Supreme Court of Iowa Finds Prosecution Properly Impeached 3 of its Own Witnesses in Murder Trial
Similar to its federal counterpart, Iowa Rule of Evidence 5-607 states that
The credibility of a witness may be attacked by any party, including the party calling the witness.
Rule 607 gets rid of the common law voucher rule, pursuant to which an attorney vouched for thee credibility of witnesses she called and therefore could not impeach their credibility. That said, as the recent opinion of the Supreme Court of Iowa in State v. Swift, 2021 WL 833555 (Iowa 2021), makes clear, there is an important limitation on this rule.
In Swift, Derris Swift was charged with attempted murder and related crimes. After he was convicted, Swift appealed, claiming that the State improperly called
three witnesses-all of whom the State knew to be reluctant to testify-that the State impeached on the witness stand with prior inconsistent statements they’d made to the police incriminating him.
In addressing this issue, thee Supreme Court of Iowa noted that
We observed in Turecek that the State’s right to impeach its own witness under rule 5.607 “is to be used as a shield and not as a sword” and thus that parties may not use impeachment evidence “for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.”…Particularly in a criminal case, permitting impeachment with inadmissible hearsay risks the jury relying on the impeachment evidence for the truth of the matters asserted-as substantive evidence-and not as an attack on the witness’s credibility or another permitted use of impeachment evidence….
Parties of course commonly confront situations in which a witness’s testimony isn’t completely helpful or completely damaging. In these situations, parties often elicit the helpful testimony as well as the damaging testimony and then impeach the witness on the damaging testimony. Calling a witness with a mix of expected testimony-some helpful, some damaging (and thus requiring impeachment)-does not create a Turecek violation because the primary purpose for calling the witness is not to place otherwise inadmissible evidence before the fact finder. Parties should not “be put to the choice between the Scylla of forgoing impeachment and the Charybdis of not calling at all a witness from whom it expects to elicit genuinely helpful evidence.”…Rather, all the evidence in these situations (helpful, damaging, and the impeachment of the damaging) is ordinarily relevant to the fact finder’s determination and, so long as not inadmissible under another evidentiary or exclusionary rule, admissible for its purposes….Of course, even when Turecek presents no barrier to calling a witness, rule 5.403 remains a safeguard to protect against particular questions or subjects that must be excluded when impeachment evidence presents sufficient danger of unfair prejudice, confusing the issues, or misleading the jury.
The court then held that Swift had not preserved this issue for appellate review and held that, even if he had,
we can’t find the State called a witness as a subterfuge to inject inadmissible hearsay through impeachment when there’s no evidence that the State was aware it would need to impeach its witness at all. To be sure, the record establishes the State had difficulty communicating with Ashanti in advance of trial. (The record also establishes that Swift personally encouraged her not to cooperate in the prosecution.) But reluctance to testify isn’t enough, and that’s all Swift offers us. The record shows the prosecutor met with Ashanti and Ameshia during a lunch break right before they testified and reviewed evidence of their prior statements with them. In light of such a meeting, there’s no reason for us to conclude the State should then expect either witness to deny making their prior statements or recanting them under penalty of perjury on the stand. When making the decision to call a witness, the State is not required to speculate that a reluctant witness will provide false testimony or testimony that will differ from prior statements….“In fact, quite the opposite is true; ‘an attorney is entitled to assume that a witness will testify truthfully.’”…There’s nothing in the record indicating any of the three witnesses had previously alerted the State of an intention to divert from any prior statements, let alone recant them.