Iowacase law summary by Attorney Richard Clem: Criminal law, hearsay.

State of Iowa v. Timothy Michael Fontenot. IA criminal law, hearsay

The defendant in this Linn County, Iowa, case was convicted of indecent conduct with a child. He appealed, and the case was ultimately heard by the Iowa Supreme Court, which affirmed.

The victim was 11 years old when defendant, whose brother was in a long-term relationship with the child's mother, touched her inappropriately a number of times. When the mother and the defendant's brother learned of the incident, they went to the Marion Police Department, and at the recommendation of police, to a hopsital. There followed a forensic interview of about 45 minutes.

After the defendant was charged, his attorney took a deposition of the victim, at which the defendant was present in the room. Trial was held in 2018, about two years after the incident, and the victim testified. On cross-examination, the defense attorney "went on to emphasize apparent inconsistencies" between the trial testimony and the deposition testimony, and "selectively read back sections where she said she wasn't sure of certain things."

The state argued that this questioning opened the door for admission of the forensic interview, to rebut the implication that the testimony was recently fabricated. The trial court agreed, and allowed the video tape to be played one time. The video was not allowed in the jury room, and there was an instruction that it could be used only as a basis for disregarding all of part of the testimony.

The supreme court noted that prior consistent statements are admissible only if made before the alleged improper motive to fabricate arose. The court held that the test was met in this case, and that the video was therefore admissible.