Marsy’s Law – Protecting Victims From Intimidation
When criminal charges are filed against a rapist, murderer, or stalker, one of the first actions typically carried out by defense attorneys is to request the evidence against their client and to set up depositions. As the law currently stands, defense counsel possess the absolute right to depose victims. On top of this, most courts throughout our state require that the victim be subjected to questioning by defense attorneys in the presence of the defendant. Not only do rape victims have to sit through often humiliating questions by defense attorneys concerning intimate personal details, they have to suffer this while sitting a mere two feet from the rapist. Marsy’s Law can change this.
Iowa Rule of Criminal Procedure 2.27 establishes when a defendant must be present throughout his or her prosecution. The Rule states the defendant shall be present at initial appearance, arraignment and plea (unless a written arraignment form is filed), pretrial proceedings, and shall be personally present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence.
The Iowa Supreme Court, in State v. Peterson, 219 N.W.2d 665 (Iowa 1974), held that a defendant may take discovery depositions of a State’s witness. After that, new rules of criminal procedure were created to delineate the actual procedures for how this would be accomplished. The Iowa Supreme Court, in State v. Folkerts, 703 N.W.2d 761 (Iowa 2005), State v. Davis, 259 N.W.2s 812 (Iowa 1977), and State v. Holderness, 301 N.W.2d 733 (Iowa 1981), sometimes makes it seem that defendants have the right to depositions and to be present for them by relying on rules of procedure that state a defendant “shall be personally present at every stage of the trial.”
The Iowa Supreme Court has previously confused the concept of discovery depositions and depositions taken for introduction at trial (depositions to perpetuate testimony). These two types of deposition are, in fact, different since one, a deposition to perpetuate testimony, will be the only time a defendant has the right to confront a witness while the other, a discovery deposition, is merely to interview, at which point the defendant attending trial will carry out their right to confront the witness.
Thankfully, despite some of the Iowa Supreme Court’s confusion, the Court did clearly state, in Otteson v. Iowa Dist. Ct., 443 N.W.2d 726 (Iowa 1989), that “if a deposition is taken for discovery only-not for use at trial- the deposition is not a ‘stage of trial’ for which the defendant must be present.”
Though many attorneys and even judges in Iowa seem to believe that a defendant has the absolute constitutional right to be present during depositions, neither the State nor national Constitution provide such a right. In Van Hoff v. State, 447 N.W.2d 665 (Iowa Ct. App. 1989), the Iowa Court of Appeals specifically noted that
“[d]epositions, which were taken as discovery depositions and not to perpetuate testimony of one who would be absent from trial and none of which were introduced into evidence at trial, were not ‘stages of trial’ at which defendant had to be present and failure of counsel to have defendant present at depositions did not constitute ineffective assistance.”
This principal of law was reaffirmed by our appellate courts as recently as March 20, 2019 in Beloved v. State, 928 N.W.2d 170 (Iowa Ct. App. 2019), where the defendant’s convictions for two sexual abuse charges were sustained despite the defendant complaining that he was unable to be present during the defense attorney’s deposition of a State expert witness.
With Marsy’s Law, we would insert a constitutional protection preventing what has become standard in most parts of Iowa: courts requiring victims to sit in often small rooms in near proximity to their tormentor during depositions. There is no constitutional requirement imposing the need for this. The confrontation clause does not require this. Our own Iowa Supreme Court and Court of Appeals recognize that this is not required. Despite no defendant constitutional right to obligate the victim to submit to a deposition with their tormentor present, district and associate district courts typically require it anyway. Judges currently worry more about the defendant’s rights in these matters to the point that they even grant defendants more rights than they actually have.
Inserting a victim’s rights clause into the Iowa Constitution would obligate our Iowa Supreme Court to amend its rules of criminal procedure to not require that victims be subjected to the abuse they currently are subjected to. Marsy’s Law will provide prosecutors with a constitutional provision to argue what should already be the case: victims do not have to submit to a deposition with the defendant present. Below is Florida’s rules of criminal procedure relating to depositions. They are included to show that other states, possessing the same language in their constitution regarding confrontation, impose rules far more respectful of victims.
Florida Rule of Criminal Procedure 3.220(h)(7) – Defendant’s Physical Presence. A defendant shall not be physically present at a deposition except on stipulation of the parties or as provided by this rule. The court may order the physical presence of the defendant on a showing of good cause. The court may consider (A) the need for the physical presence of the defendant to obtain effective discovery, (B) the intimidating effect of the defendant’s presence on the witness, if any, (C) any cost or inconvenience which may result, and (D) any alternative electronic or audio/visual means available.
Florida Rule of Criminal Procedure 3.220(h)(4) – Depositions of Sensitive Witnesses. Depositions of children under the age of 18 shall be videotaped unless otherwise ordered by the court. The court may order the videotaping of a deposition or the taking of a deposition of a witness with fragile emotional strength, or an intellectual disability as defined in section 393.063, Florida Statutes, to be in the presence of the trial judge or a special magistrate.
Florida Rule of Criminal Procedure 3.220(h)(1)(D) – no deposition shall be taken in a case in which the defendant is charged only with a misdemeanor or a criminal traffic offense when all other discovery provided by this rule has been complied with unless good cause can be shown to the trial court. In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness’ testimony (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition. However, this prohibition against the taking of depositions shall not be applicable if following the furnishing of discovery by the defendant the state then takes the statement of a listed defense witness pursuant to section 27.04, Florida Statutes.
Reuben Neff
Wapello County Attorney
Marsy's Law for Iowa supporter