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Some Friendly Advice
By B John Burns
June 13, 2014

Justice Zager ruled against the defendant today in State v. Putman, a case involving the application of Iowa R.Evid. 5.404(b).  Mr. Putman was convicted of sexual abuse in the first degree for assaulting a two-year-old child.    At issue was the introduction of some child pornography found in Mr. Putman’s residence.  There was a bunch of it.  The State isolated two videos involving the rape of two-year old children following removal of their diapers, as they were most similar to the circumstances of Mr. Putman’s case.

The videos were not shown to the jury.  They were not described in detail.  The jury was informed only of the portions of their titles that indicated they involved the rape of two-year-old children.  They were mentioned briefly at trial.  The judge gave a limiting instruction.  Even the prosecutor reminded the jury of their limited purpose.

The videos were admissible, Justice Zager wrote, because they comprised other bad acts that were strikingly similar to the charged offense.  Thus they established Mr. Putman’s identity as the assailant.  

Some good comes out of Justice Zager’s opinion.  Perhaps the most important pronouncement in Putman involves the level of proof required to admit 5.404(b) evidence, as there seemed to be a split under Iowa precedent.  One view is that the proponent must offer “clear proof” of the commission of the prior offense.  State v. Sullivan, 679 N.W.2d 19, 25 (2004); State v. Jones, 464 N.W.2d 241, 242 (Iowa 1990).  In other cases, however, the level of proof was one factor to be considered in determining whether the probative value of the evidence is substantially outweighed by its prejudicial effect.  State v. Reynolds, 765 N.W.2d 283, 289-90 (Iowa 2009); State v. Henderson, 696 N.W.2d 5, 11 (Iowa 2005).  Justice Zager used Putman to announce that prior offenses must be established by clear proof.  So we have that.

Justice Hecht and Justice Wiggins wrote dissents.  There’s some good stuff in both of them.  Justice Hecht discussed the massive prejudice inherent in child pornography.  Those of us who have handled child pornography trials know that, for all practical purposes, the trial is over once the jury sees the images.

There is some excellent language in Justice Wiggins’ dissent stressing what I have been arguing for years, Rule 5.404(b) should be viewed as a rule of exclusion, not a rule of inclusion.  The language in Justice Wiggins’ dissent may be very useful in making our 5.404(b) arguments, as I don’t think that viewpoint had been rejected fully in Iowa.

One aspect of Justice Wiggins’ dissent, however, is a little bit troubling.  Justice Wiggins expresses concern about prosecutors delving into what defendants are watching or reading to prove their guilt of criminal offenses.  His point is a good one.  Mere writings, he notes, “do not in and of themselves make the writings admissible There has to be some link between the material sought to be introduced and the crime charged.”  Even if Mr. Putman’s collection shows that he has a fascination with this type of crime, “these videos do not offer any indication that Putman was the child rapist on the night in question or that the crime he allegedly did was in the same manner as the acts committed in the videos.”


If prosecutors are allowed to delve into what the defendant is reading and watching to prove guilt of a substantive offense, “people of the State of Iowa must be careful in what they watch or read.  The State can use a person’s reading of the book Lolita to convict that person of underage sexual abuse.  The State can use a person’s fascination with crime shows to convict that person of murder.”

Damn right.

And it doesn’t stop there.  Justice Wiggins builds up a head of steam, and reaches this climactic point:

“I would borrow a phrase from the Supreme Court of Kentucky and declare, unqualifiedly, that citizens and residents of Iowa are not subject to criminal conviction based upon the contents of their bookcase unless and until there is evidence linking it to the crime charged.”

Uh. . . . actually. . .

Actually, the citizens and residents of Iowa ARE subject to criminal conviction based upon the contents of their bookcase – if the contents of their bookcase include child pornography.  I don’t know a whole hell of a lot.  But I do know that.

My friendly advice is don’t have child pornography in your bookcase.  You will have a happier life all around.
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Criminal Procedure 4A

By B.John Burns 

This reference offers a comprehensive analysis of Iowa criminal procedure. It analyzes criminal procedure, including pre-trial, trial, sentencing, and post-conviction procedure. Provides a comprehensive manual covering all procedural aspects of an Iowa criminal case, from the time you are first engaged to represent a suspected or charged individual, through the final steps of a criminal appeal or state or federal post conviction relief proceeding. Separate divisions review evidentiary issues in criminal trials, constitutional provisions affecting criminal cases, and the representation of inmates in prison litigation.

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