The Price Of Admission: Court Of Appeals Of Iowa's Best Evidence Ruling Depends Upon Rule 1007 But Doesn't Cite It

Like its federal counterpart, Iowa Rule of Evidence 5.1002, Iowa's Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, an original is required, except as otherwise provided in these rules or by statute.  

Also like its federal counterpart, Iowa Rule of Evidence 5.1007 provides that

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.  

While the Court of Appeals of Iowa did not mention Rule 5-1007 in its recent opinion in Koncel v. State, 2009 WL 4842502 (Iowa App. 2009), I think that the Rule was essential to the court's decision.

In Koncel, Joseph Koncel was convicted following a jury trial of the first-degree murder and first-degree kidnapping of Marty Budde. He thereafter filed an application for postconviction relief, claiming, inter alia, that his trial attorney was ineffective in failing to object to the admission of a transcript of a police interrogation of him.

Specifically, Koncel claimed that the prosecution violated the Best Evidence Rule by introducing a transcript of the interrogation of him rather than the original audiotape of the interrogation and that his trial attorney should have objected to the transcript's admission. The problem for Koncel was that, at his postconviction hearing, he testified that when the transcript was being admitted, "he intended to testify and therefore his attorney believed it would not matter whether the statements were suppressed or not." According to the Court of Appeals of Iowa, 

Koncel's own testimony at the postconviction hearing [thus] show[ed] that his attorney did not perform outside the range of a reasonably competent attorney and that the trial attorney's decision to not move to suppress the statements was a reasonable strategic decision. Since Koncel planned to testify, the attorney believed the substance of the statements would be admitted through Koncel's own testimony, regardless of whether the transcribed interrogation was admitted.  

Of course, for this conclusion to be correct, it had to be true that Koncel could have proved the contents of audiotape without that audiotape being produced at trial. And, as Iowa Rule of Evidence 5.1007 makes clear, he could have.

-CM