EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, November 16, 2010

Shield And Sword: Court Of Appeals Of Iowa Finds Prosecutor Improperly Used Rule 607 In Murder Appeal

Like its federal counterpart, Iowa Rule of Evidence 5.607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

It is well established, however, that the State can only use this Rule as a shield and not as a sword, i.e., that the State is not entitled  to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible. And, as the recent opinion of the Court of Appeals of Iowa in State v. Bush, 2010 WL 4484401 (Iowa App. 2010), makes clear, if the State uses Rule 5.607 as a sword to get the defendant's confession(s) before the jury, an appellate court is likely to reverse.

 In Bush, Jacovan Bush was convicted of first-degree murder in connection with the shooting death of Thomas Horvath. After the shooting, Richard Beets and Reggie and Ricky Beard each made statements to the police in which they claimed, inter alia, that Bush admitted that he shot Horvath. Each of these men, however, recanted their statements before trial.

With their recantations in hand, Bush's attorney filed a motion in limine seeking to exclude the three men as State witnesses. He argued:

It is believed the State will call these witnesses in an effort to put inadmissible hearsay (their prior statements) in front of the jury under the guise of impeachment.

The district court denied the motion, reasoning that the State would not call these witnesses "for the sole purpose of impeaching the witness with hearsay that is favorable to the State." The court stated these witnesses would also presumably "set the stage for the shooting" and describe "incidents following the shooting."

The case then proceeded to trial, and the State basically called all three men for the sole purpose of impeaching them with evidence of their prior statements to the police. At least, that what the Court of Appeals of Texas, Houston, found in reversing Bush's conviction, finding "[o]n the face of the record,...the elicitation of details surrounding the crime was nothing more than a subterfuge for the real purpose of introducing the recanted statements." Furthermore, the court easily found that this error was not harmless based upon the obviously damaging nature of each of these witness' statements.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/11/607-state-v-bushslip-copy-2010-wl-4484401-tableiowa-app2010.html

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