that broken ribs the evidence judge the ferred from not our role to it is point, on this baby’s pain. appellate on our caused the credibility of witnesses Reeves, N.W.2d at review. See in the all of the evidence Considering “whether the dis- Rather, only we consider pre- record, say the evidence we cannot that the evi- court’s determination trict ver- heavily against jury’s the ponderates heavily ‘preponderate ... does not dence endanger- guilty of child finding dict Jonas a clear and mani- [was] the verdict’ against for medical care failing ment for to seek (quoting Id. of discretion.” fest abuse broken ribs. E.N.’s 266). Ashworth, We cannot 836 F.2d at hold the district court Accordingly, we heavily preponderated say the evidence denying discretion not abuse its did that Jonas knew or the conclusion against a new trial on count six. motion for Jonas’s were bro- known E.N.’s ribs have should in need of medical baby was ken and Sufficiency Evidence. of the XIII. attention. supporting the evidence Jonas contends evi- weight argues also relating five to E.N.’s counts four and under contrary to the verdict dence was For these ribs was insufficient. broken treatment there is no this count because counts, the evi- challenged we summarize was no ribs and because there for broken whether it analyze presented dence depriva- a result of the that “[a]s evidence conviction un- to sustain his was sufficient tion, bodily injury other suffered a E.N. der each count. which the health care injury than there is Jonas also contends needed.” to the suffi challenge we review a When separate E.N. suffered “a no evidence guilty ciency supporting of the evidence injury,” and the State subsequent serious verdict, all of the evidence we consider “ in a state was ever prove “[E.N.] failed to ‘in most favorable to light the record [a] directly or which either pain [Jonas] State, all reasonable infer including him medi- denying abetted in aided and fairly drawn from ences that ” cation.” at 615 Sanford, 814 N.W.2d evidence.’ Keopasaeuth, v. 645 N.W.2d however, (quoting State Dr. Ekhardt tes- Significantly, (Iowa 2002)). uphold the We there is no treatment although tified if is substantial evidence ribs, have verdict there E.N. still should for broken it. Id. “Evidence is supporting record so that brought physician in to see a been if, when viewed in substantial monitored considered healing of his ribs could be State, it can light most favorable prescribed. could be pain medication jury a rational defendant untreat- convince pain that severe from the The fact doubt.” Id. guilty beyond a reasonable have been alleviated injuries rib could ed “ jury ‘the free to recognize [is] and medication is We by medical intervention evidence, and credit other reject certain conviction. See State enough support ” Nitcher, 1981) (Iowa (quoting Id. McKee, evidence.’ 556). evidence Circumstantial N.W.2d the Model Penal Code definition (adopting as direct evidence. probative equally bodily injury). Connie testified 132, 138 Meyers, 799 N.W.2d State v. night he was E.N. was so inconsolable (Iowa 2011). “Evidence is not substantial him forced to return with her that she was speculation, or household, only suspicion, if raises though the Neiderbach even Yeo, N.W.2d at 547-48. conjecture.” his feeding changing him and she tried Testimony. Summary Jenny gave Dr. testimony regard- A. E.N.’s similar ing discovered phy- rib fractures were first cause of E.N.’s rib fractures: survey when the did a bone hospital sicians The multiple rib fractures are consistent *35 July day unresponsive the after with of multiple episodes having exces- emergency E.N. was rushed to the room. chest, sive pressure applied to the Dr. E.N.’s bone survey Smith testified that squeezing actually the chest. It is hard fractures, revealed fifteen rib separate to break baby they ribs because are some on the rib. Dr. Smith ex- same very flexible. plained process dating his rib of fractures: you chest, If in punch baby they breaks, rib, like a When bone it don’t you squeeze break. But if real days for knitting takes about seven hard —it is kind of like squeezing a beer X-ray begin of the bone to [so] they break at the sides and the can— you actually something can called see shut, back. it squeezes pops When callus, body’s healing which is the at- the sides pops at the back. It takes tempt at the fracture. excessive pressure degree to cause that you If fracture have a rib with no very fractures. Those fractures are it, callus about then rib fracture painful. happened immediately, could have or it During both time periods identified anywhere could have happened the State under counts four and five—June preceding seven days. 30, 2009, July June July identify Dr. Smith was able to three frac- 2009 —E.N. alone with number of “fresh, tures were that zero-to- different adult caregivers, including Jheri- range.” remaining seven fractures ca, Jon, Shannon, Mary, and Connie. range.” “were the two- to four-week previous Jherica testified Jonas had no He estimated that oldest rib fractures experience caring for babies and that he were about four old. weeks “impatient” feeding would become when Dr. that many Smith testified of the rib with E.N. because of the bottle. issues back, fractures were on E.N.’s which he cry, pick When E.N. would Jonas would important described as because those are voice,” up him and his “kind of accelerate “very get way hard to other than telling cry,” E.N. “there is need to or to no severe or compression squeezing.” He “stop crying.” believed Jherica this possible noted that to break them “[i]t scared E.N. When Jonas was unable to blow, with a usually direct but it is hard E.N., get console he would “frustrated” squeezing.” He noted a number also just “would him off to the next pass (side) lateral regard rib fractures. With to person, whether that or one [was Jherica] fractures, explained these he as follows: parents.” his Jherica testified that she recall, youAs is a curved a rib structure. anything never saw Jonas do that would I am holding my shape, hand a “C” have broken E.N.’s ribs. with the to the spine attachment here Analysis— where my right hand is and the attach- B. Four Count ment my argues to breast bone where index Older Rib Fractures. if finger you squeeze presented So insufficient evidence to (indicating). State hard, you count going put are maximum sustain his conviction under four. my trial right joins my stress where thumb The fourth count of the information charged index finger. endangerment Those are called lateral Jonas with child they causing rib fractures. is where rib fractures. The snap. That older abuse, very nature of child required the State to jury instruction establishing difficulty inherent prove: places times and abuse to precise approxi- or about between 1. On delay in frequent due to the children 2009 and June mately June abuse, discovery of as well as other defendant: based on the nature crime. factors manner knowingly in a a. acted omitted). (citations Id. a substantial risk E.N.’s created standard, this we held that the Under safety; health or physical presented evidence sufficient to state had *36 series of by an intentional act or b. four separate Yeo of each of the convict acts, used unreasonable intentional Id. endangerment. of child at 551. counts (i) E.N. suffer- that resulted in force: trial, testimony had At the witness estab- (ii) ribs; rib or with a broken or ing present was each time the child lished Yeo causing intent of serious specific injured and had committed acts of was E.N. injury to that were with child’s abuse consistent act(s), he committed the 2. When 549, 551; Id. at see also State v. injuries. parent. was E.N.’s defendant (Iowa 2003) Sayles, 662 N.W.2d 3-7 acts, E.N. suf- As a result of the cir- (holding evidence sufficient because injury. a serious fered established that cumstantial evidence present failed to “a argues State Jonas uninjured immediately child-victim was puts evidence ... that Jonas in scintilla of left of the being in the care defen- before E.N. 17th proximity with from June to dant); Watkins, State 659 N.W.2d 2003) (Iowa from which it can be inferred June 30th evidence (holding suffi- resulting act Jonas committed an that when state the nonaccidental proved cient Hickman, Jonas on broken ribs.” relies were while the child-vic- injuries inflicted separate which we held three acts “[t]he in the care of the tim was exclusive defen- dant). section required [Iowa under Code 726.6A] enough preci- should be established with case, State’s in this unlike evidence jury beyond to enable to be satisfied sion Yeo, sufficiency meet the fails to place and a reasonable doubt of a time A people threshold. number of aside from of the occurred.”
where each three acts E.N. during had been alone with Jonas subsequently at 368. clar- 576 N.W.2d We rib oc- time frame E.N.’s older fractures ified that Jherica; curred, mother, her including rule does mean that evidence of this Shannon, Connie; sister, as well as inci- precise place time and of each Mary. The parents, Jonas’s Jon and State merely act but required, dent or establishing no Jonas presented evidence three or acts must means the more injuries with the rib was alone E.N. when by time that each separated place so saw anyone or occurred separate distinct. incident E.N. squeeze Yeo, N.W.2d at then noted 550. We brief, appears rely In its the State follows: defending propensity argument sufficiency evidence under this approach is consistent with the
This count: statute, as well as our language patience not re- Neiderbach had no with
general rule the State is [E.N.j’s crying, prove precise crying [E.N.] time and quired him, just alone with compatible of a crime. It is also and Neiderbach was place injuries suffered the two b. [E.N.] before an intentional act or series of acts, specifically bro- intentional that can be dated —the used unreasonable (i) injury. and the brain Rational force: that resulted in ken arm E.N. suffer- (ii) ing ribs; a broken jurors could find that it was Neiderbach rib or or the specific intent of squeezed causing who and broke his ribs a serious [E.N.] E.N., injury to or aided and approximately between June 17 and abetted doing another in so. June 80. committed, 2. When he or aided and however, Normally, “evidence of one crime abetted, act(s), the defendant was used prove cannot be another crime parent. E.N.’s White, occurred.” State v. acts, 3. As a result of the E.N. suf- (Iowa 2003).
850, 858 injury. fered a serious presented by The evidence the State at four, As with count Jonas’s challenge to trial does little more than ... “raise[ ] his conviction on count five centers on the suspicion, speculation, conjecture” *37 first element of jury instruction. Jo- Yeo, baby’s Jonas broke the ribs. 659 nas specifically argues the presented State N.W.2d at 548. We conclude the evidence insufficient evidence to establish when support was insufficient to his conviction injuries E.N.’s fresh rib occurred so as to under count four. a jury allow reasonable beyond conclude a reasonable doubt that Jonas committed Analysis Five C. Count —Fresh an act causing injuries those or aided and Rib Fractures. argues Jonas the State abetted another to do so.5 agree. We presented insufficient evidence to sustain Although this count differs from the his conviction under count five. The fifth previous count in that Jonas could be con- charged count Jonas with endanger child if victed he either committed the act him- causing ment for or aiding abetting self or aided and person abetted the who another who caused the new rib fractures. did, the evidence was insufficient under jury The required instruction the State to either theory. Several other people were prove: alone during with E.N. this period, time 1.On approxi- about between Jherica, Jon, Shannon, including Mary, 1, mately July July 2009 and 2009 the present Connie. State did not defendant: evidence, circumstantial, direct or manner, knowingly a. acted or proving injuries Jonas caused the fresh rib aided and abetted in acting another in or aided or abetted someone who did. Ac- manner, that created a substantial cordingly, we conclude the in- evidence is physical risk to E.N.’s health or safe- sufficient to support his conviction on ty; or count five. argues prove
5. Jonas also the State failed appellate insufficient evidence for review in a case, the fresh rib fractures were caused criminal the defendant must make a mechanism other than the one that caused judgment acquittal motion for at trial that injuries. E.N.’s brain The State contends Jo- specific grounds ap- identifies the raised on preserve argument appeal nas did not this Truesdell, peal." State v. 679 N.W.2d complain because "Neiderbach did not [at (Iowa 2004). 615 Because we hold the evi- causing that the trial] acts the fresh fractures dence was insufficient under Jonas's first ar- (Count 5) proven separate were not to be gument, we decline to address whether Jonas causing injury distinct from those the brain preserved argument appeal. his second (Count 2).” preserve "To error on a claim of APPEL, (concurring specially). Justice XIY. Conclusion. below, four on counts the convictions I con expressed We vacate For the reasons insuffi- evidence was court and five because of the district judgment clude E.N.’s rib inflicted prove cient to allow for an in camera vacated to must be denying the order reverse injuries. We mental Richardson’s of Jherica inspection in camera review of for an motion Jonas’s under Iowa Code section health records re- health records. We mental 622.10(4) Jherica’s separately, I write (Supp.2011). court to allow the district the case to mand however, the im my views on express Iowa pursuant to Code that review conduct in this case and issues raised portant 622.10(4)(a)(2) de- (Supp.2011) to section Thompson, v. companion case of State contain ex- her records termine whether (Iowa 2013), also decided affirm on all We culpatory information. below, the demonstrated today. As will be exculpatory evidence If no other issues. respect to in these cases with legal issue one, found, on counts convictions Jonas’s legisla whether the statute is not the new affirmed, three, and the two, six are ap “better” than ture’s solution is Jonas. If shall resentence court district Cashen, v. of this court State proach found, then the exculpatory evidence (Iowa 2010), only but 407-10 N.W.2d forth in proceed as set court shall district con approach is legislature’s whether the (d) 622.10(4)faj(2)(c) and to deter- section Mauti, its face. See State stitutional on entitled to a new Jonas is mine whether (2012) A.3d N.J. *38 trial. has en legislature where the (stating that the court’s “own conclu privilege, acted RE- PART AND IN AFFIRMED policy be better about what would sions PART; REMAND- IN CASE VERSED consequence”); of no see also simply are ED WITH INSTRUCTIONS. Sebelius, Bus. v. of Indep. Nat’l Fed’n 2566, 2600, 2608, U.S. -, -, 132 S.Ct. CADY, J., except concur C. justices All (2012) (noting it 183 L.Ed.2d APPEL, and specially, concurs who pass upon role to is not the Court’s HECHT, JJ., WIGGINS, who Federal Affordable Care wisdom of the specially. separately concur pay a individuals requirement Act’s insurance, not obtain health they tax if do CADY, (concurring specially). C.J. constitutionality). only upon rather its but majority opinion, but I in the concur challenged provisions Although express my view separately write may constitutionally proble new statute judicial review statutory standard for I conclude the applications, in some matic Iowa records under Code of confidential inter facially constitutional when statute is 622.10(4) should be (Supp.2011) section below. preted explained through application its definition given thoroughly explore I write to more also basis. As this case-by-case facts on a of photograph of whether the the issue Thompson, and State v. case the medical condition (Iowa illustrate, depicting video 2013), facts into evi- admitted properly E.N. were into the meaning breathe are what should prop- standard, I this evidence this dence. conclude probability” “reasonable addition, I write to elab- erly greater clar- admitted. gain will continue to standard the admission question orate on additional cases contin- ity in the future as hearsay evi- testimony of through expert shape. give ue to dence found in published journal articles. health records to be produced under a I conclude admission of this evidence was protective order designed to safeguard the improper. confidentiality of the records. Id. at 408- 09. rejected We in camera inspection of Surrounding
I. Issues Production of records, explaining that the court “can- Mental Health Records in Crimi- not foresee may what or may not be im- nal Cases. portant to the defendant.” Id. at 409. A. Introduction. Neiderbach recognizes that after our de- Cashen, cision in the legislature amended parties. Positions Neider- Iowa Code section 622.10 adding bach claims the district new court erred in subsection. See 2011 Iowa § Acts ch. denying request his to review Jherica’s (codified 622.10(4) § Iowa Code mental health (Supp. records. According to Neid- 2011)). erbach, Among other things, the new “long postnatal Jherica’s stretch of sub- provides section bizarre behavior before depression” discovery warrant- mental health ed records investigation of her the defense records. Neider- must show bach asserts there “a reasonable probability be evidence in the information sought records “that ability likely would affect her ei- to contain ex- perceive culpatory ther to events information.” accurately or to Iowa Code 622.10(4)(a)(2)(a). credibly § testify Second, in court or may es- [that] the new sub- provides tablish motive.” section Neiderbach claims the that a defendant seeking failure to produce production the mental health rec- mental health records must ords violates the Due Process Clauses of show the information “is not available from the Iowa and United States Constitutions other source.” Id. Once the defendant and his right effectively cross-examine has shown “a reasonable probability that witnesses.6 the privileged sought may records likely contain exculpatory information that is not Neiderbach upon relies our holding in *39 source,” available from other the court Cashen, where we protocol outlined a re- must conduct an in camera inspection of lated to production of mental health the documents to determine whether the records criminal trials. 789 N.W.2d at records contain exculpatory information. 407-10. We required production of mental 622.10(4)(a)(2)(b). § Id. Neiderbach at- health records in a criminal trial when the tacks each of provisions these as a viola- defendant shows “a reasonable basis to tion of the principles Cashen and his rights believe the likely records are to contain process to due and confrontation under the exculpatory evidence tending to create a Iowa and Federal Constitutions. reasonable doubt as to the defendant’s guilt.” Id. at 408. Once a defendant Neiderbach further claims the district made showing, required this we mental improperly court applied section parties 1012, 6. The (Del.2009); address the issues in this case as 968 A.2d 1024-25 State v. involving process due 632, under the United States Kelly, (R.I.1989). 554 A.2d 635-36 I and Iowa question Constitutions. There is a regard argument Neiderbach’s that the dis- whether possession documents in the of a ruling right trict court violated his to effec- private party implicate process standard due tively raising cross-examine witnesses as a protections. When mental health records are claim under the Confrontation Clause of the private party, in the hands of a courts have Sixth Amendment to the United States Consti- applied due-process-type analysis a under the I, tution and article section 10 of the Iowa Confrontation Clauses of State and Federal Constitution. See, Delaware, e.g., Constitutions. Burns v. 222 According to the
622.10(4)faJ(2)(a) of this case. are constitutional.7 to the facts State, a that, Neiderbach failed to show reason among other *40 attacking grounds by on Common responds by abrogated State the other The 122, Dwyer, v. Mass. 859 protocol, improperly wealth 448 arguing Cashen 400, (2006). vein, statutory or rule- 414 In a similar balances a “defendant’s N.E.2d said discovery” “pa Supreme interest the United States Court has based “disclosure, pri suppression, than qualified right constitutional rather tient’s any ordinarily promotes in mental health records.” of relevant materials vacy event, jus the chal of criminal proper State further asserts the administration the 622.10(4)(a)(2) States, Dennis 384 of section tice.” v. United U.S. lenged provisions challenge challenge applied to section 7. constitutional Neiderbach's constitutional 622.10(4)(íi)(2)(c), pro- requires requirement which district limited to threshold duction, need for the role of "available from court to balance the disclosure evidence source,” against privacy if the con- any in camera review interest records other and the exculpatory express I evidence. no view mental health records under sections tain of )(2)(b). )(2)(a) 622.10(4)(a 622.10(4)(a might issue arise under section 622.10(4)(a )(2)(c). facial or as- case does involve a This 1840, 855, 870, 1849, (1974) 347, S.Ct. L.Ed.2d 39 L.Ed.2d 354-56 (holding ju (1966). 973, Thus, while the issues venile records made confidential by statute surrounding production of mental bias); admissible to show witness Cham may health in this case appear records bers v. Mississippi, 298-302, 410 U.S. surface, merely procedural they 1038, 1047-49, on the are 93 S.Ct. 35 L.Ed.2d actually (1973) important much more than that. 310-13 (holding a right defendant’s observed, As Justice Frankfurter “The his present witnesses in own his defense is, tory of American freedom in no small permitted the present defendant to hear measure, history of Ma procedure.” say testimony exception under the for dec York, 401, 414, linski v. New 324 U.S. 65 larations against a penal declarant’s inter (1945). 89 L.Ed. S.Ct. est notwithstanding Mississippi’s failure to recognize such an exception); Washington case, In this we must determine whether Texas, 14, 16-17, 22, 388 U.S. 87 S.Ct. our procedures production related to the of 1920, 1922, 1925, 18 1019, 1021-22, L.Ed.2d mental health records in a criminal case (1967) (holding a criminal defendant’s adequately reliably will allow a defen- right to have compulsory process for ob probative dant access to information that taining witnesses in his defense trumped a possible could bear on his conviction and state prohibiting persons statute charged subsequent long term of incarceration. coparticipants convicted as in the same suppression of important evidence crime from testifying on each other’s be bearing on the truth or the innocence of a half they even if given would have relevant defendant in a criminal trial and the refus- and material testimony). al to look for exculpatory available evi- dence in furthering the name of other so- Importance the doctrine consti- goals cial raise serious questions regarding tutional avoidance to interpretation rights to due process legislative noted, and confronta- acts. As legislature tion, least, say their extreme protocol codified a production forms, represent the underpinning of show mental health records in response to our trials justice systems and the criminal of Cashen decision. The new statute seeks hand, regimes. totalitarian On the other modify protocol Cashen in several unnecessary disclosure of mental key health respects, including substituting in records is inconsistent legislative with the camera inspection of documents for pro- policy privilege behind statutes and our duction of documents parties under recognition privacy interests of men- protective the control of orders. tal health patients. See McMaster v. Iowa Legislative enactments are entitled to Exam’rs, Psychology
Bd. great respect be held constitu- (Iowa 1993). 754, 758-59 tional even if the court disagrees with the broadly
Looking legal at modern devel policy legislature. choices of the At the *41 opments, time, the however, arc of the caselaw seeks to same the legislature cannot ensure a defendant has to deprive access evidence a criminal defendant of his or her See, provide sufficient to a fair trial. e.g., constitutionally protected right pro- to due Ritchie, 57-58, 480 at U.S. 107 S.Ct. at principle cess. Under one of constitutional 1001-02, avoidance, 94 L.Ed.2d at (holding 57-58 due we seek interpret legisla- to a process requires that statutory privilege tive enactment in a fashion that avoids give way to in inspection camera of excul problems. constitutional Simmons v. evidence); Alaska, patory 69, v. Defender, Davis 415 State Pub. 791 N.W.2d 74 308, 318-20, 1105, (Iowa 1111-12, 2010); Nail, U.S. 94 S.Ct. State v. 743 N.W.2d
224 (Iowa sought may 2007); privileged records 535, v. Wieder State 539-40 (Iowa 538, 2006); ien, exculpatory contain information.” likely N.W.2d 542 709 215, 622.10(4)(a.)(2)(b); § 215 216-17 see Kueny, v. N.W.2d Iowa Code also State (Iowa )(2)(a). 1974); 622.10(4)(a v. Tenn. see also Ashwander §id. 348, Auth., 288, 56 S.Ct. 297 U.S. Valley outset, critical to distinguish At the it is (Bran (1936) 688, 466, 483, L.Ed. 712 80 appropriate produc test for between (“‘When deis, J., validity concurring) appropriate and the test for disclosure tion is drawn in Congress act of of an See, e.g., Bishop, records. 617 even if a serious doubt of question, and 996-98; State, v. N.E.2d at Goldsmith 337 raised, it is a cardinal constitutionality is (1995); 112, 866, 651 877 Md. A.2d Stana ascertain this Court will first principle that 575; Green, way, at State v. the statute a construction of whether 356, 298, N.W.2d 309 253 Wis.2d 646 question which the fairly possible (2002). performs test production ” Benson, v. (quoting be avoided.’ Crowell opens the threshold function that door to 296, 22, 62, 285, 52 76 L.Ed. S.Ct. 285 U.S. examining they the records to see if simply (1932))). 598, is an im principle This 619 in fact contain evidence relevant mate land portant judicial feature of review The test for rial to the defense. disclosure applied have Several state courts scape. only after the records have applied been dealing counseling statutes with uphold to to contain examined found material See, Stanaway, e.g., People v. privileges. Any factual and relevant evidence. or le 557, 643, 521 574-75 446 Mich. N.W.2d surrounding the gal questions issue Ritchie, (1994); v. Pa. Commonwealth provided whether documents camera 148, (1985), 357, rev’d on 502 A.2d 151-54 inspection must disclosed to the be defen Ritchie, at 60- 480 U.S. grounds other now dant are not before the court are 1003, at 94 L.Ed.2d 59-60. 107 S.Ct. in this not addressed or determined case. constitutional corollary
A to doctrine of only here We deal threshold test is the notion that statutes should avoidance pertaining production documents. facially found unconstitution lightly not be function, on respect In order to be unconstitutional its With to the threshold al. “ face, every must ‘void for broad appears a statute be there be a consensus that constitutionally ap and cannot be purpose the mere existence of mental health rec ” Eagle Vill. plied any set facts.’ War enough impose ords is not constitu Plummer, N.W.2d Apartments requirement they produced tional 2009) (Iowa Iowa (quoting F.K. v. Dist. See, e.g., criminal case. D.P. v. 2001)). (Iowa Ct., 630 N.W.2d As State, (Ala.Crim.App. 850 So.2d below, application of the doctrine explained 2002) (holding “when a defendant suf requires us of constitutional avoidance to ficiently alleges privileged documents challenged of section provisions find the may contain evidence relevant materi facially 622.10 constitutional. case, an issue in the trial al to court inspect the documents camera should Probability That B. Reasonable motion”); Likely ruling before the defendant’s May Privileged Sought Records (Colo. Ct., v. Dist. 719 P.2d People Exculpatory Information. The Contain 1986) (“The vague assertion that the victim constitutionality first issue is facial her may have made thera statements showing necessary production before *42 might differ from the pist possibly required of mental health records is under testimony anticipated trial does request- that the victim’s namely, the new statute — justify to “a a basis party probability provide show reasonable not sufficient ing 225 (de- (Simon, J., right rely to her 96 ignoring upon dissenting) the victim’s N.E.2d at People v. 121 statutory privilege.”); Foggy, scribing requirement a that the defendant 337, 18, 86, Ill.2d Ill.Dec. 521 N.E.2d 118 knowledge demonstrate of the contents of (1988) (rejecting gen 91-92 a defendant’s a mental health record that defendant the in camera of request inspection eral for an Catch-22”); does not have as “a perfect because the did counseling request records Graham, 357, State v. 142 702 N.H. A.2d provide not indicate records “would a the (1997) 322, (noting 326 a requirement “ impeachment”); Bishop, source of 617 ‘precise the articulate defendant na- (noting N.E.2d at a 994-95 defendant purported ture’ of of contents the rec- to a privileged not have access victim’s effectively ords ... would render review circumstances). in all cases records These superfluous, as the essentially defendant grounded privacy are in notion that would to obtain have the information itself the minimal in interests —even to extent burden”); in order to meet his State v. by inspection by vaded in a camera 899, Gagne, 101, N.H. 612 A.2d 901 judge be sacrificed unneces not —should (1992) courts, (noting trial determining in sarily speculative showings.8 overly warranted, in whether an camera review is Yet, liberty because a defendant’s interests realistically “cannot expect defendants to trial, are at stake in criminal stan a precise articulate the nature of the confi- high. production dard for cannot be too prior dential records without access having Bishop, As noted in “when relevant evi them”). to ... for purpose dence is excluded some enhancing The statute truth-seeking provides party other than Iowa that a function, inno danger convicting good an must in faith show a “reasonable cent at defendant increases.” 617 N.E.2d probability” production the mental 994. “may health records likely” produce excul- patory evidence. Iowa Code Further, Ritchie, impos as noted it is 622.10(4)(a)(2)(b); § also see id. say sible to with assurance that medical 622.10(4)(a)(2)(a). § phrase The “reason- will relevant records contain information probability” able has been in a num- used when no side has seen the records. 480 ber of a number by other statutes and 57, 107 at at U.S. at S.Ct. 94 L.Ed.2d establishing other courts the context of require 57. To a defendant to describe requirement production threshold particularity relevance of informa See, e.g., health mental records. State tion in he has is documents never seen (Fla.1996) Pinder, 678 So.2d something of a catch-22.9 State v. Bas (“To sine, n. obtain camera of confiden- Or.App. 71 P.3d review (2003); ... Foggy, accord 118 Ill.Dec. 521 tial communications or records a de- event, "fishing” sporting analogy I In resist the with a baitless hook won’t do. I many fishing people cannot meta- courts resist. The think it better leave entertaining phor, metaphors, legal analy- like employ all but who fish and for courts to catchy merely phrases than to determine often to state a rather ses rather used conclusion of a provide any meaningful than the outcome case. analysis. fact, because mental health are records phrase available to the defense the time 9. "Catch-22” is a utilized novelist production, Joseph problematic effort is al- to obtain their there Heller to describe "a situ ways "fishing” request. only ation which the is denied element solution boat, lake, problem by even fish is in the not the circumstance inherent in the compelling Collegiate request when the made. Dictio most rule.” Merriam-Webster's (11th ed.2003). might fishing nary It accurate be more to state that
226
result,
proba
while the term “reasonable
a
first establish a reasonable
fendant must
privileged
matters
in
a
bility”
requires
showing
that
the statute
probability
necessary
material information
to
contain
more than the mere fact
that mental
Fuller,
defense.”);
v.
his
Commonwealth
a
health records of witness or accuser
(1996)
847,
216,
N.E.2d
855
423 Mass.
667
exist,
required
plausible
all
is
some
that
is
(“A
an in camera
judge should undertake
theory
in demonstrable fact that
founded
only when
[privileged
of
a
records]
review
in the
suggests the information
mental
production
defendant’s motion
might
prove helpful
health
well
to
records
faith,
good
has
a
records
demonstrated
by
Hamp
As noted
the New
defense.
believing
and reasonable basis for
specific,
Supreme
shire
Court:
exculpatory
the records will contain
necessary
to
showing
threshold
is relevant and material to
evidence which
trigger an
camera review is not undu-
in
abro
guilt.”),
the issue
the defendant’s
ly high.
meaning-
The defendant must
414;
859 N.E.2d at
see
gated
Dwyer,
fully
how
articulate
the information
Stanaway,
(permit
227
theory
plausible
of relevance stan
defendant’s
constitutional
rights
to due
dard is consistent with the United States
process and confrontation.10
in
Supreme
approach
Court’s
United
To avoid
problems
constitutional
under
Valenzuela-Bernal,
858,
v.
States
458 U.S.
Constitutions,
United States and Iowa
871-74,
3440, 3448-49,
102 S.Ct.
73
the phrase “reasonable probability” in sec-
1193,
(1982),
L.Ed.2d
1205-07
where the
622.10(4)(a )(2)
tion
should be construed to
Court held a defendant could not show the
require only a plausible showing that ex-
government
rights
pro
violated his
to due
culpatory evidence may likely be uncov-
compulsory process by
cess and
deporting
ered when the records
are produced.
alien witnesses
absent
some “plausible
upon
Based
interpretation,
above
sec-
showing
testimony
that the
deported
of the
622.10(4)(a )(2)’s
tion
reasonable probabili-
witnesses would have been material and
ty threshold meets constitutional muster
favorable to his defense.” See also Wash
under the Due Process and Confrontation
23,
ington,
1925,
388
U.S.
not be useless and will offer evidence of a different persuasive content or quality. next, Introduction. The and most difficult, constitutionality issue is the facial however,
Importantly,
to the extent evi-
of the in
inspection
camera
of documents
might
dence
be available to
degree
some
that meet the
requirements
threshold
un-
source,
from another
the decision of
der
statute.
See
Iowa
whether the other
Code
comparable
source is
to
622.10(4)(a)(2)(b).
§
blush,
At
may
medical or mental health
first
simply
record
seem
cannot be made
in camera inspection by
with confidence until
district
entirely adequate
record has been
court is
produced
satisfy
and a
to
compari-
son made
quality
between the
the demands of the due
persua-
process
and con-
power
sive
of the record
provisions.
and the other
frontation
court
District
conscientious,
source. With
approach,
judges
other
the trial
are
they know the
law,
court would be conducting a
they
expected
blind and
can be
to apply the
comparison.
irrational
algebra
To use an
dispassionate
law in a
manner. We trust
records from the
messy
fact- view the mental health
leave
judges. We
our
(who has
perspective of the defense
not
discretion of
issues
the sound
bound
them)
they
if
contain
seen
to determine
story,
next case.
court. End
district
potentially exculpatory evidence. This
under the hood of
But if one looks
judge
to do. The
be difficult
potential
finds
diffi-
inspection,
camera
one
evaluating arguments, but
also
simply
from lack
The difficulties arise
culties.
required
anticipate arguments
the district court is
focus on
issues
might
made
defense counsel. As
consider,
perspec-
the limited
required
Dennis,
Supreme
noted
Court
considering
the district court
tive of
enough
adversary system, it is
“[i]n our
records,
prac-
the substantial
relevance
judges
judge.
The determination of
in cam-
with the
problems
tical
associated
*47
may
what
be useful to the defense can
inspection
evaluation of mental
era
only
effectively
by
made
properly and
be
records,
difficulty
pre-
and the
health
875,
ally tightly
particular pieces
focused on
result,
As a
review the district court
evidence a
seeks to offer.
party
of mental health records will necessarily
622.10(4),
under section
cases
howev- be less concrete and
greater
at a
level of
er,
the defense will not know what is
abstraction than if the records were avail-
result, sharply
records. As a
focused able
*48
an appropriate pretrial
under
protec-
See,
briefing will be impossible.
e.g.,
counsel,
tive
by
order for review
defense
Further,
Gagne,
fore a trial lack information c. Practical limiting an in- difficulties about the facts of a case or defense to review—volume exper- and lack formed of indictment, are all and too often un- may tise. The district court also face to recognize significance, able or in- practical obstacles in conducting the mean- significance, particular of a document to ingful required review comport to with due a defense. process. may The mental health records 859 at N.E.2d so, be If quite organi- voluminous. sensible
The problem lack-of-focus is exacerbated zation of the material appro- is critical for by timing priate issues. The defense will often review. References abound with part pre- lawyers seek mental health records as regarding optimal instructions Timely may However, court, trial efforts. organization. disclosure be the district resources, critical to the development may of trial strate- with its limited not be Hammon, gy. See v. People 15 Cal.4th good position accomplish preliminary Further, Cal.Rptr.2d organizational 65 988 P.2d 994 tasks. aside from (1997) (Mosk, J., records, concurring) (noting a de- the voluminous nature of the requires fendant often prepara- advance district court must understand the infor- tion they for the cross-examination of an ad- mation contain. As noted one judge stage? Ignore exculpatory defendant. What does the do at this evidence? arm a medi- may may required ar- itself with
authority, records not be be “the fashion, dictionary, Diagnostic cal the latest in a abbreviations ranged uniform Manual of Mental Disorders Statistical abound, comments are often handwritten (DSM), references pharmacology will listed illegible, procedures be import order of the rec- to understand Hodge, See Samuel D. diagnostic codes.” required, court may ords. The district Jr., Mystery Medical Unraveling the instance, significance to understand (2006). Records, Law. Prac. impact diagnosis prescription of a or People McCray, 102 A.D.3d drags memory, recall. perception, provides an (App.Div.2013), N.Y.S.2d 511 armed, Even a district court not be so example potential of these difficulties. position in a mental very good to evaluate had McCray, inspected the trial court respect health to sophisticat- records of the victim’s mental pages thousands “suggestibility, ed issues such as undue determine what should health records to contamination, influence, memory the defense. Id. at 519. be disclosed to monitoring.” Camp- source Terence W. Eventually, twenty- the trial court selected Lorandos, bell & Ex- Demosthenes Cross eight pages “pertinent that it found in the Sci- amining Experts Behavioral Id. at case” disclose to defense. 2012) ences, 10:67.1, Sept. § at 174 (Supp. 518; J., (McCarthy, dissenting). id. Campbell & [hereinafter Lorandos]. that, dissenting opinion indicates fol- Thus, practical problem another lowing a review of the thorough documents exper arises lack of is the district court’s chambers, setting appellate in the calm reviewing tise records. mental health many arguably more should documents treatise, leading judge According to a “the have been Id. at A bare *49 disclosed. 523. likely any not have of scienti degree does majority appellate of the five-member fic if a training expertise and to determine agreed had court the dissent unearthed record has psychological information “relevant vic- additional documents to the may prove defendant.” exculpatory to the competence testify,” tim’s to such as refer- 10:67.1, § in a example, Id. at 171. For memory the ences to victim’s “short-term case, Georgia a defendant in a child moles loss,” but nonetheless found the district required tation in the case was to establish diligent court had not “failed in its efforts exculpa trial that records court contained pages of through to cull thousands of men- tory them. seeing information without tal health records to balance the victim’s State, 306 701 Ga.App. Tidwell v. against rights rights defendant’s such as (2010). S.E.2d 922 After in camera would an abuse of constitute discretion.” inspection, the trial the court concluded (majority opinion). any Id. at 518-19 should not be to the de records disclosed event, McCray poignantly illustrates the The appellate fendant. Id. “ court noted with problems associated burdensome re- who a trial challenges ‘[a] defendant busy view of by voluminous documents inspection appeal in camera court’s courts, trial, in the midst trial often sup must what information was show subsequent review. appellate pressed materially exculpato and how it is ” State, If the district court is to conduct an ry.’ 293 (quoting Id. at 923 Dodd v. (2008)). inspection in informed camera that com- S.E.2d Ga.App. writers, ports process, with due the district court treatise this re According to the reasons, get actually must the bottom of what the problematic sult is two in the mental health records. A blind first of which is that is no basis “[t]here any law or review of the issue to review is no The court scientific review. district nurses, judge’s trial doctors or capacity provide faith in a needed place explanations. involved in issues understand science & Campbell in a child case.” joined sex likelihood, In all court may district 171; 10:67.1, Mar- § at see Lorandos also well be as situated to examine volumi- McAuliff, Bradley Bull D. Kovera & garet nous mental health records. A district Review and Peer Evidence will, doubt, Effects of judge court no examine the Quality Psycho- on Judge Evaluations line, by records line and make a conscien- Judges Science: Are Ga- logical Effective tious effort to if there is determine rele- tekeepers?, 85 Applied Psychology J. evidence, material vant and but because of (2000) training the scientific (finding necessarily court’s restricted informa- help judges may receive be insufficient to experience tion base and its lack re- recognize psychological flaws them records, comprehensive review of medical search, missing groups such as control likely will review take more time and experimenters). The rea- nonblind second precise be less than if conducted son, authors, according treatise counsel. To the meaning extent the catch-22: “If the de- the aforementioned fully records cannot be plumbed without records, how fendant has not seen assistance, logistical outside or expert they is in would know what information district court could be a disadvantage at materially exculpato- and how it them compared attorney with access to 10:67.1, § ry?” Campbell & Lorandos And, course, such help. additional Thus, Georgia approach, 171. under by the court examination district will al- by implication approach other certainly most be more time-consuming mental jurisdictions, seeking defendant than review an informed advocate with win for Id. losing.” health records “cannot eye germane a clearer evidence. Avoiding problems constitutional Once the medical information been has inspection. camera Our desire an in translated, sensibly arranged, general- problems to avoid the real and substantial understood, next ly practical concern inspection led to poses ap- camera our judicial A that arises is careful review. *50 proach in Cashen. are several in- There competent ac- attorney representing an terpretive procedural approaches it cused would see to the mental however, available, might be em- to by health records are examined line line ployed potential address the difficulties. to (1) the determine whether records contain Anticipatory by parties. evidence to the a. the briefing direct related crime (2) extent, may other evidence to ac- miti- question; parties related To a certain the case; potential gate problems inspection tual or factual issues in the the of in camera (3) briefing that an- impeachment, by presenting meaningful evidence useful for wit- district court including by ticipates inconsistent statements the difficulties the is ability or of face. For the district likely example, ness evidence related to the to may accurately perceive, compre- expertise the witness to court’s lack of medical be hend, by In materi- attaching appropriate recall events. a voluminous remedied file, als, an attorney expert’s indicating the involved make such as affidavit would many judgment potential possible calls about the the relevance of discov- value records, pages ad- medical from presented potential information its eries the Further, DSM, likely if or other material missibility. there is doubt con- the source record, helpful court. The cerning meaning the of a to be to the district counsel however, will be unable to may experts, parties, retain the of still services such alone or inspect lack could the documents court because of the of court fully assist the of counsel. The bottom presence the actual contents of in the knowledge regarding anticipatory submissions court finds itself Any line is that if the district the records. retain a cart-before- necessarily still mental meaningfully will unable to review the flavor, counsel well-prepared but the-horse particu- in the context of a health records extent, able, to be at least some to should be to request, may there an avenue lar might anticipate the district court the tools of parties obtain the assistance inspection. for in camera need effective rights of the de- protect constitutional fendant. supplemental submis- b.Request for court never en- The district should sions. re- interpretation c. Reasonable of of mental gage in uninformed review production. Because the de- quests for course, problem, The of health records. opportunity to review fense has not had an one not knowing one of what does know. motion requested prior records by review Production of documents for should production, for district courts however, court, only an interme- district tra- narrowly such motions. The interpret step. If the district court is unable diate eye skeptical judicial ditional to evidentia- whether the mental health to determine replaced by district ry issues should be may records contain information that be understanding of court’s commonsense germane to the case because of the court’s seeking problems faced defense counsel supple- it expertise, lack seek had an production of documents has not Re- parties. mental assistance The court opportunity to see. district shaped for quests assistance could that under the circum- must understand avoid disclosure confidential records stances, advocacy general, will be more if possible, but an informed review
where
precise,
ordinarily the
and less
than is
by the
court is not
without
possible
district
calls,
involving
case.
cases
close
disclosure,
necessary
some
disclosure is
tilt
the side of
district court should
re-
existence of an informed
ensure the
ordering production
inspec-
camera
safeguard
can
view. The court
continue to
Green,
at
tion.
N.W.2d
confidentiality by entering appropriate
protective orders. Disclosure to defense
Recognition
obligation
d.
to revisit
expert
or-
appropriate protective
under
Any
pre
order on a
preliminary orders.
der, therefore, may be an
option
assist
motion
production
trial
or disclosure
the district court in its review.
subject to
preliminary,
must be considered
request
later review the court
inspection
in camera
notion
*51
Rit
teaching
the defense. This is the
of
by
may
judicially
other
complemented
59-61,
at
chie. See
235 rulings after evidence has come in and be in position While to vindicate due informed, will be better and therefore process rights subsequent if events show accurate, they necessarily will more be less the defendant has been deprived of timely That the down for defense. important might evidence that help estab- inspection side inherent in an in camera lish factual innocence. Once disclosure is made after the regime. e. Entry appropriate order provid of evidence, receipt of the defense is entitled ing meaningful appellate review. In the im period to a reasonable to consider addition, in order to process, ensure due readjust of the pact evidence and its strat the district court enter appropri should cross-examination, egy. Effective howev ate order that provides for meaningful ap er, ordinarily developed fly. is not on the so, pellate review. To do the district court Clark, 551,
See State v.
814 N.W.2d
568 should outline the manner in which it re
(Iowa 2012)
J.,
(Appel,
dissenting);
see
records,
viewed the
generally outline the
Hammon,
Cal.Rptr.2d
also
65
938 P.2d factual and legal
presented
issues
in the
(Mosk, J.,
at
concurring);
994
William F.
produce,
motion to
provide
a sufficient
Conour, Use
Statements in Medical
explanation of the court’s decision. Where
Witness,
Examining
Records in
52 Res
a defendant
production
claims the denial of
(2009)
trial,
(“Before
Gestae
42
medical
process
violated due
rights, appellate re
to be thoroughly
records need
and careful view will be de novo. See State v. Rain
ly
light
reviewed
counsel
of all the
(Iowa
song,
2011);
anticipated
testimony
evidence and
to de Cashen,
e.g., Commonwealth
992,
(1991);
867,
credibility”
ordinarily
issue
570
1002-03
of
and should
Mass.
N.E.2d
427,
parties.
to the
See also Com
Lloyd,
v.
523 Pa.
567 be disclosed
Commonwealth
193,
(1989),
1357,
Figueroa,
v.
413 Mass.
most have followed monwealth
595
A.2d
1360
(1992)
Ritchie,
Fishman,
779,
(holding
785
that
in
see
86 N.E.2d
approach
as
at
113.
one of the
is indecent
charges
L.Rev.
29 & n.
“where
Or.
battery
mentally
sault
on a
retarded
chosen
legislature
provide
Our
has
to
person, the defense
must be enti
counsel
perceives
great-
to
what it
patients
concerning
tled to review the records
privacy rights
of
their
protection
er
witness’s
of retarda
complaining
condition
in
in-
through
mechanism
camera
tion”).
pro
records
When
show evidence
goal,
In
to achieve
order
spection.
recall,
key
ability
bative
a
“to
witness’s
procedure
chosen a
legislature
has
comprehend,
relate
accurately
organizing,
the burden of
under-
shifts
subject
testimony,”
matter of the
the men
standing,
winnowing
mental health
ordinarily
privilege
give
tal health
will
a
parties operating
records from the
under
Barroso,
554,
way.
v.
122 S.W.3d
State
in
order to the district court
protective
Gonzales,
(Ky.2003);
563
see also State v.
camera.
421,
297, 299,
121 N.M.
302-03
P.2d
mitigating approaches
imple-
If the
are
(holding
(Ct.App.1996)
the district court
opinion,
in this
I
mented as described
am
did
abuse its
in ordering
not
discretion
challenged
conclude the
prepared
not
to
production
psychotherapy
records for in
622.10(4)(a)
violate
provisions
section
inspection
camera
where the defendant
the Due Process or Confrontation Clauses
“had
complaining
showed the
witness
a
of the Iowa or Federal Constitutions on
blackouts from
history of
alcohol”
had
relatively simple
face.
their
some
allegedly consumed alcohol and cocaine on
cases,
inspection may
in camera
work
offense).
alleged
night of
Similar
merely
in
quite
example,
well. For
cases
ly,
defense
where the
demonstrates
a
showing
not
routine treatment
related
given
witness has
inconsistent statements
time or substance to events related to the
crime,
events
regarding
surrounding
trial,
may readily
criminal
the trial court
relating
mental health records
to those
conclude that
should
occur.
disclosure
obviously subject
production.
events are
to
See,
Howard,
e.g., State v.
Conn.
Peseti,
See
65 P.3d
129-30.
(1992)
(upholding
604 A.2d
however,
cases,
complex
In more
cam-
decision, after inspecting
district court’s
may
inspection
era
not work so well. De-
records,
nothing
in the
psychiatric
inspec-
termination of whether in camera
remotely
records
related
witness’s
tion
applied
be unconstitutional as
events);
ability
testify
perceive
to
or
see
given
case must await a concrete contro-
Jackson,
v.
Conn.App.
also State
versy where the district court declines to
(Ct.2005)
A.2d
(upholding
provide
requesting
to
party
evidence
deny
trial court’s
decision
defendant
or where a claim is asserted that the dis-
that did
access
records
“not contain
engaged
inadequate
trict court
or
exculpatory
impeachment evidence or
blind review.
relating
ability
evidence
[to
victim’s]
correctly
comprehend,
Application
principles
know and
relate the
this
truth”).
hand,
On
in case. I
that Neiderbaeh has met the
agree
the other
noted
Lindstrom,
camera
requirement
States
698 F.2d
threshold
for in
in-
United
*53
(11th Cir.1983),
Clearly, he
spection.
certain
has offered more
mental disor-
generalized request
than a
for records.
cess to potentially exculpatory evidence
He
shown that the
may
has
records
reveal
in
contained mental health records.
If this
problems
mental health
reflect on
case,
turns out not to be the
however,
ability
perceive
Jherica’s
to understand or
may
there
be occasion to revisit the issues
at about the
events
time
the crime and posed in
appeal.12
this
regarding
ability
raise issues
her
to nar-
statute,
Applying the
I conclude that the
Barroso,
562-63;
rate. See
at
S.W.3d
mental health
sought by
records
Neider-
Gonzales,
are admissible an probative value on issue patholo- a offered has testimony the of derstandable Metz, evidence has case. Id. at 8. If the See, 636 N.W.2d the e.g., State v. gist. 2001). event, value, (Iowa inquiry our next asks 94, any probative In the 99 the evidence whether admission of any error argues nonconstitutional State substantially prejudice to a new trial cause unfair not entitle Neiderbach would Id. at probative its value. 9-10. because, outweighs of evidence of light the other photo- the of the injuries, admission E.N.’s question, ques- first there is no On the injuriously did affect and video not graph videotape the in the has tion that evidence miscar- rights create a Neiderbach’s value. E.N. suffered Whether probative See, Parker, justice. e.g., of State riage of child injuries a result abuse serious as 2008). 196, (Iowa N.W.2d 209-10 litigation. in the important issue was injuries in E.N.’s The video demonstrates Discussion. B. the way. It true that evi- powerful a Rule Evi- 1. Relevance under Iowa of to some extent cumulative of dence was outset, I consider At the dence 5.4-01. testimony, probative evi- expert but where to the evidence as challenge Neiderbach’s cumulative, merely the dence is admissibil- Rule no relevance under Iowa of having left to the ity generally determination is I argument. 5.401. the reject Evidence judge. of court discretion the district 5.401, if rule is relevant it evidence Under 432, Maxwell, 222 State v. N.W.2d tendency make the existence “any has to 1974). (Iowa However, persuasive the consequence that is to of fact of the Thus, power of video is clear. probable more action determination cumulative, merely was not but of- video than would be without probable or less of to in a fered evidence serious harm E.N. evidence.” Iowa R. Evid. 5.401. The convincing persuasive fashion. Nota- relatively a low standard for relevance is stipulate bly, the defense declined bar, the hur- jumped and I find the State a issue of whether E.N. suffered serious respect photo video. dle and, result, injury prosecution Clearly, photo and the video contained its with the available prove free to case E.N. suf- evidence that tended to show evidence. injuries. fered serious inquiry, Turning second Crom “ ‘ prejudice” Iowa under Rule “Unfair ... prejudice” er we stated “unfair I consider Neider- Evidence now 5.103. tendency suggest undue means an deci argument more substantial bach’s basis, improper commonly, on an sion have should been excluded under evidence necessarily, an emotional though ” 5.403. This rule Iowa Rule Evidence (quoting Old one.’ N.W.2d at 9 Chief may ex- court provides district 180, States, v. United 519 U.S. probative “if its clude relevant evidence L.Ed.2d S.Ct. substantially outweighed value is (1997)). also evidence that We referred to unfair Iowa R. danger prejudice.” danger prejudice as a presents of unfair Evid. 5.403. Id. at baggage.” 9-10. piece “unwanted cases, upheld evi- have district considering admissibility In certain we 5.403, proffered first es- decision to exclude evi under rule we must court’s dence collateral legal prejudicial dence that contained legal tablish the framework. to the elements of the baggage was well in State v. unrelated framework described 2009). instance, (Iowa Cromer, we have underlying crime. For 8-10
239 baggage may to exclude eral are they a district court’s decision excluded if upheld a undress merely quite gruesome. of decedent’s state of cumulative and evidence See, Poe, the time of an e.g., 113, the waist down at State v. 21 441 from Utah 2d (1968) 512, in a state’s involving case our P.2d 514-15 (holding accident the trial shop Argosy Gaming act. Horak v. admitting court its discretion in dram abused 2002). (Iowa Co., 137, N.W.2d 149 We during 648 color slides made the course of that should autopsy depicting have also held a district court af- deceased’s skull brain). testimony a police have excluded officer’s ter removal of But see State v. (Utah (re- Wells, 810, 1979) and vio prior a defendant’s arrests about 603 P.2d 813 patted he why lent when asked jecting tendencies a defendant’s contention pho- weapons down for because tographs gunshot the defendant victim’s wounds very for such evidence weak the need “was should not have been evi- admitted into dence). case,” primary issues in of our light generally Some older cases already officer had testified about reject approach. seem to this v. “[t]he See State valid, Hickman, 512, (Iowa ... nonprejudicial reasons two other N.W.2d 337 515-16 1983) conducting pat-down,” “evi (noting dis- “[t]rial courts have violent nature determining [the defendant’s] dence cretion in whether the value only passions serve to inflame the pictures could as evidence outweighs their Martin, State v. jury.” grisly 704 N.W.2d and that pictures nature” “[d]eath (Iowa 2005). present ordinarily In the they 671-72 are not excluded because however, case, bag there is no collateral ... gruesome are for murder is by nature Rather, business.”); the claim is made gage. gruesome accord State power Seehan, (Iowa 1977); probative simply evidence was too 258 N.W.2d ful, emotional-laden, Lass, (Iowa admitted too to be State v. N.W.2d 1975). under rule 5.403. event,
We have occasion held that evidence we need not decide wheth- be excluded under rule 5.403 where should er relevant videos or do photographs that there was not collateral but baggage not baggage may contain collateral never confusing the evidence was too where on unfair prejudice grounds be excluded encouraged jury to make unwarranted solely of their emotional because content. example, For in State v. assumptions. powerful, The evidence this case was (Iowa Huston, 537-38 power objective but arose from the 2013), testimony depart we held that the injuries was nature of the child and human ment of services considered child- staging not or presenta- due dramatic report abuse founded should have been was not gruesome, tion. The evidence because of of unfair danger excluded confusing, and it did invite was not on the in In re jury. Similarly, influence conclusions. cir- unwarranted Under the Stenzel, case, 705- Detention N.W.2d cumstances of this I conclude there is (Iowa 2013), testimony we held from an unfair prejudice not sufficient to reverse regarding process which the expert the district court’s decision to allow intro- which become state decides inmates will evidence. duction of the sexually pro subject predator violent Expert III. Issues Related to Testi- under
ceedings should have been excluded mony. rule 5.403. photo- A. of the Parties. authority
There
some
Positions
Neider-
testimony
carry
of a crime
collat- bach
the admission of
graphs
challenges
that do not
testify,
and the de
experts
evi- he
unavailable
regarding
prosecution
two
*56
prior opportunity
fendant
had a
for
had
published
in articles
contained
dence
Neiderbach notes the
cross-examination.”
Dr.
expert,
The first
journals.
medical
Jenny
Dr.
article cited
states
Pediatrics
Smith,
testimony about an
offered
Wilbur
respect
twenty-eight persons
story
nanny who
recounting the
of a
article
“
babies,
shaking
who
their
‘No
admitted
to
physician and admitted
worked for a
during hospitaliza
statement was obtained
baby, thereby producing
having shaken
during
All
came
police
tion.
confessions
expert,
injuries. The second
Dr. Carole
custody
investigation,
weeks or
judicial
testimony
study in
about a
Jenny, offered
” Appellant’s
diagnosis.’
months after the
twenty-
which
journal
the
Pediatrics
35
et
(quoting
Br.
Catherine' Adamsbaum
to
babies
eight
shaking
admitted
persons
al., Abusive Head Trauma: Judicial Ad
subsequently found to have seri-
who were
Repetitive
Highlight
missions
Violent
injuries.
brain
ous
(2010)).
Shaking,
Pediatrics
549
126
claims the
should
Neiderbach
evidence
“
Neiderbach,
According
an ex
‘[w]here
hearsay.
as
Neider-
been excluded
have
merely
acts
pert
well-credentialed
did
the
claims the State
not show
bach
hearsay,’
conduit for
such testi
testimonial
scope
within the
of Iowa Rule
hearsay was
mony
right
violates a defendant’s
to con
5.703,
expert
which allows an
Evidence
(quoting
at 36
frontation.”
Id.
United
type
on facts or data if “of a
rely
Ramos-Gonzáles,
v.
664
States
F.3d
5
upon by
in the
reasonably
experts
relied
(1st Cir.2011)).
forming
or in
particular
opinions
field
State,
Iowa Rule of
citing
Evidence
subject.”
Neiderbach
upon
ferences
5.703,
experts may rely
upon
maintains
Barrett,
v.
points to State
445 N.W.2d
facts or
otherwise inadmissible
data in ar-
(Iowa 1989),
stated,
in which
“The
we
riving at
if
opinions
their
such facts or
data,
rule,
under
would
usual facts or
“reasonably
data are
from sources
derived
results,
or other
ordinarily be lab
test
particular
upon by experts
relied
charts,
texts, etc.” Neiderbach asserts
Brown,
field.”
Brunner v.
See also
State failed to meet the founda
that the
1992)
(Iowa
(examining
N.W.2d
34-37
of rule
Even if
requirement
tional
5.703.
5.703).
maintains
rule
The State
that Drs.
requirement,
this
Neider-
the State met
simply
upon
Smith
relied
infor-
Jenny
Sales,
under C.S.I. Chemical
argues,
bach
pub-
mation
contained in
that was
studies
Products,
Inc.,
Mapco
Inc. v.
Gas
journals
in prestigious
lished
medical
(Iowa
528, 531
Ct.App.1996),
N.W.2d
widely
physicians.
accepted by other
Fur-
“only
should then
admitted
[be]
evidence
ther, the
argues
State
the evidence
for the expert opin
the basis
explain
only
admitted not for its truth but
to show
ion,”
its truth.
not for
experts’ opinions.
the basis
See
contends
Xtra, L.L.C.,
Neiderbach also
the admission
v.
Gacke
Pork
N.W.2d
testimony
(Iowa
(“[E]vidence
violated the
2004)
Confrontation
admitted
the State and Federal
Clauses of
Constitu
under
is admitted
the limit-
[rule 5.703]
cites
tions. Neiderbach
purpose
showing
ed
the basis for the
Crawford
36, 53-54,
541 U.S.
124 S.Ct.
Washington,
expert
it is not
opinions;
witnesses’
admis-
177, 194(2004),
1354, 1365, 158 L.Ed.2d
sible as
evidence of the mat-
substantive
therein.”).
Because
proposition
Confrontation
ters asserted
the facts
truth,
of the Federal Constitution bars
and data
not offered for their
Clause
were
claims,
testimony
testimonial
of a
the State
is not hear-
statements
“admission
(c).
say under
Rule of Evidence
appear
not
Iowa
5.801
witness who did
at trial unless
evidence,
respect
according
enough
With
to such
that an individual expert purports
to the State the defendant is entitled to a
rely upon
Further,
the data.
Id.
(which
limiting instruction
Neiderbach did reliance upon the data must be reasonable.
request)
but not exclusion. See Brun An expert’s determination that his reliance
ner,
7 Laurie
Iowa Practice Ser-
sufficient to allow an expert to introduce
(2012).
Evidence,
5.703:4,
§
ies:
at 715
hearsay under the
excep-
learned treatise
tion. A leading
regard
case in
this
Hearsay
Excep-
B. The
Rule and its
Inc.,
Meschino v. North
Drager,
American
tions.
(1st
Cir.1988),
841 F.2d
434
which
Iowa Rule
Evidence 5.708. Rule
stated:
5.703
hearsay
allows
testimony
“[i]f
type reasonably
upon by
relied
experts
days
research,
In these
of quantified
particular
in forming opinions
field
pressure
publish,
an article does not
upon
subject.”
inferences
Iowa R.
reach the dignity of a “reliable authori-
Evid. 5.703.
emphasized
have
ty” merely
editor,
We
rule
because some
even a
5.703 is
give experts
one,
“intended to
appropri
reputable
most
sees fit to circulate
work,
ate latitude to
their
Physicians
conduct
not to
engaged
it.
research
enable parties to shoehorn otherwise inad
write
of papers during
dozens
a lifetime.
Stenzel,
missible evidence into the case.”
Mere publication cannot make them au-
The
of Meschino
been
instance,
the idea that the
sufficient to “substantiate
by
For
dorsed
commentators.
accepted
Wigmore:
authority”);
A books were
Dawson
the authors of The New
(3rd
Expert
Corp.,
on
Chrysler
Treatise
Evidence:
Evidence
v.
F.2d
Cir.1980)
that an
(concluding
“[t]he
note that
fact
article
from
quotations
two
peer
after
review in a
published
editorial
reports on automobile crashworthiness
journal
or medical
respected scientific
prepared
Depart
for the
States
United
to
reli
qualify
not sufficient
article as
Transportation
ment
were admissible
authority.”
Kaye,
David H.
E.
able
David
exception
under the learned treatise
where
Bernstein,
Mnookin,
&
L.
Jennifer
The
opponent’s
inferentially
experts
one of the
on
Wigmore:
New
A Treatise
Evidence:
and the op
conceded its authoritativeness
(2d
5.4.2,
§
at
Expert Evidence
trial).
ponent
object
not
at the time of
did
ed.2010)
Wigmore].
The New
[hereinafter
Application
3.
rules to the testimo-
authors,
Thus,
the treatise
according to
ny
expert,
The
Dr.
Dr. Smith.
State’s
“the ultimate test of whether
article is
Smith,
hearsay
about
sought
testify
authority
respectabili
a reliable
is not
nanny
appar-
who
statements made
ty
journal,
of the
but the authoritativeness
ently
violently
shaken
having
admitted
5.4.2,
particular
§
article.” Id. at
of the
found
subsequently
babies who were
application
As an
example
objected
injuries.
have
Neiderbach
rule,
Wiggins
this
the treatise cites
State,
hearsay grounds
the admission
Dr.
104 So.2d
Ala.App.
(1958),
testimony
nanny’s
related to the
where an Alabama court ruled that
Smith’s
response,
statements.
the State elicit- was published
journals
“in
typically relied
testimony
ed
from Dr. Smith that
on in the medical field.” Dr. Jenny re-
hearsay
in
published
was contained
re-
sponded that the
published
article was
in
port
“good
journal.”
Pediatrics,
medical
journal
of the American
defense at trial countered that the State
Pediatrics,
Academy of
which
Jenny
Dr.
had
satisfied the learned treatise ex- described as “the most prestigious journal
rule,
ception
hearsay
noting
in the
pediatrics.”
field of
The district
“we don’t even know the name of the
court
then admitted the evidence over
article or
journal
pub-
which it was
objection.
Neiderbach’s
Nonetheless,
lished.”
the court after this
The admission of this hearsay was also
record was
objection.
made overruled the
error. The State did not establish that the
I conclude the court erred on this record
or data in the article were the kind of
facts
allowing testimony
regarding state- material
upon by
relied
experts in the field
ments made
nanny.
The State
under rule 5.703. The same is true re-
made no effort to establish that the hear-
garding any admission of the material un-
say was considered reliable in forming
5.803(18).
der rule
Although may
opinions by
experts
the field under Iowa
generally
Pediatrics
prestigious
is a
Stenzel,
Rule of Evidence 5.703. See
827 journal typically
upon by
relied
experts in
*59
N.W.2d
704. While the State offered
field,
the State did not establish that
testimony
some
related
fact that the
specific
journal
article in the
was of a
hearsay
published
good
was
in “a
medical
type upon which experts in the field ordi-
journal,”
qualify
this is not sufficient to
for narily rely.
admissibility under the learned treatise ex-
Prejudicial
5.
error. As noted in Sten-
Co.,
ception.
City
See Twin
Fire Ins.
zel,
only
we
find reversible error when
1183; Meschino,
F.3d at
abuse cases having confessed to shaken trial,
their children. At the State asked Jenny
Dr. whether the study Adamsbaum notes Neiderbach mental health rec the dis that the probability to able presented he evidence things, marijuana sought likely exculpa were to contain ords that Jherica smoked trict court instead, and, only tory dem information showed she had pregnancy, her during might conduct, that the records contain possibility pattern of dishonest onstrated addition, exculpatory information. taking while admitted frustration that she failed to son, show she flashed State contends Neiderbach her newborn care of was unavailable days sought trau information two after her son’s her breasts Finally, the State other sources. injury, that she threatened to from matic brain that to extent Neiderbach has get jail, and that asserts herself to out of starve produc burden on of report question that met his a funeral she called home records, the in ser mental cam about tion of health inquire had died and her son inspection provision section though even he was alive. era prices vices )(2)(b) 622.10(a con constitutional under argues court’s Neiderbach the district Ritchie, 39, v. 480 U.S. 57- Pennsylvania not meet the that this evidence did clusion 40, 58, 989, 1001-02, men 94 L.Ed.2d 107 S.Ct. statutory production threshold for (1987), contrary to and because a defendant will records was 57-58 tal health Anfin (Iowa State, identify sought the information 758 505-06 have son v. N.W.2d enabling reasonable 2008), possible specificity, we found was where there potentially district court better find ex postpartum depression between nexus culpatory cites evidence. infanticide. Neiderbach also cases witness’s mental condition noting a Evidentiary privilege right about or she testi events which he time of “every man’s a criminal defendant ” See East impact credibility. fies can v. Supreme As noted evidence. Cir.1995) (5th Scott, F.3d Massachusetts, “when Judicial Court of mental health records can cast (noting from relevant evidence is excluded the tri accuracy testi on the of a witness’s doubt other than process purpose al some Lindstrom, mony); v. United States function, enhancing truth-seeking (11th Cir.1983) (“Certain F.2d convicting an innocent defendant danger high proba of mental disorder have forms Bishop, increases.” Commonwealth credibility.”). on the tive value issue (1993), 617 N.E.2d Mass.