October 11, 2019—the Iowa Supreme Court decided an Iowa criminal case today in State v. Kenneth Leroy Heard. It reversed the Court of Appeals’ order for a third murder trial and affirmed the conviction. Justice Waterman, writing for the court, held that the trial court properly refused defendant’s request to call an alternative suspect to the stand merely to have the jury hear the witness “Take the Fifth.” The Defendant, the Court wrote, had no right to do that because it was intended to imply the alternative suspect was guilty simply by having them invoke the Constitutional right to remain silent in front of the jury.
The Court made no distinction between the constitutional rights of a defendant facing a life sentence and a witness who was not on trial.
In Heard, the State charged the defendant with murder. The defendant’s theory of defense was that someone else killed the decedent by point-blank gunfire. The defendant wanted to call that alternative suspect to the stand if only to have them assert the Fifth Amendment right to remain silent right in front of the jury and spark reasonable doubt among jurors by implying that he was pleading the fifth because he was the guilty one. The trial court refused to allow this to happen, stating that a witness has an absolute right to plead the Fifth Amendment and that jurors may not infer guilt from the invocation.
The Heard case is complicated because it had already resulted in two jury trials before the pending litigation. The first resulted in conviction. The defendant successfully argued for a new trial to more successfully cross-examine the alternative suspect and to present blood spatter expert testimony. The alternative suspect in the second jury trial pleaded the Fifth Amendment at deposition, making it clear he would also do so at trial.
The defendant wanted him to do that in front of the jury so the jury could infer the alternative suspect was actually the shooter. The trial court refused. Defendant was again convicted during the second trial. He appealed.
The Court of Appeals granted a third trial stating that its primary reason for doing so was that the alternative suspect had already testified in the first jury trial, thereby waiving the fifth amendment privilege, and that the judge during that first trial had allowed counsel to ask individual questions before determining whether the Fifth Amendment applied to each one.
The Supreme Court disagreed, reversing the Court of Appeals, and affirming the district court conviction. In doing so, it held that a witness who invokes the Fifth Amendment may do so in one proceeding but not another because “the privilege attaches to the witness in each particular case in which he may be called on to testify.”
The Court also held that the witness could invoke the Fifth Amendment in blanket fashion and that a curative, or, after-the-fact instruction to the jury advising them not to assume the witness was guilty would be useless against the “Perry Mason moment” character of the invocation.
The Court put strong emphasis on the majority of jurisdictions that do not allow a witness to invoke the Fifth Amendment in front of the jury.
“Many States, like Iowa, similarly hold that witnesses properly invoking a blanket privilege against self-incrimination should not be compelled to do so in the presence of the jury. Because the witness who takes the Fifth does not testify, the defendant has no valid Sixth Amendment confrontation clause claim.”
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