State of Iowa v. Jonas Dorian Neiderbach

IN THE SUPREME COURT OF IOWA
No. 11–1082

Filed August 23, 2013

STATE OF IOWA,

Appellee,

vs.

JONAS DORIAN NEIDERBACH,

Appellant.

Appeal from the Iowa District Court for Polk County, Douglas F.

Staskal, Arthur E. Gamble, and Artis I. Reis, Judges.

Defendant appeals from his convictions for child endangerment.

AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED

WITH INSTRUCTIONS.

Gary D. Dickey Jr. and Angela L. Campbell of Dickey & Campbell

Law Firm P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, John P. Sarcone, County Attorney, and Steven M.

Foritano, Nan M. Horvat, and Jeffrey K. Noble, Assistant County

Attorneys, for appellee.
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WATERMAN, Justice.

A Polk County jury found Jonas Neiderbach guilty of six counts of

child endangerment, and the district court imposed a fifty-year prison

sentence. The victim is his son, E.N., who was less than seven weeks old

when he suffered a broken arm, fifteen rib fractures, and a permanent

brain injury over a three-week period. The victim’s mother, Jherica

Richardson, pled guilty to child endangerment and is serving a twenty-

year prison sentence. Jonas appeals his convictions on numerous

grounds. For the reasons that follow, we vacate his convictions as to two
counts for the baby’s broken ribs because we find the evidence

insufficient. We also find the district court erred in denying Jonas’s

motion for an in camera review of Jherica’s mental health records under

Iowa Code section 622.10(4) (Supp. 2011), a statute we uphold today as

constitutional in State v. Thompson, 836 N.W.2d 470, 490 (Iowa 2013).

We affirm the district court on all other issues. We remand the case for

the district court to perform an in camera review and for further

proceedings consistent with this opinion.

I. Background Facts and Proceedings.

“We recite the facts in the light most favorable to the verdict.”

State v. Garcia, 616 N.W.2d 594, 595 (Iowa 2000). E.N. was born on

May 27, 2009. His parents, Jonas and Jherica, were age twenty at that

time and living with Jonas’s parents, Jon and Mary Neiderbach.

Although E.N. was full term and appeared healthy overall, he spent the

first four days following his birth in the neonatal intensive care unit

(NICU) because his physicians feared he may have aspirated fecal matter

in utero. In addition to this potentially life-threatening concern, E.N. was
born with the umbilical cord wrapped around his neck, exhibited tremor

activity, and did not feed well. E.N. also tested positive for marijuana at
 3

birth, which triggered a notification to the Iowa Department of Human

Services (DHS).

The new parents brought baby E.N. home to the Neiderbach

residence. In light of the positive marijuana test, DHS provided the

family with a visiting nurse who came to the house on a biweekly basis to

check on the baby and to answer questions. E.N. was seen by either the

visiting nurse or his pediatrician four times during the first two weeks

after he left the hospital and appeared healthy at each visit.

On the evening of June 13, E.N. vomited or coughed up a small
amount of blood. The next morning, Jonas and Jherica took him to a

clinic. The baby was diagnosed with acid reflux and was prescribed

Zantac. The visiting nurse came to check in on E.N. three days later,

and he appeared normal with the coughing and vomiting of blood

resolved.

Five days later, on June 18, E.N. was taken to the hospital again—

this time for a broken arm. That morning, Jonas, Jherica, and E.N.

returned from Jonas’s paper route with the baby asleep. E.N. awakened

crying. Jherica handed him to Jonas and left the room to prepare a

bottle. She heard the baby’s cries escalate to a scream and returned to

find E.N. lying on the bed with his right arm above his head and his left

arm limp beside him. Jonas stood over the baby. Jonas told Jherica

that E.N.’s arm became pinned behind his back as Jonas laid him on the

bed and that he had heard a pop. Jherica checked whether E.N. could

grasp her finger with his hand and found that he could not.

Jonas and Jherica took E.N. to the emergency room where the

attending physician determined that the baby had a spiral fracture of his
humerus, the upper arm bone. E.N. was hospitalized overnight to be
 4

examined for other signs of abuse. The hospital reported the injury to

DHS.

DHS notified Detective Tim Tyler of the Des Moines Police

Department who came to the hospital with two DHS workers to interview

the attending physician, Jonas, and Jherica. Jonas repeated the story

he had told Jherica and the doctor. Jonas and Jherica were separately

instructed that going forward there would be a safety plan in place under

which Jonas would not be allowed alone with E.N.

After his discharge from the hospital on June 19, E.N. was seen by
his pediatrician, Dr. Eric Andersen. Aside from his broken arm, E.N.

appeared to be in good health. He had gained two pounds since his last

visit and remained calm during the examination. Dr. Lynn Lindaman,

E.N.’s pediatric orthopedic surgeon, saw E.N. again on June 26 for a

follow-up appointment for his broken arm. Dr. Lindaman found E.N.’s

arm to be healing in good alignment.

E.N. was next seen by a physician on July 8, when Jonas and

Jherica rushed him to the hospital after he stopped breathing. That

afternoon, Jonas, Jherica, and E.N. had returned home from errands,

including visiting Jonas’s father and Jherica’s mother, Connie

Richardson, at work. Jon, Connie, and their coworkers noted E.N.

appeared healthy that day. E.N. was sleeping when they returned home;

however, he soon awakened crying. Jherica tried to feed the baby, but

he was not taking his bottle. Jherica handed E.N. to Jonas while she

went outside to smoke a cigarette.

Jherica was outside when she heard E.N.’s crying stop abruptly,

within three to five minutes after she had handed the infant to Jonas. As
she returned inside, Jonas was walking down the stairs holding E.N.

Jonas was crying; E.N. was still. Jonas told Jherica that E.N. had
 5

stopped breathing. Jherica noticed a yellowish substance oozing from

E.N.’s mouth. Jherica cleared his mouth as best she could, but the baby

did not resume breathing. Jherica called her mother to ask what to do

and was told to take E.N. to the hospital. Jherica returned to the living

room and saw Jonas shaking E.N. while saying, “Why aren’t you f______

breathing?” Jherica yelled at Jonas to stop and told him that they

should take E.N. to the hospital. Jonas initially refused to go to the

hospital, mentioning it was the “third time,” but Jherica convinced him

to go together.
Jonas and Jherica strapped E.N. into his car seat and drove to the

emergency room at Blank Children’s Hospital. Upon arrival they told

Dr. Carlin that E.N. had screamed, started gasping, and then stopped

breathing altogether. E.N.’s physicians diagnosed the baby with

subdural hematomas on both sides of his brain, fifteen rib fractures

(some old and some new), and the broken arm. They also found a

hypoxic ischemic injury, which is damage to the brain due to lack of

oxygen. Dr. Tracy Ekhardt, E.N.’s pediatric critical care specialist,

determined E.N.’s “brain injury was due to a force to his head” and that

“[t]he explanation that [she] got from the family was not consistent with

the amount of force that would be needed to cause that damage to his

head.”

E.N. was hospitalized seven weeks and then was transferred to a

nursing home for children with special needs, where he spent the next

five months. Jherica’s sister, Shannon Nelson, and Shannon’s husband

adopted E.N. in November 2009. E.N. remains unable to move his legs

and can only barely move his arms. He can move his head side to side,
but cannot hold his head up on his own. E.N. is also unable to

communicate verbally, has a feeding tube in his stomach, and a
 6

tracheostomy tube that requires regular suctioning. Doctors expect no

significant improvement in E.N.’s condition.

The State’s initial trial information, filed August 26, charged Jonas

and Jherica with eight counts of child endangerment, in violation of Iowa

Code section 726.6 (2009), and one count of multiple acts of child

endangerment, in violation of section 726.6A. On January 21, 2010,

Jherica reached a plea agreement, under which she pled guilty to child

endangerment causing serious injury, child endangerment causing

bodily injury, and neglect of a dependent person. The plea colloquy
shows she admitted to smoking marijuana with the baby in utero, to

leaving E.N. alone with Jonas in violation of the safety plan, and to

failing to get medical care for E.N. after being told he had broken ribs.

Jherica agreed to testify for the State at Jonas’s trial. In exchange, the

State agreed to recommend that Jherica receive a total sentence of

twenty years in prison.

The State amended its trial information on March 11, to drop

Jherica as a codefendant and eliminate one count of child endangerment.

The jury trial began May 4, 2011. During trial, the State dismissed two

more counts. The balance of the case was submitted to the jury on

May 18. On May 20, after two days of deliberation, the jury found Jonas

guilty on all six remaining counts. The district court sentenced Jonas to

fifty years in prison.

Jonas appealed, and we retained his appeal. Additional facts and

procedural history will be provided in the discussion of specific issues

below.

II. Issues Raised on Appeal.
Jonas raises the following issues on appeal: (1) whether the district

court erred by failing to dismiss counts two through six as lesser
 7

included offenses of count one pursuant to Iowa Rule of Criminal

Procedure 2.6(1) or by failing to grant his motion to sever those counts;

(2) whether the district court violated Jonas’s due process rights by

refusing to issue a subpoena for Jherica’s mental health records sought

as exculpatory evidence under State v. Cashen, 789 N.W.2d 400 (Iowa

2010), and Iowa Code section 622.10(4) (Supp. 2011); (3) whether

Jonas’s July 8 statement to Detective Kelly acknowledging he shook the

baby should have been suppressed because she interfered with his

attorney–father’s attempt to represent him; (4) whether the district court
abused its discretion by admitting into evidence photographs and video

of E.N. taken eighteen months after his injuries; (5) whether the district

court erred by allowing expert testimony describing medical studies on

shaken-baby injuries with reported confessions by caregivers; (6)

whether the district court abused its discretion by limiting the cross-

examination of Jherica as to her prior inconsistent statements on mental

health treatment; (7) whether the prosecutor misstated expert testimony

requiring a new trial; (8) whether the district court erred by submitting

the aiding and abetting instruction; (9) whether the weight of the

evidence was contrary to the jury’s verdicts on counts three and six; and

(10) whether the evidence was sufficient to support the convictions on

counts four and five.

III. Scope of Review.

Our review of motions to dismiss is for correction of errors at law.

In re Det. of Stenzel, 827 N.W.2d 690, 697 (Iowa 2013). We review a trial

court’s denial of a defendant’s motion to sever for abuse of discretion.

State v. Elston, 735 N.W.2d 196, 198 (Iowa 2007).
We review constitutional issues de novo. See State v. Pearson, 804

N.W.2d 260, 265 (Iowa 2011) (“We review de novo a district court’s
 8

refusal to suppress statements allegedly made in violation of

constitutional safeguards.”); State v. Wells, 738 N.W.2d 214, 218–19

(Iowa 2007) (reviewing de novo defendant’s claim that admission of

hearsay testimony violated his Sixth Amendment right to confront a

witness against him). Discovery rulings challenged on constitutional

grounds are reviewed de novo. Cashen, 789 N.W.2d at 405 (“Because the

issues in this case rest on constitutional claims involving Cashen’s due

process right to present a defense, our review is de novo.”).

Nonconstitutional challenges to discovery rulings are reviewed for abuse
of discretion. Id. (“Ordinarily, we review discovery orders for an abuse of

discretion.”).

We review the district court’s evidentiary rulings for abuse of

discretion. State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013).

“Although we generally review the district court’s admission of hearsay

evidence for errors at law, ‘when the basis for admission of hearsay

evidence is the expert opinion rule . . . we will employ an abuse of

discretion standard.’ ” Stenzel, 827 N.W.2d at 697 (quoting Kurth v. Iowa

Dep’t of Transp., 628 N.W.2d 1, 5 (Iowa 2001)).

Our review of allegations of prosecutorial misconduct is for abuse

of discretion. State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011). We

review whether there was sufficient evidence to warrant submission of a

jury instruction for correction of errors at law. See State v. Smith, 739

N.W.2d 289, 293 (Iowa 2007). We review a district court’s ruling as to

whether a verdict was contrary to the weight of the evidence for abuse of

discretion. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). We review

challenges to the sufficiency of the evidence for correction of errors at
law. State v. Hearn, 797 N.W.2d 577, 579 (Iowa 2011).
 9
IV. Dismissal or Severance of Counts Two Through Six
Pursuant to Iowa Rule of Criminal Procedure 2.6(1).

A. Motion to Dismiss. Jonas appeals the district court’s denial

of his motion to dismiss counts two through six. The State’s amended

trial information filed April 29, 2011, charged Jonas with these six

counts of child endangerment:

Count 1: Multiple acts of child endangerment in
violation of Iowa Code section 726.6A.
Count 2: Child endangerment resulting in a brain
injury on July 8, 2009, in violation of Iowa Code section
726.6(1).
Count 3: Child endangerment resulting in a broken
arm on June 18, 2009, in violation of Iowa Code section
726.6(1).
Count 4: Child endangerment causing rib fractures
from June 17–30, 2009, in violation of Iowa Code section
726.6(1).
Count 5: Child endangerment causing rib fractures
from July 1–8, 2009, in violation of Iowa Code section
726.6(1).
Count 6: Child endangerment by willfully depriving a
child of health care for fractured ribs between July 2–8,
2009, in violation of Iowa Code section 726.6(1).

Jonas contends the State’s trial information violates Iowa Rule of

Criminal Procedure 2.6(1), which states:

Two or more indictable public offenses which arise from the
same transaction or occurrence or from two or more
transactions or occurrences constituting parts of a common
scheme or plan, when alleged and prosecuted
contemporaneously, shall be alleged and prosecuted as
separate counts in a single complaint, information or
indictment, unless, for good cause shown, the trial court in
its discretion determines otherwise. Where a public offense
carries with it certain lesser included offenses, the latter
should not be charged, and it is sufficient to charge that the
accused committed the major offense.

Jonas focuses on the last sentence of the rule, which prohibits charging
lesser included offenses along with the major offense. Jonas argues the
 10

State’s trial information violates this rule because it would be “impossible

to commit the greater offense of Child Endangerment under [Iowa Code

section] 726.6A . . . without also committing the offenses set forth in

Counts 2 through 6.” See State v. McNitt, 451 N.W.2d 824, 825 (Iowa

1990) (“A lesser offense is necessarily included in the greater offense if

the greater offense cannot be committed without also committing the

lesser.”). The State concedes the child endangerment offenses charged in

counts two through six are lesser included offenses of the multiple acts

of child endangerment charged in count one. See State v. Hickman, 576
N.W.2d 364, 367 n.1 (Iowa 1998).

The district court, however, reached a different conclusion based

on its reading of two decisions by our court of appeals: State v. Flanders,

546 N.W.2d 221 (Iowa Ct. App. 1996), and State v. Arends, No. 03–0420,

2004 WL 1159730 (Iowa Ct. App. May 26, 2004) (unpublished opinion).

In Flanders, the court of appeals considered whether second-degree

sexual abuse was a lesser included offense of first-degree kidnapping.

546 N.W.2d at 224. The defendant had been convicted of one count of

second-degree sexual abuse and one count of first-degree kidnapping.

Id. The court noted that, although sexual abuse can be a lesser included

offense of kidnapping, it may not be in every case. Id. at 224–25. This is

because “[t]he lesser-included offense analysis addresses situations

where multiple charges apply to a single occurrence. Where the alleged

acts occur separately and constitute distinct offenses, there can be no

complaint one is a lesser-included offense of the other.” Id. at 224.

Thus, if the State alleged the “defendant had committed at least two

separate and distinct acts of sexual abuse, and only one of those acts
formed the basis for the kidnapping charge,” then only one of the sexual
 11

abuse charges would be a lesser included offense of the kidnapping

charge. Id. at 225.

The district court seized on this language and Arends, which the

district court interpreted to hold that “where defendant was charged with

Multiple Acts of Child Endangerment and supporting evidence is

presented that a child was injured on at least three separate occasions,

the lesser included analysis does not apply.” The district court, however,

misapprehended the holding of Arends. The Arends court did not

consider whether individual child endangerment counts are lesser
included offenses of a charge of multiple acts of child endangerment;

rather, that court considered whether “the crime of child endangerment

is a lesser included offense of involuntary manslaughter.” 2004 WL

1159730, at *5.

We agree that “[t]he lesser-included offense analysis addresses

situations where multiple charges apply to a single occurrence. Where

the alleged acts occur separately and constitute distinct offenses, there

can be no complaint one is a lesser-included offense of the other.”

Flanders, 546 N.W.2d at 224. In the present case, however, the major

offense and the lesser included offenses involve overlapping acts.

Section 726.6A provides that a person is guilty of a class “B” felony

if that person

engages in a course of conduct including three or more acts of
child endangerment as defined in section 726.6 within a
period of twelve months involving the same child . . . , where
one or more of the acts results in a serious injury to the
child . . . or results in a skeletal injury to a child under the
age of four years . . . .

Iowa Code § 726.6A (2009) (emphasis added). Thus, one element of this
offense requires the State to prove the defendant committed three or

more acts of child endangerment under section 726.6. Although the
 12

three or more acts supporting a section 726.6A charge “must be

separated by time and place so that each incident is separate and

distinct,” State v. Yeo, 659 N.W.2d 544, 550 (Iowa 2003), the individual

child endangerment offenses are not also separate and distinct from the

multiple-acts offense.

For example, imagine a scenario in which the state charges a

defendant with one count of multiple acts of child endangerment and

three counts of child endangerment causing a broken arm, broken leg,

and a brain injury.1 The state proves the acts causing the broken arm,
broken leg, and brain injury were “separated by time and place so that

each incident is separate and distinct.” Although the three lesser

offenses are separate and distinct from each other, that does not mean

that they are separate and distinct from the multiple-acts offense they

support. They, in fact, are not. Under this hypothetical, the state could

not prove the defendant committed multiple acts of child endangerment

without also proving the defendant committed each of the three counts of

child endangerment. See McNitt, 451 N.W.2d at 825 (“A lesser offense is

necessarily included in the greater offense if the greater offense cannot

be committed without also committing the lesser.”). The same is true in

this case.2 Accordingly, the individual counts of child endangerment

1For the sake of simplicity, we assume the state also meets the other
requirements of section 726.6A.
2Although it is true that the State was not required to prove Jonas committed all
five of the individual counts of child endangerment to prove he committed multiple acts
of child endangerment, we do not believe the analysis should differ simply because this
case involved more than three charges of child endangerment under section 726.6. See
Iowa Code § 726.6A (noting it applies when “[a] person . . . engages in a course of
conduct including three or more acts of child endangerment as defined in section 726.6
within a period of twelve months” (emphasis added)).
 13

alleged in counts two through six are lesser included offenses of the first

count’s charge of multiple acts of child endangerment.

Thus, applying the last sentence of rule 2.6(1), the five lesser

included offenses alleged in counts two through six should not have been

charged because “it [was] sufficient to charge that the accused committed

the major offense.” See Iowa R. Crim. P. 2.6(3). In any event, the district

court would be required “to instruct the jury, not only as to the public

offense charged but as to all lesser offenses of which the accused might

be found guilty under the indictment and upon the evidence adduced.”
Id. r. 2.6(3).

The State contends to require it to charge a defendant with only

the multiple acts of child endangerment would be “cumbersome,

confusing, and of no practical value” because

[the court] would have had to instruct the jurors to consider
Neiderbach’s guilt under Count 1—which would require
instructions on all the underlying offenses, and would also
require jury findings concerning all those offenses. Further,
the court would have had to instruct that, if the jurors
acquitted Neiderbach under Count 1, they should determine
Neiderbach’s guilt of the underlying offenses—which would
require the jurors to reconsider issues they already decided.

We fail to see how these practical considerations differ from any other

circumstance when a defendant is charged with a major offense and is
instructed on lesser included offenses. Taking this case as an example,

on count two Jonas was charged with child endangerment causing

serious injury in violation of Iowa Code section 726.6(5). The jury was

also instructed under count two as to two lesser included offenses—child

endangerment causing bodily injury in violation of Iowa Code section

726.6(6) and child endangerment in violation of Iowa Code section
726.6(7). These lesser included offenses would have required the jury to

reconsider issues it had already decided in determining whether Jonas
 14

was guilty of the major offense—for example, whether he caused E.N.’s

injury. This interpretation gives effect to all of the language in rule

2.6(1). Accordingly, we hold the district court erred in not dismissing

counts two through six of the trial information as lesser included

offenses. Only the major offense under section 726.6A should be

charged.

We now turn to consider whether this error prejudiced the

defendant. “When a nonconstitutional error is claimed, as in this case,

the test is whether the rights of the objecting party have been ‘injuriously
affected by the error’ or whether the party has ‘suffered a miscarriage of

justice.’ ” State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008) (quoting

State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)). This case involves

multiplicity, which is “the charging of a single offense in more than one

count.” United States v. Langford, 946 F.2d 798, 802 (11th Cir. 1991).

Two concerns arise from multiplicitous counts: “First, the defendant may

receive multiple sentences for the same offense. Second, a multiplicitous

indictment may improperly prejudice a jury by suggesting that a

defendant has committed several crimes—not one.” Id. In Langford, the

Eleventh Circuit held a defendant had been charged with multiplicitous

counts. Id. at 804. The defendant argued the three counts should be

reversed because they had “improperly prejudiced the jury by suggesting

that the defendant committed not one but several crimes.” Id. The

court, however, emphasized that “[t]he principal danger . . . is . . . that

the defendant may receive multiple sentences for a single offense.” Id.

Significantly, the Eleventh Circuit held the defendant had not been

prejudiced by the multiplicitous indictment, even though he had actually
received sentences on all three counts because those sentences were to

run concurrently. Id. at 804–05.
 15

We agree that the primary risk of prejudice arising from a

multiplicitous indictment is that a defendant could receive multiple

sentences for a single offense. In this case, however, no such prejudice

resulted because the district court merged his convictions on counts two

through six into count one and sentenced him on that one count. Jonas

was found guilty of separate acts that were chargeable as separate

crimes under section 726.6, but when combined, also violated section

726.6A. Under these circumstances, there was no unfair appearance

that he had committed “not one but several crimes.” Accordingly, we
hold Jonas was not prejudiced.

B. Motion to Sever. Jonas also appeals the district court’s denial

of his motion to sever counts two through six. All the counts involved

the same victim and acts occurring within several weeks. A defendant in

some circumstances may be entitled to a severance to avoid prejudice

from the jury hearing evidence inadmissible on one count coming in to

prove another count. That is not the situation here. Count one, which

includes counts two through six as lesser included offenses, could not be

severed. The State was entitled to offer evidence on each act to prove the

multiple-acts crime in count one. Accordingly, we hold the district court

did not abuse its discretion in denying Jonas’s motion to sever.

V. The Request for Jherica’s Mental Health Records.

A. Applicability of Section 622.10(4). On July 20, 2010, Jonas

filed a motion to compel production of Jherica’s mental health records

under the protocol set forth in Cashen. The district court denied Jonas’s

motion on the grounds that Cashen only applies when the defendant

requests the mental health records of the victim, is claiming self-defense,
and is inapplicable to efforts to obtain a codefendant’s mental health

records. During the pretrial proceedings in this case, the legislature
 16

passed Senate File 291, which took effect upon its enactment on

March 30, 2011. See 2011 Iowa Acts ch. 8. Senate File 291 amended

section 622.10 by adding the following subsection:

4. a. Except as otherwise provided in this subsection,
the confidentiality privilege under this section shall be
absolute with regard to a criminal action and this section
shall not be construed to authorize or require the disclosure
of any privileged records to a defendant in a criminal action
unless either of the following occur:
(1) The privilege holder voluntarily waives the
confidentiality privilege.
(2)(a) The defendant seeking access to privileged
records under this section files a motion demonstrating in
good faith a reasonable probability that the information
sought is likely to contain exculpatory information that is
not available from any other source and for which there is a
compelling need for the defendant to present a defense in the
case. Such a motion shall be filed not later than forty days
after arraignment under seal of the court. Failure of the
defendant to timely file such a motion constitutes a waiver of
the right to seek access to privileged records under this
section, but the court, for good cause shown, may grant
relief from such waiver.
(b) Upon a showing of a reasonable probability that
the privileged records sought may likely contain exculpatory
information that is not available from any other source, the
court shall conduct an in camera review of such records to
determine whether exculpatory information is contained in
such records.
(c) If exculpatory information is contained in such
records, the court shall balance the need to disclose such
information against the privacy interest of the privilege
holder.
(d) Upon the court’s determination, in writing, that
the privileged information sought is exculpatory and that
there is a compelling need for such information that
outweighs the privacy interests of the privilege holder, the
court shall issue an order allowing the disclosure of only
those portions of the records that contain the exculpatory
information. The court’s order shall also prohibit any
further dissemination of the information to any person, other
than the defendant, the defendant’s attorney, and the
prosecutor, unless otherwise authorized by the court.
 17
b. Privileged information obtained by any means other
than as provided in paragraph “a” shall not be admissible in
any criminal action.

Iowa Code § 622.10(4) (Supp. 2011).

Jonas renewed his motion seeking Jherica’s mental health records

pursuant to the procedure set forth in the statute. The renewed motion

included the same offer of proof contained in Jonas’s original motion for

production under the Cashen protocol; however, Jonas later

supplemented his offer of proof on April 25. The district court again

denied Jonas’s motion.
On appeal, Jonas argues section 622.10(4) is unconstitutional

because Cashen set the constitutional floor for requests of mental health

records. In Thompson, 836 N.W.2d at 482, decided today, we reject a

facial challenge to the constitutionality of section 622.10(4) and hold the

statute supersedes the Cashen protocol. We note that, if Jonas’s right to

exculpatory evidence trumped the statutory procedure protecting

privileged mental health records, as he claims, the same logic would

allow Jonas access to Jherica’s privileged communications with her

lawyer to see if she admitted guilt in a way that could help establish his

innocence. Yet, courts would not allow a codefendant to pierce the

attorney–client privilege of another defendant to look for exculpatory

evidence. Cf. Wemark v. State, 602 N.W.2d 810, 815–16 (Iowa 1999)

(discussing attorney–client privilege in the context of criminal cases,

including the general prohibition on the disclosure of client’s confidential

communications). Clearly, the legislature is entitled to protect

communications between attorneys and clients, just as it may impose

procedures governing the disclosure of other records privileged under
section 622.10. These privileges serve important purposes that foster

and protect necessarily confidential communications. See id. at 815
 18

(noting justification of attorney–client privilege is to encourage

“unrestrained communication by clients”); see also McMaster v. Iowa Bd.

of Psychology Exam’rs, 509 N.W.2d 754, 758–59 (Iowa 1993) (discussing

same purpose for psychotherapist–patient privilege). Accordingly,

although Thompson involved the victim’s mental health records and

Jherica is a codefendant, we reject Jonas’s constitutional challenge for

the same reasons expressed in that opinion. See Thompson, 836 N.W.2d

at 481.

Furthermore, because this amendment to the statutory privilege
found in section 622.10 is procedural, it applies retroactively. See State

v. Godfrey, 775 N.W.2d 723, 724 (Iowa 2009) (per curiam); State ex rel.

Leas, 303 N.W.2d 414, 419–20 (Iowa 1981) (applying amendment to

statutory physician–patient privilege retroactively as procedural and

rejecting argument that amendment changed defendant’s substantive

rights in manner precluding retrospective application). In Godfrey, the

district court ordered the state to disclose the home addresses of its

witnesses in a criminal proceeding. 775 N.W.2d at 724. We granted the

state’s application for discretionary review of the pretrial order and

transferred the case to the court of appeals, which affirmed the order. Id.

We then granted the state’s application for further review, but before

deciding the appeal, we adopted Iowa Rule of Criminal Procedure

2.11(12), which governs disclosure of trial witnesses. Id. We noted:

The new provisions do not relate to the substantive elements
of the crimes charged, but pertain only to the procedure for
adjudicating the criminal charges leveled against a
defendant. Consequently, the amendment is applied
retrospectively and resolves the dispute raised on appeal.

Id. Similarly, the 2011 amendment to section 622.10 did not change the
substantive elements of the criminal charges against Jonas, but rather
 19

altered the procedure for seeking records privileged under section

622.10. Although the amendment was enacted after the first ruling

denying Jonas access to Jherica’s records, we hold the statute applies

retroactively and governs our review of that ruling as well as the

subsequent ruling. See id.

Thus, we now turn to consider whether the district court correctly

applied the statute in this case.

B. Application of Section 622.10(4). Jonas argued Jherica’s

postarrest behavior provided grounds to compel access to her mental
health records. This behavior included her emotionless call to a funeral

home to report her son had died and inquire about prices, flashing her

breasts in jail, and suggesting she should be in a “psych ward” in July

2009. Jonas also argued his access to her records was supported by her

history of smoking marijuana during her pregnancy, her demonstrated

pattern of dishonesty, and her admitted frustration while taking care of

her newborn son. The State and Jherica resisted.

On April 28, the day after an unreported hearing, the district court

denied Jonas’s motion in a ruling filed under seal. The court found that

though Jonas had “demonstrated the possibility that [Jherica]’s mental

health records contain exculpatory evidence, the defendant has not

demonstrated a reasonable probability that they contain exculpatory

information.” The district court noted that because Jherica’s records

were “very time and situation limited” they were unlikely to contain

exculpatory evidence. Jherica was first diagnosed with depression in her

early teens and then was diagnosed again at the jail after E.N.’s injuries.

The district court rejected as unpersuasive “the statements, incidents
and behaviors” defendant identified in support of his contention that the

records would contain exculpatory evidence. The district court also
 20

refused to allow defendant to access the records on the basis that there

was a “mere possibility that [Jherica] said something to a mental health

professional that inculpates herself and exculpates the defendant.” On

this point, the court observed, “If that were a ground for permitting

disclosure, it would have to be allowed in every case. Clearly, that is not

what the legislature intended.”

The district court identified two circumstances particular to this

case that lead it to this conclusion: “the defendant already knows much

about [Jherica]” and “had access to [her] pre-incarceration medical
records.” Finally, the district court concluded Jonas had not established

a compelling need for the mental health records because he “already

ha[d] information suggesting reasons why [Jherica] might harm the baby

and that could suggest she was trying to keep such harm a secret.”

The district court specifically found that Jonas had failed to

establish the information sought was not available from any other

source:

[G]iven the importance of the privacy interest that is at stake
here, and the fact that the statute specifically places the
burden on the defendant to show that there is no other
source for the information sought, the court does not believe
that a defendant is allowed under the statute to obtain
another person’s mental health records without first
exhausting every other source from which there is a
reasonable possibility that the same information could be
obtained. At least in this case, there is a reasonable
possibility that the defendant could obtain the information he
seeks merely by deposing [Jherica]. And, even if he cannot
do that, there is an equally strong possibility, given the
circumstances just discussed, that by taking the deposition
he would at least be able to make a stronger case for
obtaining her mental health records under the requirements
of SF 291.

(Emphasis added.)
 21

On our de novo review, we find the district court erred in failing to

conduct an in camera inspection of Jherica’s mental health records.

Jherica was a codefendant charged with endangering the same victim,

baby E.N. Her credibility was a central issue in the case. Her testimony

put E.N. in Jonas’s arms when the baby stopped breathing. She and

Jonas concocted matching stories to tell at the hospital, giving a version

of what happened that was at odds with the baby’s life-threatening

injuries. Jherica also gave inconsistent statements contradicted by her

trial testimony. Significantly, she behaved strangely in jail, by stating
she should be in “a psych ward,” baring her breasts, and falsely saying

her son was dead while asking, without emotion, about burial costs. She

pled guilty to three counts of child endangerment, albeit without

admitting to personally inflicting the baby’s injuries. Jonas’s defense

strategy included raising reasonable doubt whether certain injuries may

have been inflicted by Jherica instead of him. The district court made no

finding that Jonas’s motion was made in bad faith to intimidate or deter

her testimony or for any other improper reason. We conclude Jonas

“demonstrate[d] in good faith a reasonable probability that the

information sought [in Jherica’s records] is likely to contain exculpatory

evidence . . . and for which there is a compelling need for [Jonas] to

present a defense” within the meaning of section 622.10(4)(a)(2)(a).

The district court denied his motion in part because it found Jonas

failed to show that “the information is not available from any other

source,” as required under the statute. Iowa Code § 622.10(4)(a)(2)(a).

Specifically, the district court found Jonas failed to meet this

requirement because he failed to depose Jherica. Under the
circumstances of this case, we disagree that his failure to depose Jherica

was fatal to his motion to obtain her mental health records. Jherica may
 22

have made admissions to a mental health counselor that she would

forget or deny in an adversarial interrogation. Statements memorialized

by a neutral therapist would likely be more credible than Jherica’s self-

serving assertions as a hostile witness. Indeed, noted commentators

have recognized that “[e]ven the taking of a deposition from a hostile

witness may not provide the substantial equivalent of the information the

witness has given to a party to whom he or she is not hostile.”

Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, 8 Federal

Practice and Procedure § 2025, at 544 & n.23 (3d ed. 2010) (citing Fed. R.
Civ. P. 26(b)(3) advisory committee’s note). Her records may very well

have enabled defense counsel to more effectively cross-examine her at

trial or assisted counsel’s preparation for her deposition.

Accordingly, we reverse the district court’s ruling denying Jonas’s

motion for an in camera review of Jherica’s mental health records and

remand the case for the district court to conduct that review pursuant to

section 622.10(4)(a)(2). If the district court finds no exculpatory evidence

on that review, Jonas’s remaining convictions shall remain affirmed. If

exculpatory evidence is found, the district court shall proceed as directed

in section 622.10(4)(a)(2)(c) and (d) and determine whether Jonas is

entitled to a new trial.3

3This multistep procedure is similar to that prescribed in cases remanded for

in camera reviews to determine whether exculpatory evidence was withheld in violation
of the disclosure requirements in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963). For example, in State v. Johnson, we concluded the district court
erred by denying defendant’s motion to produce a list of names of those who witnessed
the alleged crime and their statements. 272 N.W.2d 480, 485 (Iowa 1978). We
remanded for an in camera review and directed that “[i]f it is found that exculpatory
material was withheld from the defendant, then a new trial shall be granted. If not, the
judgment shall stand affirmed.” Id. (citing prior Iowa cases using this procedure). The
United States Supreme Court also has directed such a procedure in the Brady rule
context. See Pennsylvania v. Ritchie, 480 U.S. 39, 58, 107 S. Ct. 989, 1002, 94
L. Ed. 2d 40, 58 (1987). The Ritchie Court held the defendant was entitled to have the
 23

VI. Defendant’s July 8 Statements to Detective Kelly.

A. Facts and Procedural Background. Late in the evening on

July 8, the hospital notified Detective Lori Kelly of the Des Moines Police

Department that a baby had been brought in with a brain injury. When

Detective Kelly arrived at the hospital, she learned that the victim, E.N.,

“was in very serious condition and may not make it.” Detective Kelly

interviewed four people that night: Jon, Mary, Jherica, and Jonas, in

that order. Greg Sweem, a DHS on-call worker, and Sergeant Lori Neely

were present during all of the interviews.
After Detective Kelly finished interviewing Jherica sometime

around 2 a.m., she asked Jonas to join her in a private room for an

interview. Jonas agreed and walked towards the room. Jon interjected,

“I’m not comfortable with my son, Jonas, being interviewed.” He asked

to be present during his son’s interview and told Detective Kelly, “I’m

acting as his attorney.” Detective Kelly asked Jon whether he was

licensed to practice law in Iowa, and he confirmed that he was. Detective

Kelly told Jon it would not be possible for him to sit in on the interview

because he was a witness. But, she “told both Jon and Jonas that, of

course, [Jonas] was welcome to have any attorney that he wanted . . .

‘any attorney in the world except for Jon Neiderbach.’ ” Jonas said

nothing during that exchange.

________________________________
trial court conduct an in camera review of the victim’s counseling records possessed by
a state agency. Id. On remand, the defendant was to receive a new trial if the records
“contain[] information that probably would have changed the outcome of his trial.” Id.
Conversely, if the records “contain no such information, or if the nondisclosure was
harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior
conviction [previously vacated by the state appellate court].” Id.; see also State v.
Garcia, 302 P.3d 111, 121 (N.M. Ct. App. 2013) (citing Ritchie in remand for trial court’s
in camera review of victim’s mental health records, with new trial to be granted only
upon determination that defendant had been prejudiced by improper exclusion of the
records in first trial).
 24

Jon repeated that “he was not comfortable with Jonas being

interviewed at 2:00 in the morning.” Detective Kelly explained she only

planned to ask Jonas the same questions she had asked him, his wife,

and Jherica. Detective Kelly then looked directly at Jonas and said, “It’s

up to you whether you speak with us or not. It’s your decision.” At that

time, Detective Kelly noted she had “made it clear that his father was not

going to be present [for the interview].” Jonas “said he was willing to

speak with [them] and followed [them] into the room.”

The interview ended about thirty minutes later when Jon barged
into the room, “saying that that was enough, that [they] didn’t need to

ask any other questions.” At that time, Detective Kelly and Jonas were

discussing whether Jonas had ever shaken E.N., “even if it was an

attempt to get him to get his attention or to get him to breathe after he

had gone limp . . . .” Significantly, Jonas had just answered affirmatively

when his father entered the room to end the interview.

On September 1, 2010, Jonas filed a motion to suppress the

statements he made during this interview. Jonas claimed Detective Kelly

had violated his right to counsel and that her deception as to whether his

father could represent him as an attorney rendered his confession

involuntary. The district court held a suppression hearing on October 1.

Detective Kelly and Jon testified.

Detective Kelly testified that she denied Jon’s request to be present

during her interview of Jonas because she considered Jon “a potential

suspect, just like everybody else who had been in contact with [E.N.]”

Detective Kelly added:

I knew that was not something that the Court would allow.
It was absurd to me that he would be able to represent his
son in a case simply because he is also involved. He’s a
witness. He’s a potential suspect.
 25

Detective Kelly explained that she considered Jon to be a suspect at that

time because “[t]here were four people who lived with the child, who had

several injuries, and experience and research shows that most cases

involve the caretakers, and Jon was one of them.”

Jonas was not in custody during the interview and was free to

leave at any time. No claim is made on appeal that the interview was

custodial. Detective Kelly testified that during her interactions with

Jonas, he never invoked his right to an attorney or his right to remain

silent, and he never asked to end the interview. The interview was not
recorded.

Although Jon admitted that he had not been formally retained as

an attorney by his son, Jon testified that approximately two and one-half

years prior he had represented his son in a criminal matter. Jon also

testified that he had recently given Jonas legal advice during the

investigation of E.N.’s broken arm.

The district court denied Jonas’s motion to suppress on

October 18:

Detective Kelly correctly informed Jon Neiderbach that he
could not act as his son’s lawyer during the criminal
investigation because Jon was also a suspect, a witness and
an employee of the DHS. The Iowa Rules of Professional
Conduct prohibit representation where there is a significant
risk that the representation will be limited by the personal
interest of the attorney. Iowa R. of Prof’l Conduct
§ 32:1.7(a)(2); see also Iowa R. of Prof’l Conduct § 32:3.7
(stating the general prohibition against being an advocate at
a trial when the lawyer is likely to be a necessary witness).
Jon had a clear conflict of interest as a potential suspect and
witness in the case. Since he had not been ruled out as a
suspect, Detective Kelly properly determined he could not sit
in on the interview of another suspect in the same case.

The district court also found that Detective Kelly informed Jonas that it
was his choice whether to speak with her. The district court concluded
 26

Jonas “knowingly, voluntarily and intentionally waived his right to

remain silent.” The district court also ruled Detective Kelly had not

violated Jonas’s right to counsel because that right could only be invoked

by Jonas, and thus, “Jon Neiderbach had no standing to assert these

rights on behalf of his adult son.” Finally, the district court determined

“[t]he police did not knowingly or intentionally frustrate the defendant’s

opportunity to meet with an attorney before or during the non-custodial

interview at the hospital.”

B. Analysis. Upon our de novo review of the record, we conclude
the district court correctly found Jonas’s statement to Detective Kelly

was voluntary and that he waived any right to counsel he may have had.

Jon was not the right lawyer for his son the night of July 8, 2009. Jon

was a witness as one of four adults residing in the home where his

grandson, E.N., had been injured repeatedly in recent weeks and that

very day. Jon was also a suspect at this initial stage of the investigation.

So, too, was Jon’s wife, Mary, the victim’s grandmother. A lawyer who is

personally involved as a witness, a closely related family member, and a

potential suspect in a matter police are investigating may have conflicting

motives to deflect blame. Such a lawyer should not be representing

another suspect interviewed by the police. See Iowa R. of Prof’l Conduct

§ 32:1.7(a)(2) (“[A] lawyer shall not represent a client if the representation

involves a concurrent conflict of interest [that] . . . exists if . . . there is a

significant risk that the representation . . . will be materially limited . . .

by a personal interest of the lawyer.”). We need not decide whether Jon

was ethically precluded from representing Jonas the night of July 8

because we decide this issue on another ground.
 27

In Johnson v. Zerbst, the United States Supreme Court discussed

the test for assessing whether a defendant has waived his constitutional

right to an attorney:

“[C]ourts indulge every reasonable presumption against
waiver” of fundamental constitutional rights and . . . we “do
not presume acquiescence in the loss of fundamental rights.”
A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege. The
determination of whether there has been an intelligent
waiver of right to counsel must depend, in each case, upon
the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of
the accused.

304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 68 L. Ed. 1461, 1466 (1938)

(footnotes omitted); see also State v. Hilpipre, 242 N.W.2d 306, 309 (Iowa

1976) (“It is well settled an individual may legally waive his or her

constitutional rights. But the State must prove by a preponderance of

evidence such was knowingly, voluntarily and intelligently done.”).

We will first address whether Jonas acted voluntarily in waiving

his right to counsel and giving the interview. In State v. Madsen, we

applied the totality-of-the-circumstances test to determine whether

statements defendant made during a noncustodial interview were
voluntary. 813 N.W.2d 714, 722–23 (Iowa 2012). Under this test,

“statements are voluntary if the defendant’s will is not overborne or his

capacity for self-determination is not critically impaired.” Id. at 722. The

factors to be considered in determining whether defendant’s statements

were voluntary include:

“[D]efendant’s age; whether defendant had prior experience
in the criminal justice system; . . . whether deception was
used; whether defendant showed an ability to understand
the questions and respond; the length of time defendant was
detained and interrogated; defendant’s physical and
emotional reaction to interrogation; whether physical
punishment, including deprivation of food and sleep, was
used.”
 28

Id. at 722–23 (quoting State v. Payton, 481 N.W.2d 325, 328–29 (Iowa

1992)).

At the time of the interview, Jonas, age twenty, was an adult.

According to his father’s testimony at the suppression hearing, Jonas

had some prior experience with the criminal justice system, although the

extent of that experience is not contained within the record. Jonas does

not allege Detective Kelly used any deception in taking his statement.

Detective Kelly told Jonas he could have “any attorney in the world

except for Jon Neiderbach.” Jonas never requested any lawyer, and
when told it was his choice whether to give the interview, he chose to

proceed.

The interview began at 2 a.m., after Jonas had been at the hospital

for about twelve hours under emotionally difficult circumstances with the

life of his baby in the balance. Yet, he makes no claim that he was too

fatigued to waive any right. The police did not detain him for any period

preceding the interview. We conclude that even if Jonas had a right to

have Jon represent him that night, Jonas knowingly and voluntarily

waived that right and that Jon acquiesced by allowing the interview to

proceed without telling Jonas to remain silent or to await the arrival of

another lawyer. We also find that Jonas’s statement to Detective Kelly

was made voluntarily. Detective Kelly specifically told Jonas, “It’s up to

you whether you speak with us or not. It’s your decision.” She said that

with Jon present. Jonas chose to proceed without counsel. We affirm

the district court’s ruling denying Jonas’s motion to suppress the

statement he made to Detective Kelly.

VII. The January 2011 Video and Photograph.
A. Facts and Procedural Background. Jonas moved in limine to

exclude from evidence a nearly five-and-a-half minute video and a
 29

photograph of E.N. taken in January 2011, eighteen months after he

sustained the injuries on July 8, 2009. The DVD shows E.N. having his

tracheostomy tube cleaned and suctioned. E.N. had several seizures

during the video. Jonas argued the video was irrelvant and even if

relevant, “its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.”

Specifically, Jonas argued “the video is clearly intended to arouse the

jury’s sense of horror and provide an instinct to punish.” His appellate

brief describes the video as “heart-wrenching.” On April 27, the district
court heard argument on the motion in limine. The State argued it

intended to offer the video to show “the seriousness of the injuries to

[E.N.] and clearly the condition that he was in . . . after [those] injuries.”

The court did not rule on the motion before the State sought to

admit the photograph and video at trial on May 5. During the State’s

direct examination of Shannon regarding E.N.’s current health condition,

the district court admitted the video and photograph into evidence over

defense counsel’s renewed objection. The video was played for the jury

while Shannon answered questions about it. The prosecution did not

mention the video during closing arguments.

B. Analysis. We must decide whether the district court abused

its discretion by allowing the video and photograph into evidence. See

Huston, 825 N.W.2d at 536 (noting evidentiary rulings under Iowa Rule

of Evidence 5.403 are reviewed for abuse of discretion). Our court has

long recognized photographs are not inadmissible simply because they

are “gruesome or may tend to create sympathy . . . if there is just reason

for their admission.” State v. Hummell, 228 N.W.2d 77, 83 (Iowa 1975);
accord State v. Coburn, 315 N.W.2d 742, 746 (Iowa 1982) (affirming

ruling allowing into evidence “grisly” photos that were “a fair and
 30

accurate depiction” of the child–victim’s condition). “Trial courts have

discretion in determining whether the value of pictures as evidence

outweighs their grisly nature.” State v. Hickman, 337 N.W.2d 512, 516

(Iowa 1983); see also Iowa R. Evid. 5.403.

We disagree with Jonas’s contention that the January 2011 video

and photograph were irrelevant. Evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would

be without the evidence.” Iowa R. Evid. 5.401. The State charged Jonas
with child endangerment causing serious injury for the brain injury E.N.

sustained on July 8. The State was required to prove beyond a

reasonable doubt that E.N. suffered a “serious injury.” See Iowa Code

§ 726.6(1), (5) (2009). Iowa Code section 702.18 defines a “serious

injury,” in part, as a “[b]odily injury which . . . [c]auses protracted loss or

impairment of the function of any bodily member or organ.” Id.

§ 702.18(1)(b)(3). Jonas did not stipulate that E.N. suffered a serious

injury. The video and photograph depicted E.N.’s condition before trial

and reflected the long-term effects of the injuries E.N. had sustained

eighteen months earlier. The video and photograph are relevant to the

issue of the victim’s serious injury.

We next consider whether the video and photograph were

nonetheless inadmissible under rule 5.403. See State v. Henderson, 696

N.W.2d 5, 10 (Iowa 2005) (“Even relevant evidence may be excluded,

however, if its probative value is substantially outweighed by the danger

of unfair prejudice.”). To determine whether evidence should be excluded

under rule 5.403, we apply a two-part test. Huston, 825 N.W.2d at 537.
“First, we ‘consider the probative value of the evidence.’ Second, we

balance the probative value ‘ “against the danger of its prejudicial or
 31

wrongful effect upon the triers of fact.” ’ ” Id. (quoting State v. Cromer,

765 N.W.2d 1, 8 (Iowa 2009)). Evidence is unfairly prejudicial when it

“appeals to the jury’s sympathies, arouses its sense of
horror, provokes its instinct to punish, or triggers other
mainsprings of human action [that] may cause a jury to base
its decision on something other than the established
propositions in the case.”

Henderson, 696 N.W.2d at 10–11 (quoting State v. Plaster, 424 N.W.2d

226, 231 (Iowa 1988)). But, in a sense, all powerful evidence is

prejudicial to one side. The key is whether the danger of unfair prejudice

substantially outweighs the evidence’s probative value, as we noted in

Huston:

[T]he purpose of all evidence is to sway the fact finder.
In child abuse cases, much evidence will be at least
somewhat prejudicial. Exclusion is required only when
evidence is unfairly prejudicial [in a way that] substantially
outweighs its probative value. “Unfair prejudice” is the
undue tendency to suggest decisions on an improper basis,
commonly though not necessarily, an emotional one.

Huston, 825 N.W.2d at 537 (citations and internal quotation marks

omitted).

The video of E.N. depicted the ongoing care that he needs and the

lasting effects of his injuries. Video evidence is highly effective. “Courts

of other jurisdictions have dealt with the issue of the prejudicial nature

of day-in-the-life videos and have frequently admitted them into

evidence.” Eckman v. Moore, 876 So. 2d 975, 983 (Miss. 2004). Jonas

does not claim the video of E.N. is misleading or deceptive or that it

inaccurately depicts E.N.’s condition. See id. at 984 (“In order for the

video to have the least amount of prejudicial value, the video must

portray ordinary, day-to-day situations.”). Rather, Jonas argues the
video was unnecessary and inflamed the jury. The video’s impact on the

jury results from the nature of E.N.’s condition, which is fairly depicted.
 32

We do not find the video’s probative value is substantially outweighed by

unfair prejudice. Just as trial courts have discretion to admit into

evidence autopsy or crime scene photographs showing a murder victim,

even if the cause of the victim’s death is undisputed, so too may district

courts allow video accurately depicting an injured child’s condition, even

if other evidence establishes the seriousness of the injury. The

prosecution has leeway in what evidence to use to prove injuries, subject

to the district court’s discretion under rule 5.403.

In Rodriguez v. State, the Texas Court of Appeals held video of the
victim’s current condition was admissible, rejecting the criminal

defendant’s challenge under Texas Rule of Evidence 403. 352 S.W.3d

548, 555 (Tex. Ct. App. 2011). The appellate court noted the video had

“some probative value in showing that [the victim] suffered a serious

bodily injury” as was required for the conviction. Id. at 553. The court

noted the defendant had not stipulated that the victim’s injuries were

serious. Id. Rodriguez, like Jonas, argued the video should have been

excluded under rule 403 because medical records and testimony

established the requisite serious bodily injury and that the video was

cumulative and prejudicial. Id. at 554. The Rodriguez court disagreed,

stating, “Despite the existence of other evidence to document [the

victim]’s injuries, the recording communicates that [his] injuries were

serious in a non-technical way that is capable of being easily understood

by laymen.” Id. Moreover, the video “reflected no more than what the

jury would see” if the victim had appeared in the courtroom. Id. at 555.

The same is true for the video of E.N.

We hold the district court did not abuse its discretion by allowing
into evidence the January 2011 video and photograph of E.N.
 33
VIII. Expert Testimony on Shaken Baby Studies with
Confessions by Caregivers.

Jonas challenges expert testimony discussing medical journal case

studies of documented brain injuries in which caregivers confessed to

shaking the infant–victims. Jonas contends the expert testimony

violated the Confrontation Clause and rules against hearsay. The

testimony of two experts for the State is at issue.

Defense counsel first objected to the testimony of Dr. Wilbur

Smith. While explaining the cause of E.N.’s head injuries, Dr. Smith

described the historical underpinnings of the acceleration–deceleration

theory. One case history discussed a nanny’s admission that she

thought it was appropriate to violently shake babies. Jonas’s counsel

objected to the statement as hearsay, which should have been excluded

from evidence because he did not “have the opportunity to question the

nanny to see if it was a coerced interrogation.”

Jonas’s counsel later objected to similar testimony from the State’s

expert, Dr. Carole Jenny. Dr. Jenny described a study that compared

injuries suffered by children who were known to have been shaken with

the injuries of children whose caregivers denied that they had shaken

them. Defense counsel objected to the following testimony from
Dr. Jenny:

Q. Can you talk to us a little about kind of the type of
force or what you might expect to see if you were an
independent observer watching this event. A. I can say that
people who have seen babies being beaten or shaken report
it to be extremely disturbing. There are good reports that
have been documented, as well as multiple, multiple
confessional reports of people who have been involved with
abusing children and causing head injury.
It is not something that happens in the course of
normal parenting. It is not something that is, you know,
holding the baby and patting them on the back. It is a
violent act as reported by the people who do it and the
people who see it.
 34
MR. DICKEY: Your Honor, I will object. That is
hearsay.
THE COURT: Overruled.
Q. Doctor, let me ask you this: Have there been
published studies, in fact, in the American Academy of
Pediatrics dealing or comparing admissions or statements by
a perpetrator and the injuries that were seen in those
particular cases? A. Yes.
Q. Were those consistent with what those individuals
were saying?
MR. DICKEY: Objection, Your Honor. This is hearsay.
May I approach?
THE COURT: Yes.
(OFF THE RECORD)
THE COURT: The objection is overruled and for the
same reasons that similar objection was overruled last week
with the Court, of course, permitting the defendant at the
break to make whatever record the defendant thinks is
appropriate. Mr. Foritano.
Mr. FORITANO: Thank you, Your Honor.
Q. Dr. Jenny, I am not sure where I left off. Let me
ask you this: Have there been studies comparing statements
by perpetrators that discuss the violent shaking and/or
shaking and impact, that compare the injuries or looked at
the injuries suffered by those infants? A. The most recent
study was by Adamsbaum. She looked at 189 cases, I
believe, that were adjudicated, that had gone through the
courts. There were 28 people who admitted to hurting a
child. All of them admitted to shaking. Some of them
admitted to impacting the baby as well.
They found that when they compared the injuries in
the confession cases with the injuries in cases where people
who hadn’t confessed, that they were comparable, the babies
were injured in the same way.
Q. We are talking about that same type of
acceleration/deceleration injury? A. Well, yes, the injury
result, the subdurals and subarachnoids, the brain damage.
It was similar in both groups.
Q. Those were published in journals typically relied on
in the medical field? A. That article was published in the
journal called Pediatrics, which is the journal of the American
Academy of Pediatrics, which is the most prestigious journal
in the field of pediatrics in the world.
 35

(Emphasis added.) In overruling Jonas’s objection to the testimony of

Drs. Jenny and Smith, the district court stated:

I do not believe that the matters that you are objecting to
violate either the hearsay rule or your client’s Sixth
Amendment rights. I do not believe they amount to anything
that would be considered testimonial. They are matters that
experts rely on.
Dr. Smith’s testimony is basically the same as
[Dr. Jenny’s] testimony in terms of how they formed opinions
about mechanisms of these injuries and so forth.
You are certainly entitled to ask these witnesses
whether it is possible that the underlying information that
was relied on, such as confessions of individuals about how
they treated a child, whether they considered the reliability
of those confessions. In other words, did anybody consider
whether all of these or some of these confessions were
coerced or were not voluntary or whatever.
So I do not believe—beyond that, the matters are
general in nature. I mean, they are not testifying about
particular incidents that have any relationship to this
particular case other than that this is how they studied
these type of injuries and their opinions about how they
happen.
So I do not believe that this testimony violates, again,
either the hearsay rule or your client’s Sixth Amendment
right.

(Emphasis added.)

We begin our analysis with Iowa Rule of Evidence 5.703, which we

have said allows

an expert [to] base his or her opinion on facts or data that
are not admissible in evidence so long as they are “of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject.”

Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 182 (Iowa 2004) (quoting

Iowa R. Evid. 5.703). We recently noted that “rule 5.703 is intended to

give experts appropriate latitude to conduct their work, not to enable
parties to shoehorn otherwise inadmissible evidence into the case.”

Stenzel, 827 N.W.2d at 705. Dr. Jenny testified that the Adamsbaum
 36

study was published in the journal Pediatrics, which she described as

the “most prestigious journal in the field of pediatrics in the world.” She

identified Pediatrics as a journal “typically relied on in the medical field.”

Significantly, however, she never testified that the facts and data in the

Adamsbaum study derived from police interrogations were “of a type

reasonably relied upon by experts” in her field, as required under rule

5.703. Iowa R. Evid. 5.703; accord Stenzel, 827 N.W.2d at 705 (“Rule

5.703 requires that the facts and data be viewed as reasonably reliable

by experts in ‘the particular field.’ ”). Nor does the State claim her
testimony regarding the Adamsbaum study was admissible under the

learned treatise exception to the hearsay rule. See Iowa R. Evid.

5.803(18). Accordingly, we conclude the district court erred by

overruling Jonas’s hearsay objections to the experts’ testimony regarding

that study as well as the nanny case study.

Nevertheless, “[w]e only find reversible error when the admission of

improper evidence affects a party’s substantial rights.” Stenzel, 827

N.W.2d at 708. “ ‘The admission of hearsay evidence “is presumed to be

prejudicial error unless the contrary is affirmatively established.” ’ ” Id.

(quoting Gacke, 684 N.W.2d at 183). A lack of prejudice may be

established when similar information is properly admitted through

another expert witness. See Gacke, 684 N.W.2d at 183. We find that

occurred here.

Dr. Smith testified, without objection, as follows:

Q. Can you tell us what that mechanism [of brain
injury] is, and then maybe we can talk a little bit more about
the studies? A. Sure. I did also misstate. The doctor was
Guthkelch, not Geddes, was involved.
But the—there are a number of studies which have
evolved to make it clear that severe acceleration of the head,
particularly if it is off axis—in other words, instead of being
straight back and forth, the head flops from side to side—
 37
that that can cause a severe brain injury. Those are
mainstream studies which are widely accepted.
....
There have been a number of studies, including one
that we did where we looked at Iowa kids with this problem,
and we found about half of the time we could find evidence
of an impact, half of the time we couldn’t. There probably is
some validity to the impact making it even worse, but in my
belief you can certainly do it just by straight
acceleration/deceleration, shaking the baby with the head
off axis.

(Emphasis added.) Dr. Smith thus testified that there are “mainstream

studies which are widely accepted” establishing the causation theory that

he was advocating. This testimony did not contain any reference to the

nanny or the twenty-eight defendants accused of a crime from the

Adamsbaum study. Moreover, he testified without objection to a third

study—an Iowa study—that showed that impact was not always found in

cases involving brain-injured children. Dr. Smith stated that the rapid

shaking of a baby’s head causes the blood vessels of the brain to rip,

causing subdural hemorrhaging. He further testified that when a baby’s

temporal tip is moved back and forth against the skull, the tissue is

injured. Dr. Smith testified that E.N. had both of these types of injuries.

Based upon this record, we conclude that there is no reversible

error resulting from the admission of Dr. Jenny’s testimony regarding the
Adamsbaum study or Dr. Smith’s testimony about the nanny case study.

The hearsay testimony was brief, and there was ample, properly admitted

evidence from which the jury could conclude that impact was not

required to inflict brain injuries.

We next address Jonas’s Confrontation Clause objection under the

Sixth Amendment to the United States Constitution and article I, section
10 of the Iowa Constitution. The threshold question in a Confrontation

Clause analysis is whether the evidence is “testimonial.” See Crawford v.
 38

Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177,

203 (2004). The Crawford Court held that a statement given by the

defendant’s spouse during a police interrogation and read into evidence

against him at trial was testimonial. Id. at 68, 124 S. Ct. at 1374, 158

L. Ed. 2d at 203 (“Whatever else the term covers, it applies at a minimum

to prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations.”). The State argues that the

anecdotal “confessions” in the Adamsbaum study were simply referenced

to support expert opinion testimony, not for the truth of the matters
asserted. Jonas argues that the case histories with anecdotal

confessions referred to by the State’s experts were offered for the “truth”

of the proposition that “shaking alone can cause enough force to cause a

traumatic brain injury.” Because Jonas lacked the opportunity to cross-

examine the persons in the underlying case histories who “confessed” to

shaking the babies whose injuries were studied, he argues the

Confrontation Clause prohibited expert testimony referring to those

studies. Jonas relies on concurring and dissenting opinions in Williams

v. Illinois to support his Confrontation Clause claim. 567 U.S. ___, 132

S. Ct. 2221, 183 L. Ed. 2d 89 (2012). In Williams, four dissenters and

Justice Thomas disagreed that the Confrontation Clause had been

avoided because the expert’s testimony regarding the basis of her opinion

was offered for a purpose other than the truth of the matter asserted.

See id. at ___, 132 S. Ct. at 2256–59, 183 L. Ed. 2d at 129–33

(Thomas, J., concurring); id. at ___, 132 S. Ct. at 2268–70, 183 L. Ed. 2d

at 142–45 (Kagan, J., dissenting). Because we have concluded above

that any error in admitting the testimony regarding the nanny case study
or Adamsbaum study was harmless, we need not decide whether the
 39

testimony was offered for its truth or if it would be considered

“testimonial” for purposes of the Confrontation Clause.

IX. The Limitation on Cross-Examination.

During the cross-examination of Jherica, defense counsel asked

Jherica whether she was under the care of a physician, psychologist, or

psychiatrist while she was in jail. Defense counsel sought to impeach

Jherica with an inconsistent statement she made to the judge during her

guilty plea. The State objected. After hearing Jonas’s offer of proof on

the issue, the trial court sustained the State’s objection, stating as
follows:

I think the collateralness of it comes in in this sense, that it
has only relevance in challenging the witness’s credibility. I
think there are limits to what you can do in the way of
impeaching witnesses to challenge their credibility.
You can’t find anything that you could then ask a
witness about and then prove that she made an inconsistent
statement about it at some time in the past.
....
The suggestion of this question, although you could
impeach her with her prior inconsistent statement and her
guilty plea, comes too close to suggesting that psychiatric
issues are a substantive issue in this case. They aren’t.
There has been no foundation laid which would make
them an issue. Its probative value, therefore, in—as it
reflects on her credibility is outweighed by its potential for
prejudice.
....
. . . I think its probative value in challenging her
credibility is limited. Its potential for prejudice is great. And
I, therefore, am not going to allow it.

We agree and conclude the district court did not abuse its

discretion in limiting the cross-examination of Jherica on this collateral

issue.

It is well settled . . . the right to impeach by prior
inconsistent statements is not without limit. The subject of
 40
the inconsistent statement, if it is to be admissible, must be
material and not collateral to the facts of the case.

State v. Hill, 243 N.W.2d 567, 571 (Iowa 1976).

X. Alleged Prosecutorial Misconduct.

A. Background Facts and Procedural History. Jonas’s

allegation of prosecutorial misconduct relates to his claim that the

prosecutor mischaracterized the testimony of one of his expert witnesses,

Dr. Francis Blankenberg. Dr. Blankenberg testified, in relevant part, as

follows:

Q. The subdural hematomas and the subarachnoid
hematomas are the result of the acceleration and
deceleration and the shearing of the bridging veins, right?
A. Yes, that is the usual teaching. Yes.
Q. That is the mainstream – A. That is the
mainstream opinion, yes.
Q. That is what you observed, right? A. Yes.
Q. When you have that kind of an injury, that sudden
deceleration to the brain, that can cause the hypoxic
ischemic injury? A. Not necessarily.
Q. But it certainly could, right? A. There is a big
debate about whether that actually can occur as an isolated
finding.
The central areas of the brain that are in question that
were—that suffered a severe hypoxic injury, that is not
typical for child abuse, per se. That is very consistent,
however, with complete cessation of blood flow or oxygen for
a period of four to five minutes.
....
Q. You can certainly get edema from the
acceleration/deceleration injuries, right? A. You wouldn’t
expect pure edema. It would have to be some degree of
hemorrhage or intraparenchymal and shear injury which is
manifested on MR by hemorrhage. And sometimes CTs can
be sensitive enough to pick it up, but MR is more sensitive.
Q. Edema is swelling, right? A. Correct.
Q. You get that with acceleration/deceleration
injuries, right? A. No. You have to injure the microvasc,
which are in myelin fibers. So you have to disrupt different
parts of the brain in order to get “edema.” But a lot of it is
mostly shearing of white matter and blood vessels inside the
 41
brain that has to be occurring first, and then secondarily you
get edema.
....
Q. You were also asked about
acceleration/deceleration injuries. You use a couple of
terms that I think we need to explain. You used the term
mass effect. A. Correct. Let’s put it this way: If you have
acceleration/deceleration injury—and let’s talk about the
brain itself, not the surrounding bridging veins. If you have
severe acceleration/deceleration injuries, you tear the white
matter tracks up along with the white matter, along with the
blood vessels on the white matter tracks, that tends to cause
hemorrhage. Sometimes the hemorrhages are not easily
seen on CT, though a lot of times they are.
But certainly on MR you would see signs of bleeding
on the sequences they provided had they had that kind of
injury to the brain itself.
....
Q. You also used—and I don’t know if I am going to
pronounce this correctly—intraparenchymal?
A. Intraparenchymal, meaning inside the brain.
Q. Why would that be indicative of
acceleration/deceleration? A. If you had intraparenchymal
hemorrhages, where the white matter meets the gray matter is
a weak area when you are in that particular motion. That is
where you get tearing.
Q. Did you observe that on [E.N.]? A. No.

(Emphasis added.) The alleged misrepresentation occurred first during

the State’s cross-examination of another of defense counsel’s expert

witnesses, Dr. Ronald Uscinski:

Q. Would it change your opinion at all if Doctor
Blankenberg said on Friday that the injuries to [E.N.] were
the result of acceleration/deceleration injuries?
MR. DICKEY: Objection, that’s a mischaracterization of
Doctor Blankenberg’s testimony.
THE COURT: Once again, jurors, you are the judges of
the facts. You have to remember what other witnesses said
so overruled.
A. And your question is again?
Q. My question is would it change your opinion if
Doctor Blankenberg testified on Friday that [E.N.]’s injuries
were a result, the subdurals, were a result of an
 42
acceleration/deceleration injury? A. Would it change my
opinion? No, it wouldn’t change my opinion.
Q. That the subdurals were caused by shearing of the
bridging veins. A. Again, it would not change my opinion.

Jonas alleges the prosecutor misrepresented Dr. Blankenberg’s

testimony again during closing arguments when he said,

“Dr. Blankenberg . . . acknowledged that [E.N.]’s injuries were as a result

of the acceleration and the deceleration of the brain and causing those

bridging veins to sheer.” Defense counsel again objected to the State’s

characterization of Dr. Blankenberg’s testimony. The prosecutor then

interjected stating, “That is exactly what he said, and you remember.”

The court interrupted, admonishing the jurors that they “are the judges

of the facts . . . [and] of what the witnesses said.” The prosecutor then

said, “You rely on your memories for what his testimony was. That is

what he said was the mechanism for those injuries.” Defense counsel

did not request a mistrial after the court overruled either of his

objections.

B. Analysis.

1. Preservation of error. We first consider the State’s claim that

Jonas waived error by failing to request a mistrial after the court
overruled his objections. The State relies on two cases: Krogmann, 804

N.W.2d 518, and State v. Dahlstrom, 224 N.W.2d 443 (Iowa 1974). Both

cases are distinguishable because, here, the district court overruled the

objections by Jonas’s counsel, while in Krogmann and Dahlstrom, the

objections were sustained.

In Krogmann, we held defendant did not preserve a claim for

prosecutorial misconduct when he failed to move for a mistrial after “the
district court sustained the objection and the question was withdrawn.”

804 N.W.2d at 526. This is because “the district court had no reason to
 43

believe that [the defendant] wanted anything further done with respect to

the prosecutor’s improper question.” Id. That rationale does not apply

when the defendant’s objection is overruled. Dahlstrom similarly held

error was not preserved when defendant failed to move for a mistrial after

the court sustained his objection. 224 N.W.2d at 449. We noted that “it

is the duty of the party aggrieved to timely voice objection to give the trial

court opportunity to rule on the matter since [it] occupies a position of

vantage and [its] conclusion is entitled to much weight.” Id. That duty is

satisfied by the objection. A motion for a mistrial would be futile when
the district court has overruled the objection to the statements giving rise

to the grounds for a mistrial.

Our court has previously held that defense counsel need not move

for a mistrial to preserve error on a claim of prosecutorial misconduct

when “he promptly objected to the [prosecutor’s] statement . . . [and]

[t]he objection was overruled.” State v. Phillips, 226 N.W.2d 16, 19 (Iowa

1975). Phillips is controlling here. Counsel need not move for a mistrial

after an objection to the misstatement is overruled. Accordingly, we hold

error was preserved in this case.

2. Merits. “To prevail on a claim of prosecutorial misconduct, the

defendant must show both the misconduct and resulting prejudice.”

Krogmann, 804 N.W.2d at 526. In assessing whether retrial is warranted

when prosecutorial misconduct is alleged, we consider the following:

“ ‘(1) the severity and pervasiveness of misconduct; (2) the
significance of the misconduct to the central issues in the
case; (3) the strength of the State’s evidence; (4) the use of
cautionary instructions or other curative measures; (5) the
extent to which the defense invited the misconduct.’ ”

Id. (quoting State v. Boggs, 741 N.W.2d 492, 508–09 (Iowa 2007)). Of
these factors, the most important factor we consider is the strength of
 44

the State’s evidence. Id. Although prejudice may result from an isolated

incident of prosecutorial misconduct, “ ‘[o]rdinarily a finding of prejudice

results from [p]ersistent efforts to inject prejudicial matter before the

jury.’ ” Id. (quoting State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976)).

The State on appeal does not argue that the prosecutor correctly

characterized Dr. Blankenberg’s testimony, but does argue lack of

prejudice. The district court made no finding that the prosecutor

mischaracterized the expert testimony and indeed overruled the

objections of defense counsel who argued the testimony was
mischaracterized. We affirm the district court on grounds that Jonas

failed to meet his burden to show prejudice requiring a new trial. Several

experts affirmatively testified E.N.’s brain injuries were consistent with

either an impact or acceleration–deceleration mechanism. The jury

heard the testimony of all the experts. The jury also heard defense

counsel’s objection during the cross-examination. The prosecutor’s

closing argument again drew an objection, and the court admonished the

jurors to rely on their own recollection of the testimony. The jury was

also instructed that what lawyers argue is not evidence. Prosecutors

who misstate testimony risk harming their own credibility with the jury.

Cf. Krogmann, 804 N.W.2d at 526–27 & n.10 (observing prosecutor’s

inappropriate comment was just as likely to offend the jury rather than

score points for the state). We admonish all trial counsel to scrupulously

avoid misstating or embellishing expert testimony on medical causation

issues.

Yet, the district court was better positioned than an appellate court

reviewing a cold transcript to determine whether any misstatements by
the prosecutor prejudiced the defendant:
 45
It is axiomatic that a trial court is better equipped than
appellate courts can be to determine whether prejudice
occurs. This is because the trial court is a firsthand
observer of both the alleged misconduct and any jury
reaction to it.
State v. Anderson, 448 N.W.2d 32, 34 (Iowa 1989). Jonas has cited no

case on point holding a new trial was required because the prosecutor

misstated an expert’s testimony. Accordingly, we hold that the district

court did not abuse its discretion by denying Jonas a new trial on this

issue.

XI. Aiding and Abetting and Alternative-Theory Jury
Instructions.

Jonas appeals the trial court’s submission of aiding and abetting

instructions on counts one, two, and five. Jonas also appeals the trial

court’s submission of the alternative-theory jury instruction, which

allowed the jury to convict even if the jurors did not agree as to whether

Jonas acted as a principal or as an aider or abettor. Jonas contends the

evidence was insufficient to submit those instructions. We only address

whether the court properly submitted these instructions as to counts one

and two, however, because as is discussed in division XIII of this opinion,

we hold the evidence insufficient to support count five.
It is well established that

“[t]o sustain a conviction on the theory of aiding and
abetting, the record must contain substantial evidence the
accused assented to or lent countenance and approval to the
criminal act either by active participation or by some manner
encouraging it prior to or at the time of its commission.”

State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010) (quoting State v.

Tangie, 616 N.W.2d 564, 574 (Iowa 2000)). The State may prove the

defendant participated in the crime by either direct or circumstantial
evidence. Hearn, 797 N.W.2d at 580. “ ‘Knowledge is essential; however,
 46

neither knowledge nor presence at the scene of the crime is sufficient to

prove aiding and abetting.’ ” Id. (quoting State v. Barnes, 204 N.W.2d

827, 828 (Iowa 1972)). We have previously held that “ ‘[e]vidence of a

defendant’s presence, companionship, and conduct before and after the

offense is committed may be enough from which to infer a defendant’s

participation in the crime.’ ” Id. at 581 (quoting State v. Lewis, 514

N.W.2d 63, 66 (Iowa 1994)).

On July 8, the day E.N. suffered his brain injury, two people were

in the Neiderbach home—Jonas and Jherica. Initially, Jherica told the
hospital physician, her mother, Jonas’s mother, and Detective Kelly that

she was in the room with Jonas when E.N. stopped breathing. Jonas

and Jherica told a mutually consistent story that failed to explain E.N.’s

injuries: E.N. screamed, started gasping, and then turned blue. Jherica

later recanted this story and testified that Jonas was alone with E.N.

when he stopped breathing. Jherica also told detectives she may have

shaken E.N. after he stopped breathing, but later testified she never

shook E.N. “ ‘[T]he jury [is] free to reject certain evidence, and credit

other evidence.’ ” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)

(quoting State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006)). Given the

evidence that Jonas and Jherica were both present when the offense was

committed and that they colluded with each other to explain E.N.’s

condition, a reasonable jury could have concluded that Jonas aided and

abetted Jherica in committing an act that resulted in E.N.’s brain injury.

Accordingly, the court’s submission of the aiding and abetting

instruction and alternative-theory instruction for counts one and two are

affirmed. For the reasons discussed in division XIII of this opinion, we
hold the court erred in giving the instruction as to count five.
 47

XII. Weight of the Evidence.

Jonas also appeals the district court’s denial of the part of his

motion for a new trial that alleged the verdicts on counts three and six

were contrary to the weight of the evidence presented at trial.4 We

accord the district court “broad discretion in ruling on a motion for new

trial.” Reeves, 670 N.W.2d at 202. We reverse the district court only if it

has abused its discretion. Id. In Reeves, we stated:

On a weight-of-the-evidence claim, appellate review is
limited to a review of the exercise of discretion by the trial
court, not of the underlying question of whether the verdict
is against the weight of the evidence. [Commonwealth v.]
Widmer, 744 A.2d [745,] 753 [(Pa. 2000)]; see also United
States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988)
(appellate court neither sits to judge credibility of witnesses
nor to reweigh the evidence; rather appellate court is limited
to examining the evidence produced at trial to determine
whether the district court’s determination that the evidence
does or does not “preponderate heavily against the verdict” is
a clear and manifest abuse of discretion).

Id. at 203. For each challenged count, we summarize the evidence

presented and analyze whether the district court abused its discretion in

determining that the evidence does not preponderate heavily against the

verdict.

A. Count Three—Broken Arm.

1. Summary of testimony. Jonas and Jherica took E.N. to the

emergency room on June 18 for what turned out to be a broken arm.

Dr. Selover, the treating pediatrician, recounted Jonas’s version of how

the injury occurred as follows:

Father related a history that the baby was hungry and was
crying. He was sitting on a bed holding the baby. Mother
went to another room to make a bottle for the baby.

4Jonas’s motion also challenged the jury’s verdict as to count two, but he does

not appeal the denial of his motion for new trial as to that count.
 48
While waiting for Mom to make the bottle, the baby
was still crying. Dad set the baby down onto the bed. At the
time he set the baby on the bed, he related that he heard a
“snap,” the baby cried harder, and he discovered that there
was an injury to the baby.
....
. . . Father said that the baby put his arm behind his
back as he set the child down onto the bed.

Several other witnesses testified Jonas told them a similar story.

Although none of the State’s physician witnesses were willing to

rule out the possibility that E.N.’s arm had been broken in the manner

Jonas described, they all agreed that his version was highly unlikely.

Dr. Smith, an expert witness for the State, emphasized that “[i]t would be

so unusual you could probably publish it as a case report because it is

not—certainly would be at variance with most thoughts and practices.”

According to Dr. Selover, a spiral fracture resulting from setting a

baby down on a bed was unlikely, in part, because

[a] normal, healthy newborn, when you lie them down or if
you lower their head, will elicit something called a Moro
response. It is a primitive reflex where the baby’s arms will
come up in front of the baby. The legs will come as well.
Also, a normal newborn, their muscle tone is such that
they hold their arms and their legs in front of them. They
don’t put their arms behind their back.

Dr. Lindaman and the State’s two expert witnesses—Dr. Smith and

Dr. Jenny—also testified that E.N.’s Moro reflex and flexor tone made it

unlikely his arm would have been behind his back when Jonas placed

him on the bed. Dr. Selover further disputed Jonas’s account, noting it

was “unlikely that the baby’s weight alone would provide sufficient force

to fracture the baby’s arm.” This testimony was buttressed by Dr. Smith,

who noted that “[t]he humerus is a fairly strong bone. . . . It takes a good
amount of force to break that.” Dr. Jenny agreed that there would need

to be “a significant degree of force involved.”
 49

When asked what the mechanism of injury would be for a spiral

fracture in an infant, Dr. Smith testified:

Usually, a twisting, wrenching force. But it is possible
somebody could hit the child in the arm; or it is possible, I
guess, that a child might be caught, like between a car or
some—you know, some hard surface and be pinned and
fracture.
The spiral fracture classically is a twist fracture. But
there is some pretty good work in the orthopedic literature
that follows the stress lines and shows that you can do it
with impact too. It is just less likely, considerably less likely,
with impact.
....
. . . Usually, it is grabbing more at the elbow and
twisting or wrenching, pulling out or in—I can’t tell which—
the arm. It takes a lot of force.

Dr. Lindaman acknowledged he had advised E.N.’s other

physicians and DHS that he believed E.N.’s injury was “consistent with

the history they had obtained and the one [he] had obtained.” He

explained, however, that at that time he was unaware flexor tone would

still be present at E.N.’s age. At trial, Dr. Lindaman testified that, in his

opinion, Jonas’s version was unlikely because [E.N.]’s flexor tone would

keep his arms in front, not behind him.

Jonas also called two expert witnesses, Dr. Blankenberg and

Dr. Errol Mortimer, who testified about E.N.’s broken arm. They agreed
it was possible for a spiral fracture to result from an arm being pinned

while an infant is laid on his back. Dr. Mortimer further testified his

opinion would be unaffected by the fact that a child of E.N.’s age would

exhibit the Moro reflex and flexor tone because they “really only appl[y] to

[children] when they are startled or when they are moved in a particular

way.”
While cross-examining Dr. Selover and Dr. Jenny, defense counsel

also introduced into evidence two photographs showing E.N. being held
 50

with his arm dangling behind his back. Defense counsel presented

Dr. Selover with the first photograph, which he agreed did not show “a

good example of flexor muscle tone.” On redirect, however, Dr. Selover

noted that it appeared E.N. was sleeping in the photograph, which was

significant because “[a] sleeping baby[’s muscles] will, of course, be

relaxed . . . [whereas in] [a]n awake baby, the muscles are active,

engaged.” Defense counsel confronted Dr. Jenny with the second

photograph, which showed E.N. being held by his grandmother.

Dr. Jenny admitted E.N. was “not exhibiting flexor tone at that point.”
But, Dr. Jenny reiterated that an infant who was being laid down, as

opposed to being held as was depicted in the photograph, would exhibit

the Moro response and flexor tone and thus would lift his arms up in

front of him.

2. Analysis. Jonas argues the weight of the evidence presented

does not support his conviction for child endangerment under the third

count. The jury instruction read as follows:

1. On or about June 18, 2009 the defendant:
a. knowingly acted in a manner that created a
substantial risk to E.N.’s physical health or safety; or
b. by an intentional act or series of intentional acts,
used unreasonable force: (i) that resulted in E.N.
suffering a broken arm; or (ii) with the specific intent
of causing a serious injury to E.N.
2. When he committed the act(s) the defendant was E.N.’s
parent.
3. As a result of the defendant’s acts, E.N. suffered a serious
injury.

Jonas’s challenge focuses on the first element of the instruction.

Jonas argues the State failed to rebut his version of how E.N.’s arm was
broken, given that he consistently provided the same explanation for the

injury to several people and Dr. Lindaman testified that it was possible
 51

for E.N. to have suffered a spiral fracture had his arm been pinned

behind his back, as Jonas described. Jonas also claims the two photos

of E.N. showing his arm “dangling to the side and down below his back”

“flatly refuted” the State’s expert testimony that Jonas’s story was

inconsistent with the involuntary physical responses of an infant E.N.’s

age. Finally, Jonas emphasizes that “the prosecution never offered any

alternative explanation for the injury.” We disagree.

The jury heard from four physicians who testified that the presence

of flexor tone and the Moro reflex in an infant E.N.’s age substantially
undermined Jonas’s explanation for the cause of E.N.’s broken arm

because it made it unlikely E.N.’s arm would have been behind his back

when he was laid down on the bed. Dr. Smith, Dr. Selover, and

Dr. Jenny also testified that it would have taken a great deal of force to

break E.N.’s arm. And, contrary to Jonas’s assertion on appeal, the

State’s expert witness, Dr. Smith, described the mechanisms that usually

cause spiral fractures in an infant’s arm—one of which was “grabbing

[E.N.’s arm] . . . at the elbow and twisting or wrenching.” Considering all

of the evidence in the record, we cannot say the evidence preponderates

heavily against the jury’s verdict finding Jonas guilty of child

endangerment causing serious injury under this count.

Accordingly, we hold the district court did not abuse its discretion

in denying Jonas’s motion for a new trial on count three.

B. Count Six—Failure to Seek Medical Care.

1. Summary of testimony. Jherica’s sister, Shannon, testified that

when Jonas and Jherica dropped E.N. off at her house to have her watch

him for the day on July 2 she noticed a popping on E.N.’s back:

It was just—it almost was like a joint popping, like if you
would kind of pop a knuckle, how that would feel, kind of
popping in and out of place. It was every time he would
 52
exhale—or every time he would take a breath. Every inhale
and exhale it would just go “pop, pop” with that.

Shannon noted that E.N. “seemed to have some discomfort with it.”

Shannon testified she and Joe, Shannon’s cousin who first noticed the

issue, told Jonas and Jherica about the popping before they left for

Jherica’s appointment in Iowa City. Shannon recommended they bring it

to the attention of E.N.’s pediatrician at his next doctor’s appointment,

which Shannon believed was in a couple of days. According to Jherica’s

testimony, that appointment was set for some time after July 8. E.N.

was not seen by any medical professionals after Shannon raised the

issue with Jonas and Jherica on July 2 until he was rushed to the

emergency room on July 8.

Jherica testified at trial that her cousin “Joe said that it felt like it

was a broken rib.” On cross-examination, defense counsel impeached

Jherica with the following statement made in her proffer for her guilty

plea: “He told us there was something wrong, but I didn’t know it was

broken ribs.” To which Jherica responded, “He told us that there was

something wrong and it felt like broken ribs.” Defense counsel then

pointed out that Jherica had affirmatively denied that she was told the

popping was from a broken rib:

Q. When you were asked: Question: “And they say—
Joe says, I have had a broken rib and that baby is in pain.
And when Shannon and Joe”—you interrupt, don’t you?
A. Yes.
Q. What do you say? A. I said, “They did not say this
was what it was while I was there.”

Defense counsel also asked Jherica about a conversation she had with

her mother while she was in jail. Jherica admitted that she had told her

mother that if she had known that E.N.’s rib was broken that she would
have taken him to the hospital. Joe did not testify at trial.
 53

The day after E.N. was at Shannon’s, Jonas and Jherica left E.N.

with Jherica’s mother, Connie. E.N. became so fussy during this visit

that Connie had to return him to his parents at the Neiderbach home.

Connie noted that E.N.’s crying was “[p]retty much constant” and was

not alleviated by feeding him, changing his diaper, or her attempts at

consoling him. While Jonas’s mother, Mary, was watching E.N., after

Connie returned him to the Neiderbach home, she noticed a popping in

E.N.’s back. Connie had alerted her to it when she dropped E.N. off at

her home. Mary testified she did not believe the popping was causing
E.N. any pain and she was unaware E.N.’s ribs were broken at that time.

Jon noticed clicking in E.N.’s back a couple of days later on July 5. He

brought it up to Mary, and they generally agreed that the issue should be

raised at E.N.’s next appointment with his pediatrician, which was

scheduled for later that week.

Dr. Ekhardt, one of the physicians treating E.N. at Blank

Children’s Hospital, admitted that “[t]here is no treatment for broken

ribs”; however, she explained the treating physician “would have given

pain medicine because it is painful . . . and [would] follow him to make

sure it healed well.” Dr. Ekhardt also testified that to her knowledge E.N.

had not suffered a secondary injury from the broken ribs, such as a

punctured lung. Dr. Lindaman testified an infant would show signs of

distress or pain after suffering multiple rib fractures “for the better part

of the day and any other time that those multiple rib fractures were

moved.”

2. Analysis. Jonas claims the verdict as to count six, which

charged Jonas with child endangerment for failing to seek medical care
for E.N.’s broken ribs, is contrary to the weight of the evidence. The jury

instruction for this count required the State to prove the following:
 54
1. On or about between approximately July 2, 2009
and July 8, 2009 the defendant deprived E.N. of health care
by willfully failing to take him for treatment of broken ribs.
2. At that time the defendant was E.N.’s parent.
3. At that time the defendant was reasonably able to
make provisions for E.N.’s health care.
4. The deprivation of such health care caused
substantial harm to E.N.’s physical health.
5. As a result of the deprivation, E.N. suffered a bodily
injury other than the injury for which the health care was
needed.

The jury instructions defined “bodily injury” as “physical pain, illness or

any impairment of physical condition.”

Jonas contends the weight of the evidence fails to establish he

knew or should have known E.N.’s ribs were broken and, thus, needed

medical care. Rather, Jonas argues the evidence merely “showed an

awareness of a ‘popping’ feel in E.N.’s back . . . which his sister-in-law

advised needed to be checked out.” This same popping or clicking was

also noticed by Connie, Jon, and Mary—none of whom believed the issue

required immediate medical attention. Jonas thus argues:

If the grandparents, who collectively have over one hundred
years of experience raising children, did not believe [E.N.]
was ever in need of medical care, then how could Jonas—
who had only been a father for just over a month—possibly
be expected to have known[?]

Yet, Jherica testified at trial that Joe told her and Jonas that he

believed E.N.’s ribs were broken. Although Shannon testified that she

and Joe were less specific on this point, it is not our role to judge the

credibility of witnesses on our appellate review. See Reeves, 670 N.W.2d

at 203. Rather, we only consider “whether the district court’s

determination that the evidence . . . does not ‘preponderate heavily
against the verdict’ [was] a clear and manifest abuse of discretion.” Id.

(quoting Ashworth, 836 F.2d at 266). We cannot say the evidence
 55

preponderated heavily against the conclusion that Jonas knew or should

have known E.N.’s ribs were broken and the baby was in need of medical

attention.

Jonas also argues the weight of the evidence was contrary to the

verdict under this count because there is no treatment for broken ribs

and because there was no evidence that “[a]s a result of the deprivation,

E.N. suffered a bodily injury other than the injury for which the health

care was needed.” Jonas also contends there is no evidence E.N.

suffered “a separate and subsequent serious injury,” and the State failed
to prove “[E.N.] was ever in a state of pain for which [Jonas] either

directly or aided and abetted in denying him medication.”

Significantly, however, Dr. Ekhardt testified that although there is

no treatment for broken ribs, E.N. still should have been brought in to

see a physician so that the healing of his ribs could be monitored and

pain medication could be prescribed. The fact that severe pain from the

untreated rib injuries could have been alleviated by medical intervention

and medication is enough to support a conviction. See State v. McKee,

312 N.W.2d 907, 913 (Iowa 1981) (adopting the Model Penal Code

definition of bodily injury). Connie testified that E.N. was so inconsolable

the night he was with her that she was forced to return him to the

Neiderbach household, even though she tried feeding him and changing

his diaper. A reasonable jury could have inferred from the evidence that

broken ribs caused the baby’s pain.

Considering all of the evidence in the record, we cannot say the

evidence preponderates heavily against the jury’s verdict finding Jonas

guilty of child endangerment for failing to seek medical care for E.N.’s
broken ribs.
 56

Accordingly, we hold the district court did not abuse its discretion

in denying Jonas’s motion for a new trial on count six.

XIII. Sufficiency of the Evidence.

Jonas contends the evidence supporting counts four and five

relating to E.N.’s broken ribs was insufficient. For these challenged

counts, we summarize the evidence presented and analyze whether it

was sufficient to sustain his conviction under each count.

When we review a challenge to the sufficiency of the evidence

supporting a guilty verdict, we consider all of the evidence in the record
“ ‘in [a] light most favorable to the State, including all reasonable

inferences that may be fairly drawn from the evidence.’ ” Sanford, 814

N.W.2d at 615 (quoting State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa

2002)). We uphold the verdict if there is substantial evidence in the

record supporting it. Id. “Evidence is considered substantial if, when

viewed in the light most favorable to the State, it can convince a rational

jury that the defendant is guilty beyond a reasonable doubt.” Id. We

recognize that “ ‘the jury [is] free to reject certain evidence, and credit

other evidence.’ ” Id. (quoting Nitcher, 720 N.W.2d at 556).

Circumstantial evidence is equally as probative as direct evidence. State

v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011). “Evidence is not

substantial if it raises only suspicion, speculation, or conjecture.” Yeo,

659 N.W.2d at 547–48.

A. Summary of Testimony. E.N.’s rib fractures were first

discovered by physicians when the hospital did a bone survey on July 9,

the day after an unresponsive E.N. was rushed to the emergency room.

Dr. Smith testified that E.N.’s bone survey revealed fifteen separate rib
fractures, some on the same rib. Dr. Smith explained his process of

dating rib fractures:
 57
When a bone breaks, like a rib, it takes about seven
days for the knitting of the bone by X-ray to begin [so] that
you can actually see something called callus, which is the
body’s healing attempt at the fracture.
If you have a rib fracture with no callus about it, then
that rib fracture could have happened immediately, or it
could have happened anywhere in the preceding seven days.

Dr. Smith was able to identify three fractures that were “fresh, in that

zero-to-seven range.” The remaining fractures “were in the two- to four-

week range.” He estimated that the oldest rib fractures were about four

weeks old.

Dr. Smith testified that many of the rib fractures were on E.N.’s

back, which he described as important because those are “very hard to

get any other way than severe compression or squeezing.” He noted that

“[i]t is possible to break them with a direct blow, but usually it is hard

squeezing.” He also noted a number of lateral (side) rib fractures. With

regard to these fractures, he explained as follows:

As you recall, a rib is a curved structure. I am holding my
hand in a “C” shape, with the attachment to the spine here
where my right hand is and the attachment to breast bone
where my index finger is (indicating). So if you squeeze
hard, you are going to put maximum stress right where my
thumb joins my index finger. Those are called lateral rib
fractures. That is where they snap.

Dr. Jenny gave similar testimony regarding the cause of E.N.’s rib
fractures:

The multiple rib fractures are consistent with multiple
episodes of having excessive pressure applied to the chest,
squeezing the chest. It is actually hard to break baby ribs
because they are very flexible.
If you punch a baby in the chest, they don’t break.
But if you squeeze real hard—it is kind of like squeezing a
beer can—they break at the sides and the back. When it
squeezes shut, it pops at the sides and pops at the back. It
takes excessive pressure to cause that degree of fractures.
Those fractures are very painful.
 58

During both time periods identified by the State under counts four

and five—June 17 to June 30, 2009, and July 1 to July 8, 2009—E.N.

was alone with a number of different adult caregivers, including Jherica,

Jon, Mary, Shannon, and Connie. Jherica testified Jonas had no

previous experience caring for babies and that he would become

“impatient” when feeding E.N. because of issues with the bottle. When

E.N. would cry, Jonas would pick him up and “kind of accelerate his

voice,” telling E.N. “there is no need to cry,” or to “stop crying.” Jherica

believed this scared E.N. When Jonas was unable to console E.N., he
would get “frustrated” and “would just pass him off to the next person,

whether that [was Jherica] or one of his parents.” Jherica testified that

she never saw Jonas do anything that would have broken E.N.’s ribs.

B. Count Four Analysis—Older Rib Fractures. Jonas argues the

State presented insufficient evidence to sustain his conviction under

count four. The fourth count of the trial information charged Jonas with

child endangerment for causing the older rib fractures. The jury

instruction required the State to prove:

1. On or about between approximately June 17, 2009
and June 30, 2009 the defendant:
a. knowingly acted in a manner that created a
substantial risk to E.N.’s physical health or safety; or
b. by an intentional act or series of intentional acts,
used unreasonable force: (i) that resulted in E.N.
suffering a broken rib or ribs; or (ii) with the specific
intent of causing serious injury to E.N.
2. When he committed the act(s), the defendant was
E.N.’s parent.
3. As a result of the acts, E.N. suffered a serious
injury.

Jonas argues the State failed to present “a scintilla of evidence . . . that
puts Jonas in proximity with E.N. from June 17th to June 30th from
 59

which it can be inferred that Jonas committed an act resulting in broken

ribs.” Jonas relies on Hickman, in which we held “[t]he three separate

acts required under [Iowa Code section 726.6A] should be established

with enough precision to enable a jury to be satisfied beyond a

reasonable doubt of a time and place where each of the three acts

occurred.” 576 N.W.2d at 368. We subsequently clarified that

this rule does not mean that evidence of the precise time and
place of each incident or act is required, but merely means
the three or more acts must be separated by time and place
so that each incident is separate and distinct.

Yeo, 659 N.W.2d at 550. We then noted as follows:

This approach is consistent with the language of the
statute, as well as our general rule that the State is not
required to prove the precise time and place of a crime. It is
also compatible with the very nature of child abuse, and the
inherent difficulty of establishing precise times and places of
abuse to children due to the frequent delay in the discovery
of the abuse, as well as other factors based on the nature of
the crime.
Id. (citations omitted).

Under this standard, we held that the state had presented evidence

sufficient to convict Yeo of each of the four separate counts of child

endangerment. Id. at 551. At trial, the witness testimony had

established Yeo was present each time the child was injured and had

committed acts of abuse that were consistent with the child’s injuries.

Id. at 549, 551; see also State v. Sayles, 662 N.W.2d 1, 3–7 (Iowa 2003)

(holding evidence sufficient because circumstantial evidence established

that child–victim was uninjured immediately before being left in the care

of the defendant); State v. Watkins, 659 N.W.2d 526, 537 (Iowa 2003)

(holding evidence sufficient when state proved the nonaccidental injuries
were inflicted while the child–victim was in the exclusive care of the

defendant).
 60

The State’s evidence in this case, unlike that in Yeo, fails to meet

the sufficiency threshold. A number of people aside from Jonas had

been alone with E.N. during the time frame E.N.’s older rib fractures

occurred, including Jherica; her mother, Connie; and sister, Shannon, as

well as Jonas’s parents, Jon and Mary. The State presented no evidence

establishing Jonas was alone with E.N. when the rib injuries occurred or

that anyone saw Jonas squeeze E.N.

In its brief, the State appears to rely on a propensity argument in

defending the sufficiency of the evidence under this count:

Neiderbach had no patience with [E.N.]’s crying and [E.N.]
was crying, and Neiderbach was alone with him, just before
[E.N.] suffered the two injuries that can be specifically
dated—the broken arm and the brain injury. Rational jurors
could find that it was Neiderbach who squeezed [E.N.] and
broke his ribs between approximately June 17 and June 30.

Normally, however, “evidence of one crime cannot be used to prove

another crime occurred.” State v. White, 668 N.W.2d 850, 853 (Iowa

2003).

The evidence presented by the State at trial does little more than

“raise[] . . . suspicion, speculation, or conjecture” that Jonas broke the

baby’s ribs. Yeo, 659 N.W.2d at 548. We conclude the evidence was

insufficient to support his conviction under count four.

C. Count Five Analysis—Fresh Rib Fractures. Jonas argues the

State presented insufficient evidence to sustain his conviction under

count five. The fifth count charged Jonas with child endangerment for

causing or aiding and abetting another who caused the new rib fractures.

The jury instruction required the State to prove:

1. On or about between approximately July 1, 2009
and July 8, 2009 the defendant:
 61
a. knowingly acted in a manner, or aided and abetted
another in acting in a manner, that created a
substantial risk to E.N.’s physical health or safety; or
b. by an intentional act or series of intentional acts,
used unreasonable force: (i) that resulted in E.N.
suffering a broken rib or ribs; or (ii) with the specific
intent of causing a serious injury to E.N., or aided and
abetted another in doing so.
2. When he committed, or aided and abetted, the
act(s), the defendant was E.N.’s parent.
3. As a result of the acts, E.N. suffered a serious
injury.

As with count four, Jonas’s challenge to his conviction on count

five centers on the first element of the jury instruction. Jonas

specifically argues the State presented insufficient evidence to establish

when E.N.’s fresh rib injuries occurred so as to allow a reasonable jury to

conclude beyond a reasonable doubt that Jonas committed an act

causing those injuries or aided and abetted another to do so.5 We agree.

Although this count differs from the previous count in that Jonas

could be convicted if he either committed the act himself or aided and

abetted the person who did, the evidence was insufficient under either

theory. Several other people were alone with E.N. during this time

period, including Jherica, Jon, Mary, Shannon, and Connie. The State

did not present any evidence, direct or circumstantial, proving Jonas

caused the fresh rib injuries or aided or abetted someone who did.

5Jonas also argues the State failed to prove the fresh rib fractures were caused

by a mechanism other than the one that caused E.N.’s brain injuries. The State
contends Jonas did not preserve this argument for appeal because “Neiderbach did not
complain [at trial] that the acts causing the fresh fractures (Count 5) were not proven to
be separate and distinct from those causing the brain injury (Count 2).” “To preserve
error on a claim of insufficient evidence for appellate review in a criminal case, the
defendant must make a motion for judgment of acquittal at trial that identifies the
specific grounds raised on appeal.” State v. Truesdell, 679 N.W.2d 611, 615 (Iowa
2004). Because we hold the evidence was insufficient under Jonas’s first argument, we
decline to address whether Jonas preserved his second argument for appeal.
 62

Accordingly, we conclude the evidence is insufficient to support his

conviction on count five.

XIV. Conclusion.

We vacate the convictions on counts four and five because the

evidence was insufficient to prove Jonas inflicted E.N.’s rib injuries. We

reverse the order denying Jonas’s motion for an in camera review of

Jherica’s mental health records. We remand the case to allow the

district court to conduct that review pursuant to Iowa Code section

622.10(4)(a)(2) (Supp. 2011) to determine whether her records contain
exculpatory information. We affirm on all other issues. If no exculpatory

evidence is found, Jonas’s convictions on counts one, two, three, and six

are affirmed, and the district court shall resentence Jonas. If

exculpatory evidence is found, then the district court shall proceed as set

forth in section 622.10(4)(a)(2)(c) and (d) to determine whether Jonas is

entitled to a new trial.

AFFIRMED IN PART AND REVERSED IN PART; CASE

REMANDED WITH INSTRUCTIONS.

All justices concur except Cady, C.J., who concurs specially, and

Appel, Wiggins, and Hecht, JJ., who separately concur specially.
 63
#11–1082, State v. Neiderbach

CADY, C.J. (concurring specially).

I concur in the majority opinion, but write separately to express my

view that the statutory standard for judicial review of confidential records

under Iowa Code section 622.10(4) (Supp. 2011) should be given its

definition through the application of facts on a case-by-case basis. As

this case and State v. Thompson, 836 N.W.2d 470, 484 (Iowa 2013),

illustrate, the facts are what should breathe meaning into the

“reasonable probability” standard, and this standard will continue to

gain greater clarity in the future as additional cases continue to give it

shape.
 64
#11–1082, State v. Neiderbach
APPEL, Justice (concurring specially).

For the reasons expressed below, I conclude the judgment of the

district court must be vacated to allow for an in camera inspection of

Jherica Richardson’s mental health records under Iowa Code section

622.10(4) (Supp. 2011). I write separately, however, to express my views

on the important issues raised in this case and in the companion case of

State v. Thompson, 836 N.W.2d 470 (Iowa 2013), also decided today. As

will be demonstrated below, the legal issue in these cases with respect to

the new statute is not whether the legislature’s solution is “better” than

the approach of this court in State v. Cashen, 789 N.W.2d 400, 407–10

(Iowa 2010), but only whether the legislature’s approach is constitutional

on its face. See State v. Mauti, 33 A.3d 1216, 1229 (N.J. 2012) (stating

that where the legislature has enacted a privilege, the court’s “own

conclusions about what would be better policy are simply of no

consequence”); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

___, ___, 132 S. Ct. 2566, 2600, 2608, 183 L. Ed. 2d 450, 464, 499

(2012) (noting it is not the Court’s role to pass upon the wisdom of the

Federal Affordable Care Act’s requirement that individuals pay a tax if
they do not obtain health insurance, but rather only upon its

constitutionality). Although the challenged provisions of the new statute

may be constitutionally problematic in some applications, I conclude the

statute is facially constitutional when interpreted as explained below.

I also write to more thoroughly explore the issue of whether the

photograph and video depicting the medical condition of E.N. were

properly admitted into evidence. I conclude this evidence was properly

admitted. In addition, I write to elaborate on the question of the
admission through expert testimony of hearsay evidence found in
 65

published journal articles. I conclude admission of this evidence was

improper.

I. Issues Surrounding Production of Mental Health Records in
Criminal Cases.

A. Introduction.

1. Positions of the parties. Neiderbach claims the district court

erred in denying his request to review Jherica’s mental health records.

According to Neiderbach, Jherica’s “long stretch of postnatal bizarre

behavior and depression” warranted investigation of her records.

Neiderbach asserts there may be evidence in the records “that would

affect her ability either to perceive events accurately or to credibly testify

in court or [that] may establish motive.” Neiderbach claims the failure to

produce the mental health records violates the Due Process Clauses of

the Iowa and United States Constitutions and his right to effectively

cross-examine witnesses.6

Neiderbach relies upon our holding in Cashen, where we outlined a

protocol related to the production of mental health records in criminal

trials. 789 N.W.2d at 407–10. We required production of mental health

records in a criminal trial when the defendant shows “a reasonable basis

to believe the records are likely to contain exculpatory evidence tending
to create a reasonable doubt as to the defendant’s guilt.” Id. at 408.

Once a defendant made this showing, we required mental health records

6The parties address the issues in this case as involving due process under the
United States and Iowa Constitutions. There is a question whether documents in the
possession of a private party implicate standard due process protections. When mental
health records are in the hands of a private party, courts have applied a due-process-
type analysis under the Confrontation Clauses of State and Federal Constitutions. See,
e.g., Burns v. Delaware, 968 A.2d 1012, 1024–25 (Del. 2009); State v. Kelly, 554 A.2d
632, 635–36 (R.I. 1989). I regard Neiderbach’s argument that the district court ruling
violated his right to effectively cross-examine witnesses as raising a claim under the
Confrontation Clause of the Sixth Amendment to the United States Constitution and
article I, section 10 of the Iowa Constitution.
 66

to be produced under a protective order designed to safeguard the

confidentiality of the records. Id. at 408–09. We rejected in camera

inspection of the records, explaining that the court “cannot foresee what

may or may not be important to the defendant.” Id. at 409.

Neiderbach recognizes that after our decision in Cashen, the

legislature amended Iowa Code section 622.10 by adding a new

subsection. See 2011 Iowa Acts ch. 8, § 2 (codified at Iowa Code

§ 622.10(4) (Supp. 2011)). Among other things, the new subsection

provides that before discovery of mental health records the defense must
show “a reasonable probability that the information sought is likely to

contain exculpatory information.” Iowa Code § 622.10(4)(a)(2)(a).

Second, the new subsection provides that a defendant seeking

production of mental health records must show the information “is not

available from any other source.” Id. Once the defendant has shown “a

reasonable probability that the privileged records sought may likely

contain exculpatory information that is not available from any other

source,” the court must conduct an in camera inspection of the

documents to determine whether the records contain exculpatory

information. Id. § 622.10(4)(a)(2)(b). Neiderbach attacks each of these

provisions as a violation of the Cashen principles and his rights to due

process and confrontation under the Iowa and Federal Constitutions.

Neiderbach further claims the district court improperly applied

section 622.10(4)(a)(2)(a) to the facts of this case. Neiderbach notes that,

among other things, he presented evidence to the district court that

Jherica smoked marijuana during her pregnancy, that she had

demonstrated a pattern of dishonest conduct, that she admitted
frustration while taking care of her newborn son, that she flashed her

breasts two days after her son’s traumatic brain injury, that she
 67

threatened to starve herself to get out of jail, and that she called a

funeral home to report that her son had died and inquire about services

and prices even though he was alive. Neiderbach argues the district

court’s conclusion that this evidence did not meet the statutory

threshold for production of mental health records was contrary to

Anfinson v. State, 758 N.W.2d 496, 505–06 (Iowa 2008), where we found

there was a possible nexus between postpartum depression and

infanticide. Neiderbach also cites cases noting a witness’s mental

condition at the time of events about which he or she testifies can impact
credibility. See East v. Scott, 55 F.3d 996, 1003 (5th Cir. 1995) (noting

mental health records can cast doubt on the accuracy of a witness’s

testimony); United States v. Lindstrom, 698 F.2d 1154, 1160 (11th Cir.

1983) (“Certain forms of mental disorder have high probative value on

the issue of credibility.”).

The State responds by attacking the Cashen protocol, arguing it

improperly balances a “defendant’s statutory or rule-based interest in

discovery” with a “patient’s qualified constitutional right to privacy in

mental health records.” In any event, the State further asserts the

challenged provisions of section 622.10(4)(a)(2) are constitutional.7

According to the State, Neiderbach failed to show a reasonable

probability that the mental health records sought were likely to contain

exculpatory information and, instead, showed only a possibility that the

records might contain exculpatory information. In addition, the State

7Niederbach’s constitutional challenge is limited to the threshold requirement for

production, the role of evidence “available from any other source,” and the in camera
review of mental health records under sections 622.10(4)(a)(2)(a) and 622.10(4)(a)(2)(b).
This case does not involve a facial or as-applied constitutional challenge to section
622.10(4)(a)(2)(c), which requires the district court to balance the need for disclosure
against the privacy interest if the records contain exculpatory evidence. I express no
view on any issue that might arise under section 622.10(4)(a)(2)(c).
 68

contends Neiderbach failed to show the information sought was

unavailable from other sources. Finally, the State asserts that to the

extent Neiderbach has met his burden on the question of production of

mental health records, the in camera inspection provision of section

622.10(a)(2)(b) is constitutional under Pennsylvania v. Ritchie, 480 U.S.

39, 57–58, 107 S. Ct. 989, 1001–02, 94 L. Ed. 2d 40, 57–58 (1987), and

because a defendant will have to identify the information sought with

reasonable specificity, enabling the district court to better find potentially

exculpatory evidence.
2. Evidentiary privilege and the right of a criminal defendant to

“every man’s evidence.” As was noted by the Supreme Judicial Court of

Massachusetts, “when relevant evidence is excluded from the trial

process for some purpose other than enhancing the truth-seeking

function, the danger of convicting an innocent defendant increases.”

Commonwealth v. Bishop, 617 N.E.2d 990, 994 (Mass. 1993), abrogated

on other grounds by Commonwealth v. Dwyer, 859 N.E.2d 400, 414

(Mass. 2006). In a similar vein, the United States Supreme Court has

said that “disclosure, rather than suppression, of relevant materials

ordinarily promotes the proper administration of criminal justice.”

Dennis v. United States, 384 U.S. 855, 870, 86 S. Ct. 1840, 1849, 16 L.

Ed. 2d 973, 984 (1966). Thus, while the issues surrounding the

production of mental health records in this case may appear merely

procedural on the surface, they are actually much more important than

that. As Justice Frankfurter observed, “The history of American freedom

is, in no small measure, the history of procedure.” Malinski v. New York,

324 U.S. 401, 414, 65 S. Ct. 781, 787, 89 L. Ed. 1029, 1037 (1945).
In this case, we must determine whether our procedures related to

the production of mental health records in a criminal case will
 69

adequately and reliably allow a defendant access to probative information

that could bear on his possible conviction and subsequent long term of

incarceration. The suppression of important evidence bearing on the

truth or the innocence of a defendant in a criminal trial and the refusal

to look for available exculpatory evidence in the name of furthering other

social goals raise serious questions regarding the rights to due process

and confrontation, to say the least, and in their extreme forms, represent

the underpinning of show trials and the criminal justice systems of

totalitarian regimes. On the other hand, unnecessary disclosure of
mental health records is inconsistent with the legislative policy behind

privilege statutes and our recognition of the privacy interests of mental

health patients. See McMaster v. Iowa Bd. of Psychology Exam’rs, 509

N.W.2d 754, 758–59 (Iowa 1993).

Looking broadly at modern legal developments, the arc of the

caselaw seeks to ensure a defendant has access to evidence sufficient to

provide a fair trial. See, e.g., Ritchie, 480 U.S. at 57–58, 107 S. Ct. at

1001–02, 94 L. Ed. 2d at 57–58 (holding due process requires that a

statutory privilege give way to in camera inspection of exculpatory

evidence); Davis v. Alaska, 415 U.S. 308, 318–20, 94 S. Ct. 1105, 1111–

12, 39 L. Ed. 2d 347, 354–56 (1974) (holding juvenile records made

confidential by statute admissible to show witness bias); Chambers v.

Mississippi, 410 U.S. 284, 298–302, 93 S. Ct. 1038, 1047–49, 35 L. Ed.

2d 297, 310–13 (1973) (holding a defendant’s right to present witnesses

in his own defense permitted the defendant to present hearsay testimony

under the exception for declarations against a declarant’s penal interest

notwithstanding Mississippi’s failure to recognize such an exception);
Washington v. Texas, 388 U.S. 14, 16–17, 22, 87 S. Ct. 1920, 1922,

1925, 18 L. Ed. 2d 1019, 1021–22, 1025 (1967) (holding a criminal
 70

defendant’s right to have compulsory process for obtaining witnesses in

his defense trumped a state statute prohibiting persons charged or

convicted as coparticipants in the same crime from testifying on each

other’s behalf even if they would have given relevant and material

testimony).

3. Importance of the doctrine of constitutional avoidance to the

interpretation of legislative acts. As noted, the legislature codified a

protocol for the production of mental health records in response to our

Cashen decision. The new statute seeks to modify the Cashen protocol
in several key respects, including substituting in camera inspection of

documents for production of documents to the parties under the control

of protective orders.

Legislative enactments are entitled to great respect and may be

held constitutional even if the court disagrees with the policy choices of

the legislature. At the same time, however, the legislature cannot deprive

a criminal defendant of his or her constitutionally protected right to due

process. Under one principle of constitutional avoidance, we seek to

interpret a legislative enactment in a fashion that avoids constitutional

problems. Simmons v. State Pub. Defender, 791 N.W.2d 69, 74 (Iowa

2010); State v. Nail, 743 N.W.2d 535, 539–40 (Iowa 2007); State v.

Wiedrien, 709 N.W.2d 538, 542 (Iowa 2006); State v. Kueny, 215 N.W.2d

215, 216–17 (Iowa 1974); see also Ashwander v. Tenn. Valley Auth., 297

U.S. 288, 348, 56 S. Ct. 466, 483, 80 L. Ed. 688, 712 (1936) (Brandeis,

J., concurring) (“ ‘When the validity of an act of the Congress is drawn in

question, and even if a serious doubt of constitutionality is raised, it is a

cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may

be avoided.’ ” (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285,
 71

296, 76 L. Ed. 598, 619 (1932))). This principle is an important feature

of the judicial review landscape. Several state courts have applied it to

uphold statutes dealing with counseling privileges. See, e.g., People v.

Stanaway, 521 N.W.2d 557, 574–75 (Mich. 1994); Commonwealth v.

Ritchie, 502 A.2d 148, 151–54 (Pa. 1985), rev’d on other grounds by

Ritchie, 480 U.S. at 60–61, 107 S. Ct. at 1003, 94 L. Ed. 2d at 59–60. A

corollary to the doctrine of constitutional avoidance is the notion that

statutes should not be lightly found facially unconstitutional. In order to

be unconstitutional on its face, a statute must be “ ‘void for every
purpose and cannot be constitutionally applied to any set of facts.’ ” War

Eagle Vill. Apartments v. Plummer, 775 N.W.2d 714, 722 (Iowa 2009)

(quoting F.K. v. Iowa Dist. Ct., 630 N.W.2d 801, 805 (Iowa 2001)). As

explained below, application of the doctrine of constitutional avoidance

requires us to find the challenged provisions of section 622.10 facially

constitutional.

B. Reasonable Probability That the Privileged Records Sought

May Likely Contain Exculpatory Information. The first issue is the

facial constitutionality of the showing necessary before production of

mental health records is required under the new statute—namely, that

the requesting party show “a reasonable probability that the privileged

records sought may likely contain exculpatory information.” Iowa Code

§ 622.10(4)(a)(2)(b); see also id. § 622.10(4)(a)(2)(a).

At the outset, it is critical to distinguish between the appropriate

test for production and the appropriate test for disclosure of the records.

See, e.g., Bishop, 617 N.E.2d at 996–98; Goldsmith v. State, 651 A.2d

866, 877 (Md. 1995); Stanaway, 521 N.W.2d at 575; State v. Green, 646
N.W.2d 298, 309 (Wis. 2002). The test for production performs a

threshold function that opens the door to simply examining the records
 72

to see if they in fact contain evidence relevant and material to the

defense. The test for disclosure is applied only after the records have

been examined and found to contain material and relevant evidence.

Any factual or legal questions surrounding the issue of whether

documents provided for in camera inspection must be disclosed to the

defendant are not now before the court and are not addressed or

determined in this case. We deal here with only the threshold test

pertaining to the production of documents.

With respect to the threshold function, there appears to be a broad
consensus that the mere existence of mental health records is not

enough to impose a constitutional requirement that they be produced in

any criminal case. See, e.g., D.P. v. State, 850 So. 2d 370, 374 (Ala.

Crim. App. 2002) (holding that “when a defendant sufficiently alleges

that privileged documents may contain evidence relevant and material to

an issue in the case, the trial court should inspect the documents in

camera before ruling on the defendant’s motion”); People v. Dist. Ct., 719

P.2d 722, 726 (Colo. 1986) (“The vague assertion that the victim may

have made statements to her therapist that might possibly differ from the

victim’s anticipated trial testimony does not provide a sufficient basis to

justify ignoring the victim’s right to rely upon her statutory privilege.”);

People v. Foggy, 521 N.E.2d 86, 91–92 (Ill. 1988) (rejecting a defendant’s

general request for an in camera inspection of counseling records

because the request did not indicate the records “would provide a source

of impeachment”); Bishop, 617 N.E.2d at 994–95 (noting a defendant

may not have access to a victim’s privileged records in all

circumstances). These cases are grounded in the notion that privacy
interests—even to the minimal extent invaded by in camera inspection by

a judge—should not be sacrificed unnecessarily on overly speculative
 73

showings.8 Yet, because a defendant’s liberty interests are at stake in a

criminal trial, the standard for production cannot be too high. As noted

in Bishop, “when relevant evidence is excluded . . . for some purpose

other than enhancing the truth-seeking function, the danger of

convicting an innocent defendant increases.” 617 N.E.2d at 994.

Further, as noted in Ritchie, it is impossible to say with assurance

that medical records will contain relevant information when no side has

seen the records. 480 U.S. at 57, 107 S. Ct. at 1001, 94 L. Ed. 2d at 57.

To require a defendant to describe with particularity the relevance of
information in documents he has never seen is something of a catch-22.9

State v. Bassine, 71 P.3d 72, 76 n.9 (Or. Ct. App. 2003); accord Foggy,

521 N.E.2d at 96 (Simon, J., dissenting) (describing a requirement that

the defendant demonstrate knowledge of the contents of a mental health

record that the defendant does not have as “a perfect Catch-22”); State v.

Graham, 702 A.2d 322, 326 (N.H. 1997) (noting a requirement that the

defendant articulate the “ ‘precise nature’ of the purported contents of

the records . . . would effectively render review superfluous, as the

defendant essentially would have to obtain the information itself in order

to meet his burden”); State v. Gagne, 612 A.2d 899, 901 (N.H. 1992)

8I resist the sporting analogy to “fishing” that many courts cannot resist. The
metaphor, like all metaphors, is entertaining but often merely used to state a
conclusion rather than to provide any meaningful analysis. In fact, because the mental
health records are not available to the defense at the time of the effort to obtain their
production, there is always an element of “fishing” in the request. The fish is in the
lake, not the boat, even when the most compelling request is made. It might be more
accurate to state that fishing with a baitless hook won’t do. In any event, I think it
better to leave fishing to the people who fish and for courts to employ legal analyses
rather than catchy phrases to determine the outcome of a case.
9“Catch-22” is a phrase utilized by novelist Joseph Heller to describe “a
problematic situation for which the only solution is denied by a circumstance inherent
in the problem or by a rule.” Merriam–Webster’s Collegiate Dictionary 194 (11th ed.
2003).
 74

(noting trial courts, in determining whether an in camera review is

warranted, “cannot realistically expect defendants to articulate the

precise nature of the confidential records without having prior access to

them”).

The Iowa statute provides that a party must in good faith show a

“reasonable probability” that production of the mental health records

“may likely” produce exculpatory evidence. Iowa Code

§ 622.10(4)(a)(2)(b); see also id. § 622.10(4)(a)(2)(a). The phrase

“reasonable probability” has been used in a number of other statutes and
by a number of other courts in the context of establishing a threshold

requirement for the production of mental health records. See, e.g., State

v. Pinder, 678 So. 2d 410, 417 (Fla. 1996) (“To obtain in camera review of

confidential communications or records . . . a defendant must first

establish a reasonable probability that the privileged matters contain

material information necessary to his defense.”); Commonwealth v. Fuller,

667 N.E.2d 847, 855 (Mass. 1996) (“A judge should undertake an in

camera review of [privileged records] only when a defendant’s motion for

production of the records has demonstrated a good faith, specific, and

reasonable basis for believing that the records will contain exculpatory

evidence which is relevant and material to the issue of the defendant’s

guilt.”), abrogated by Dwyer, 859 N.E.2d at 414; see also Stanaway, 521

N.W.2d at 574 (permitting in camera inspection upon “a showing that the

defendant has a good-faith belief, grounded on some demonstrable fact,

that there is a reasonable probability that the records are likely to

contain material information necessary to the defense”). As

commentators have explained, terms such as “reasonable probability” in
mental health records statutes are extremely elastic and subject to

judicial interpretation. See Clifford S. Fishman, Defense Access to a
 75

Prosecution Witness’s Psychotherapy or Counseling Records, 86 Or.

L. Rev. 1, 40 (2007) [hereinafter Fishman]. As noted by one court, a

reasonable probability “lies somewhere between ‘mere possibility’ and

‘more likely than not.’ ” State v. Blake, 63 P.3d 56, 61 (Utah 2002)

(quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)).

To adequately protect a criminal defendant’s rights to due process

and confrontation, the statute must be interpreted in a fashion that

provides adequate opportunity for a party to uncover evidence relevant to

actual guilt or innocence in a criminal proceeding. Cf. California v.
Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413,

419 (1984) (noting that due process requires “that criminal defendants

be afforded a meaningful opportunity to present a complete defense,”

which includes access to exculpatory evidence). As a result, while the

term “reasonable probability” in the statute requires a showing more

than the mere fact that mental health records of a witness or accuser

exist, all that is required is some plausible theory founded in

demonstrable fact that suggests the information in the mental health

records might well prove helpful to the defense. As noted by the New

Hampshire Supreme Court:

The threshold showing necessary to trigger an in camera
review is not unduly high. The defendant must meaningfully
articulate how the information sought is relevant and
material to his defense. To do so, he must present a
plausible theory of relevance and materiality sufficient to
justify review of the protected documents, but he is not
required to prove that his theory is true. At a minimum, a
defendant must present some specific concern, based on
more than bare conjecture, that, in reasonable probability,
will be explained by the information sought.

State v. Hoag, 749 A.2d 331, 333 (N.H. 2000) (quoting Graham, 702 A.2d
at 325–26). Other state courts agree with this approach. See Burns v.

State, 968 A.2d 1012, 1025 (Del. 2009) (holding “a defendant need only
 76

make a ‘plausible showing’ that the records sought are material and

relevant”); Green, 646 N.W.2d at 310 (noting the Wisconsin standard for

production “is not intended . . . to be unduly high for the defendant”). At

least one court, however, has concluded that because of the nature of the

crime and the importance of potential impeachment, a defendant

charged with sexual abuse of a minor is constitutionally entitled to an in

camera inspection of records to determine whether the records contain

exculpatory information. State v. McGill, 539 S.E.2d 351, 355 (N.C. Ct.

App. 2000).
The plausible theory of relevance standard is consistent with the

United States Supreme Court’s approach in United States v. Valenzuela-

Bernal, 458 U.S. 858, 871–74, 102 S. Ct. 3440, 3448–49, 73 L. Ed. 2d

1193, 1205–07 (1982), where the Court held a defendant could not show

the government violated his rights to due process and compulsory

process by deporting alien witnesses absent some “plausible showing

that the testimony of the deported witnesses would have been material

and favorable to his defense.” See also Washington, 388 U.S. at 23, 87 S.

Ct. at 1925, 18 L. Ed. 2d at 1025 (holding a state cannot arbitrarily

prohibit a defendant from exercising his Sixth Amendment right to

compulsory process when the evidence is relevant and material to his

defense). When in doubt, the district court should tip the balance

toward production of mental health records to preserve the criminal

defendant’s constitutional rights to due process and confrontation.10

10Courts have ordered production in camera under statutes similar to Iowa’s in a
wide variety of settings. See, e.g., State v. Gagne, 612 A.2d 899, 900–02 (N.H. 1992)
(holding the defendant made a plausible showing that he was entitled to privileged
records where, among other things, he asserted the records might reveal a victim’s prior
inconsistent statements and the extent to which state counselors may have participated
in preparing the victims for trial); In re L.J.P., 637 A.2d 532, 538 (N.J. Super. Ct. App.
Div. 1994) (holding the defendant’s showing that records might indicate the victim
 77

To avoid constitutional problems under the United States and Iowa

Constitutions, the phrase “reasonable probability” in section

622.10(4)(a)(2) should be construed to require only a plausible showing

that exculpatory evidence may likely be uncovered when the records are

produced. Based upon the above interpretation, section 622.10(4)(a)(2)’s

reasonable probability threshold meets constitutional muster under the

Due Process and Confrontation Clauses of the United States and Iowa

Constitutions.

C. Information That Is Not Available From Any Other Source.
The next issue is the facial constitutional challenge to the provision of

the new statute regarding other sources of information. Iowa Code

section 622.10(4)(a)(2)(a) indicates production need not occur unless the

evidence “is not available from any other source.” Not all evidence,

however, is equal. And not all evidence saying the same thing has equal
________________________________
recanted her allegations was sufficient to require production); People v. McCray, 958
N.Y.S.2d 511, 518 (App. Div. 2013) (holding production was appropriate where the
victim had a history of mental illness, had been the victim of sexual abuse on three
prior occasions, and had attempted suicide during the three months preceding trial);
State v. Shiffra, 499 N.W.2d 719, 724 (Wis. Ct. App. 1993) (holding production was
required where a witness’s “psychiatric difficulties might affect both her ability to
accurately perceive events and her ability to relate the truth”), abrogated on other
grounds by State v. Green, 646 N.W.2d 298, 309–10 (Wis. 2002) (heightening slightly
Shiffra’s threshold requirement from a showing that records “may be necessary to a
determination of guilt or innocence” to a good faith showing of “a specific factual basis
demonstrating a reasonable likelihood that the records contain relevant information
necessary to a determination of guilt or innocence and is not merely cumulative to other
evidence available to the defendant”); see also State v. Middlebrooks, 840 S.W.2d 317,
333 (Tenn. 1992) (holding that the defendant made a plausible case that records from a
psychiatric hospital might be relevant in determining the veracity of a witness’s
testimony because the records “pertained to the mental instability of a witness that
existed within a reasonable time before the testimony was given,” but that the district
court’s error in denying production was harmless in light of the appellate court’s review
of the records), superseded by statute on other grounds, Tenn. Code § 39–13–204(i)(7)
(Supp. 1995), as recognized in State v. Stout, No. 02C01–9812–CR–00376, 2000 WL
202226, at *27 (Tenn. Crim. App. Feb. 17, 2000). Once again, however, it must be
stressed that these cases involve the production of documents for in camera inspection
and not disclosure of the documents to the defense.
 78

persuasive power. Thus, when we consider whether information is

available from “any other source,” particularly in light of the due process

concerns present in a criminal defense, we must consider both the

content and persuasive power of the evidence. See Stanaway, 521

N.W.2d at 577 n.44 (rejecting the notion that evidence is unnecessary

because it is cumulative and explaining that cumulative evidence

contained in counseling files may be quite probative); Utah v. Worthen,

177 P.3d 664, 673 (Utah 2008) (rejecting the belief that cumulative

nature of information in mental health record deprives the record of its
independent probative value); State v. Shiffra, 499 N.W.2d 719, 724 (Wis.

Ct. App. 1993) (noting the probability that the quality and probative

value of the information in mental health records “may be better than

anything that can be gleaned from other sources”), abrogated on other

grounds by Green, 646 N.W.2d at 309–10.

In considering content and persuasive power, medical or mental

health records occupy a special place in the evidentiary pantheon and

are generally superior to the recalled memory of an interested witness for

multiple reasons. First, jurors tend to believe that which is written over

that which is spoken. Richard H. Underwood, Logic and the Common

Law Trial, 18 Am. J. Trial Advoc. 151, 194 (1996) (citing Irving Younger,

The Art of Cross-Examination 25 (1976)). Second, the mental health

records are contemporaneously generated. See Jencks v. United States,

353 U.S. 657, 667, 77 S. Ct. 1007, 1013, 1 L. Ed. 2d 1103, 1111 (1957)

(“Every experienced trial judge and trial lawyer knows the value for

impeaching purposes of statements of the witness recording the events

before time dulls treacherous memory.”). Third, the medical records
themselves are usually generated by trained observers who are unbiased

regarding the issues in litigation. Ark. Blue Cross-Blue Shield, Inc. v.
 79

Tompkins, 507 S.W.2d 509, 512 (Ark. 1974) (citing expert testimony that

“it is traditional in medicine that the medical record is the key to what is

happening to the patient and that great stock is placed in that record as

truly and clearly reflecting what happens to the patient as to the care

being given”). Fourth, medical records frequently contain information

unknown to the patient, including detailed diagnoses, comments

regarding causation, and observations regarding a patient’s appearance

and demeanor, which may be relevant in a given case. See, e.g., Prymer

v. Astrue, No. 10 C 50311, 2012 WL 3988331, at *5 (N.D. Ill. Sept. 10,
2012) (unpublished opinion) (noting the record indicates a claimant for

supplemental security income benefits and disability insurance benefits

was cognitively intact upon examination following a motor vehicle

accident); Hambrick v. Astrue, No. 09–CV–689–PJC, 2011 WL 651408, at

*1 (N.D. Okla. Feb. 11, 2011) (unpublished opinion) (indicating the

patient testified he did not remember sniffing paint, which was an

incident noted in his medical records).

Any lawyer with practical experience with medical or mental health

issues would recognize that a deposition of a patient or a witness is not

the equivalent of a review of that person’s medical or mental health

records. The caselaw recognizes this as well. See State v. Peseti, 65 P.3d

119, 129–30 (Haw. 2003) (noting animosity may undermine a witness’s

credibility, and therefore, the exclusion of statements made to a

counselor was not harmless error); In re L.J.P., 637 A.2d 532, 537–38

(N.J. Super. Ct. App. Div. 1994) (noting a complaining party’s recantation

to a state agency’s psychologist was more credible than recantations

made to family members, which may have been coerced); Shiffra, 499
N.W.2d at 724 (“It is also quite probable that the quality and probative

value of the information in the [mental health treatment] reports may be
 80

better than anything that can be gleaned from other sources.”); see also

Fishman, 86 Or. L. Rev. at 50 (calling the requirement that comparable

evidence be unavailable from other less intrusive sources “entirely

appropriate,” but reminding courts to determine whether the “evidence

available from less intrusive sources has persuasive power comparable to

that in the privileged material”). While it is possible that, in some cases,

the specific evidence in a medical record may well provide no additional

useful information for the defense, see State v. Middlebrooks, 840 S.W.2d

317, 333 (Tenn. 1992) (holding the district court’s refusal to order
production of privileged records was harmless because the records “had

little relevance to [the witness’s] credibility or the probative value of his

testimony”), superseded by statute on other grounds, Tenn. Code § 39–

13–204(i)(7) (Supp. 1995), as recognized in State v. Stout, No. 02C01–

9812–CR–00376, 2000 WL 202226, at *27 (Tenn. Crim. App. Feb. 17,

2000), in many cases the records will not be useless and will offer

evidence of a different content or persuasive quality.

Importantly, however, to the extent evidence might be available to

some degree from another source, the decision of whether the other

source is comparable to the medical or mental health record simply

cannot be made with confidence until the record has been produced and

a comparison made between the quality and persuasive power of the

record and the other source. With any other approach, the trial court

would be conducting a blind and irrational comparison. To use an

algebra analogy, one cannot state that X equals Y without knowing

something about both X and Y. As stated in the context of executive

privilege but applicable here as well: “[A] trial judge cannot accurately
evaluate the litigant’s showing of necessity without knowing something of

the content of the information sought. There is no judicial algebra by
 81

which a court can determine how badly a litigant needs ‘X.’ ” Paul

Hardin, III, Executive Privilege in the Federal Courts, 71 Yale L.J. 879,

893–94 (1962) (footnote omitted); accord Stanaway, 521 N.W.2d at 588

(Boyle, J., concurring). Thus, whether information is not available from

any other source cannot ordinarily be determined without production of

the mental health records themselves. As a result, all that may be

required at the threshold stage is a plausible reason to believe the

information—considering its quality and persuasive power—is not

available from other sources.
Based on the above analysis and resulting interpretation, I

conclude the “information that is not available from any other source”

language in section 622.10(4)(a)(2)(a) is not facially unconstitutional

under the Due Process and Confrontation Clauses of the United States

and Iowa Constitutions.

D. In Camera Inspection.

1. Introduction. The next, and most difficult, issue is the facial

constitutionality of the in camera inspection of documents that meet the

threshold requirements under the statute. See Iowa Code

§ 622.10(4)(a)(2)(b). At first blush, it may seem that in camera inspection

by the district court is entirely adequate to satisfy the demands of the

due process and confrontation provisions. District court judges are

conscientious, they know the law, and they can be expected to apply the

law in a dispassionate manner. We trust our judges. We leave the

messy fact-bound issues to the sound discretion of the district court.

End of story, next case.

But if one looks under the hood of in camera inspection, one finds
potential difficulties. The difficulties arise from the lack of focus on the

issues the district court is required to consider, the limited perspective of
 82

the district court in considering the relevance of records, the substantial

practical problems associated with the in camera inspection and

evaluation of mental health records, and the difficulty of preserving

meaningful appellate review of district court decisions.

One thing is for sure, however—an uninformed in camera

inspection of mental health records will not comport with due process.

In other words, the district court must, in some fashion, have at its

disposal the tools necessary to conduct a meaningful review and its

review must be thorough. Due process does not tolerate shortcuts or
guesswork in the production of evidence that may have a bearing on the

guilt or innocence of the accused. Further, if in camera inspection is to

pass constitutional muster, it will be more time-consuming and, as

explained below, will likely to result in more continuances, mistrials, and

even reversible error than would result from direct production of records

to the parties under court supervision.

2. Challenges posed by in camera inspection.

a. Conflicting roles. In camera inspection requires that the district

court assume uncomfortable roles. First, the court must view the mental

health records from the perspective of the defense (who has not seen

them) to determine if they contain potentially exculpatory evidence. This

may be difficult to do. The judge is not simply evaluating arguments, but

is also required to anticipate arguments that might be made by defense

counsel. As noted by the Supreme Court in Dennis, “[i]n our adversary

system, it is enough for judges to judge. The determination of what may

be useful to the defense can properly and effectively be made only by an

advocate.” 384 U.S. at 875, 86 S. Ct. at 1851, 16 L. Ed. 2d at 986; see
also Zaal v. State, 602 A.2d 1247, 1263 (Md. 1992) (citing the value of

review by counsel with an advocate’s eye).
 83

Second, with the records in hand, the district court now, in

addition to being placed in the position of an advocate, simultaneously

becomes an arm of the state. The obligation of the state to disclose

exculpatory material, of course, does not depend on the presence of a

specific request by the defendant. Kyles v. Whitley, 514 U.S. 419, 433,

115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490, 505 (1995); see also United

States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d

481, 494 (1984) (opinion of Blackmun, J.); id. at 685, 105 S. Ct. at 3385,

87 L. Ed. 2d at 496 (White, J., concurring in part and concurring in
judgment); accord State v. Anderson, 410 N.W.2d 231, 234 (Iowa 1987).

Thus, it is possible that the court is under an obligation to review the file

and disclose any exculpatory information even if not requested by the

defense. See Ritchie, 480 U.S. at 58 n.15, 107 S. Ct. at 1002 n.15, 94 L.

Ed. 2d at 58 n.15.11

b. Limited information base and lack of focus. A district court

conducting in camera inspection will necessarily have a limited

information base in considering evidentiary matters without briefs from

the parties to focus its attention. With respect to evidentiary questions,

the law generally gives great emphasis to particularity and focus. The

failure to make the right objection, for instance, leads to waiver. We are

usually pretty persnickety about this. Evidentiary issues are generally

tightly focused on particular pieces of evidence a party seeks to offer.

11Suppose the defendant makes a plausible case that a witness has a mental

illness that affects his ability to perceive events and that, as a result, the mental health
records must be produced for in camera inspection. Upon inspection, the district court
finds nothing in the mental health records related to the ability of the witness to
perceive events, but finds powerful admissions tending to show the defendant did not
commit the crime. Such admissions are clearly highly exculpatory, but outside the
narrow confines of the request of the defendant. What does the judge do at this stage?
Ignore the exculpatory evidence?
 84

In cases under section 622.10(4), however, the defense will not

know what is in the records. As a result, sharply focused briefing will be

impossible. See, e.g., Gagne, 612 A.2d at 901. Further, the district

court will not have access to the defense’s investigative file and may not

be privy to potential strategies available that might be affected by or

contingent upon information uncovered in mental health records. As

noted in Dwyer,

Despite their best intentions and dedication, trial judges
examining records before a trial lack complete information
about the facts of a case or a defense to an indictment, and
are all too often unable to recognize the significance, or
insignificance, of a particular document to a defense.

859 N.E.2d at 418.

The lack-of-focus problem is exacerbated by timing issues. The

defense will often seek mental health records as part of pretrial efforts.

Timely disclosure may be critical to the development of trial strategy.

See People v. Hammon, 938 P.2d 986, 994 (Cal. 1997) (Mosk, J.,

concurring) (noting a defendant often requires advance preparation for

the cross-examination of an adverse witness and that “to defend himself

meaningfully, he must usually seek out the truth immediately: He cannot

wait until the cause is called to trial”). As indicated above, the defendant
must make some kind of showing of need for the records, but because

the defendant has not seen the records, the defendant’s motion will lack

the concreteness ordinarily associated with other evidentiary issues. In

short, the issues will be “uncrystalized.” Bishop, 617 N.E.2d at 995.

As a result, review by the district court of mental health records

will necessarily be less concrete and at a greater level of abstraction than

if the records were available under an appropriate pretrial protective
order for review by defense counsel, who would necessarily be better
 85

informed about the factual and legal issues in the case. The lack of

concreteness is a problem solely for the defense. As noted by the

Supreme Judicial Court of Massachusetts, the lack of concreteness could

lead to both overproduction and underproduction of mental health

records. Dwyer, 859 N.E.2d at 418.

c. Practical difficulties limiting an informed review—volume and lack

of expertise. The district court may also face practical obstacles in

conducting the meaningful review required to comport with due process.

The mental health records may be quite voluminous. If so, sensible
organization of the material is critical for appropriate review. References

abound with instructions for lawyers regarding optimal organization.

However, the district court, with its limited resources, may not be in a

good position to accomplish preliminary organizational tasks. Further,

aside from the voluminous nature of the records, the district court must

understand the information they contain. As noted by one authority,

“the records may not be arranged in a uniform fashion, abbreviations

abound, handwritten comments are often illegible, and procedures will

be listed by diagnostic codes.” See Samuel D. Hodge, Jr., Unraveling the

Mystery of Medical Records, 52 Prac. Law. 45, 46 (2006).

People v. McCray, 958 N.Y.S.2d 511 (App. Div. 2013), provides an

example of these potential difficulties. In McCray, the trial court had

inspected thousands of pages of the victim’s mental health records to

determine what should be disclosed to the defense. Id. at 519.

Eventually, the trial court selected twenty-eight pages that it found

“pertinent to the case” to disclose to the defense. Id. at 518; id. at 523

(McCarthy, J., dissenting). The dissenting opinion indicates that,
following a thorough review of the documents in the calm setting of

appellate chambers, many more documents arguably should have been
 86

disclosed. Id. at 523. A bare majority of the five-member appellate court

agreed the dissent had unearthed additional documents “relevant to the

victim’s competence to testify,” such as references to the victim’s “short-

term memory loss,” but nonetheless found the district court had not

“failed in its diligent efforts to cull through thousands of pages of mental

health records to balance the victim’s rights against defendant’s rights

such as would constitute an abuse of discretion.” Id. at 518–19 (majority

opinion). In any event, McCray poignantly illustrates the problems

associated with burdensome review of voluminous documents by busy
trial courts, often in the midst of trial, and subsequent appellate review.

If the district court is to conduct an informed in camera inspection

that comports with due process, the district court must get to the bottom

of what is actually in the mental health records. A blind review is no

review. The district court may be required to arm itself with a medical

dictionary, the latest Diagnostic and Statistical Manual of Mental

Disorders (DSM), and pharmacology references in order to understand

the import of the records. The district court may be required, for

instance, to understand the significance of a diagnosis or the impact of

prescription drugs on memory, perception, and recall. Even so armed, a

district court may not be in a very good position to evaluate mental

health records with respect to sophisticated issues such as

“suggestibility, undue influence, memory contamination, or source

monitoring.” 2 Terence W. Campbell & Demosthenes Lorandos, Cross

Examining Experts in the Behavioral Sciences, § 10:67.l, at 174 (Supp.

Sept. 2012) [hereinafter Campbell & Lorandos].

Thus, another practical problem that arises is the district court’s
lack of expertise in reviewing mental health records. According to a

leading treatise, “the judge likely does not have any degree of scientific
 87

training and expertise to determine if a psychological record has

information that may prove exculpatory to the defendant.” Id. § 10:67.l,

at 171. For example, in a Georgia case, a defendant in a child

molestation case was required to establish in the trial court that records

contained exculpatory information without seeing them. Tidwell v. State,

701 S.E.2d 920, 922 (Ga. Ct. App. 2010). After in camera inspection, the

trial court concluded the records should not be disclosed to the

defendant. Id. The appellate court noted that “ ‘[a] defendant who

challenges a trial court’s in camera inspection on appeal must show what
information was suppressed and how it is materially exculpatory.’ ” Id.

at 923 (quoting Dodd v. State, 668 S.E.2d 311, 315 (Ga. App. 2008)).

According to the treatise writers, this result is problematic for two

reasons, the first of which is that “[t]here is no basis in law or any

scientific review of the issue to place any faith in a trial judge’s capacity

to understand the science involved in issues joined in a child sex case.”

2 Campbell & Lorandos § 10:67.1, at 171; see also Margaret Bull Kovera

& Bradley D. McAuliff, The Effects of Peer Review and Evidence Quality

on Judge Evaluations of Psychological Science: Are Judges Effective

Gatekeepers?, 85 J. Applied Psychology 574, 583 (2000) (finding the

scientific training judges receive may be insufficient to help them

recognize flaws in psychological research, such as missing control groups

and nonblind experimenters). The second reason, according to the

treatise authors, is the aforementioned catch-22: “If the defendant has

not seen the records, how would they know what information is in them

and how it was materially exculpatory?” 2 Campbell & Lorandos

§ 10:67.1, at 171. Thus, under the Georgia approach, and by implication
the approach of other jurisdictions, a defendant seeking mental health

records “cannot win for losing.” Id.
 88

Once the medical information has been sensibly arranged,

translated, and generally understood, the next practical concern that

arises is careful judicial review. A competent attorney representing an

accused would see to it that the mental health records are examined line

by line to determine whether the records contain (1) direct evidence

related to the crime in question; (2) other evidence related to actual or

potential factual issues in the case; and (3) evidence useful for

impeachment, including inconsistent statements by a witness or

evidence related to the ability of the witness to accurately perceive,
comprehend, or recall events. In a voluminous file, the attorney involved

would make many judgment calls about the value of the information

presented and its potential admissibility. Further, if there is doubt

concerning the meaning of a record, counsel may retain the services of

experts, such as doctors or nurses, to provide the needed explanations.

In all likelihood, the district court may not be as well situated to

examine voluminous mental health records. A district court judge will,

no doubt, examine the records line by line, and make a conscientious

effort to determine if there is relevant and material evidence, but because

of the court’s necessarily restricted information base and its lack of

experience in comprehensive review of medical records, the review will

likely take more time and may be less precise than if conducted by

counsel. To the extent the meaning of the records cannot be fully

plumbed without outside logistical or expert assistance, the district court

could be at a disadvantage compared to an attorney with access to such

additional help. And, of course, the examination by the district court will

almost certainly be more time-consuming than review by an informed
advocate with a clearer eye for germane evidence.
 89

3. Avoiding constitutional problems with an in camera inspection.

Our desire to avoid the real and substantial problems in camera

inspection poses led to our approach in Cashen. There are several

interpretive and procedural approaches available, however, that might be

employed to address the potential difficulties.

a. Anticipatory briefing by the parties. To a certain extent, the

parties may mitigate the problems of in camera inspection by presenting

meaningful briefing that anticipates the difficulties the district court is

likely to face. For example, the district court’s lack of medical expertise
may be remedied by attaching appropriate materials, such as an expert’s

affidavit indicating the potential relevance of possible discoveries in the

medical records, pages from the DSM, or other source material likely to

be helpful to the district court. The parties, however, will still be unable

to fully assist the court because of the lack of knowledge regarding the

actual contents of the records. Any anticipatory submissions will

necessarily still retain a cart-before-the-horse flavor, but well-prepared

counsel should be able, at least to some extent, to anticipate the tools

the district court might need for effective in camera inspection.

b. Request for supplemental submissions. The district court

should never engage in uninformed review of mental health records. The

problem, of course, is one of knowing what one does not know.

Production of documents for review by the district court, however, is only

an intermediate step. If the district court is unable to determine whether

the mental health records contain information that may be germane to

the case because of the court’s lack of expertise, it may seek the

supplemental assistance of the parties. Requests for assistance could be
shaped to avoid disclosure of confidential records where possible, but if

an informed review by the district court is not possible without some
 90

disclosure, disclosure is necessary to ensure the existence of an informed

review. The court can continue to safeguard confidentiality by entering

appropriate protective orders. Disclosure to a defense expert under an

appropriate protective order, therefore, may be an option to assist the

district court in its review.

The notion that in camera inspection may be complemented by

other judicially supervised processes is not a stranger to our law. In

State v. Heemstra, 721 N.W.2d 549, 563 (Iowa 2006), we held that

mental health records should be produced for in camera inspection, but
that copies should also be made available to counsel under appropriate

protective orders to assist the district court in evaluating the contents of

the records. Similarly, in Zaal, 602 A.2d at 1264, the Maryland Court of

Appeals noted that a district court could inspect the documents alone or

in the presence of counsel. The bottom line is that if the district court

finds itself unable to meaningfully review the mental health records in

the context of a particular request, there may be an avenue to obtain the

assistance of the parties and protect the constitutional rights of the

defendant.

c. Reasonable interpretation of requests for production. Because

the defense has not had an opportunity to review the requested records

prior to the motion for production, district courts should not narrowly

interpret such motions. The traditional skeptical judicial eye to

evidentiary issues should be replaced by the district court’s common-

sense understanding of the problems faced by defense counsel seeking

production of documents it has not had an opportunity to see. The

district court must understand that under the circumstances, the
advocacy will be more general, and less precise, than is ordinarily the

case. In cases involving close calls, the district court should tilt to the
 91

side of ordering production for in camera inspection. Green, 646 N.W.2d

at 310.

d. Recognition of obligation to revisit preliminary orders. Any order

on a pretrial motion for production or disclosure must be considered

preliminary, subject to later review by the court at the request of the

defense. This is the teaching of Ritchie. See 480 U.S. at 59–61, 107 S.

Ct. at 1002–03, 94 L. Ed. 2d at 58–60. Once the evidence has been

admitted at trial, the district court will be in a better position than it was

pretrial to determine the relevancy of any information in mental health
records. If the court determines in light of the evidence that disclosure of

information in the mental health records is required, the court can order

disclosure at that time.

While rulings after evidence has come in will be better informed,

and therefore more accurate, they will necessarily be less timely for the

defense. That is the downside inherent in an in camera inspection

regime. Once disclosure is made after the receipt of evidence, the

defense is entitled to a reasonable period to consider the impact of the

evidence and readjust its strategy. Effective cross-examination, however,

is not ordinarily developed on the fly. See State v. Clark, 814 N.W.2d

551, 568 (Iowa 2012) (Appel, J., dissenting); see also Hammon, 938 P.2d

at 994 (Mosk, J., concurring); William F. Conour, Use of Statements in

Medical Records in Examining a Witness, 52 Res Gestae 41, 42 (2009)

(“Before trial, medical records need to be thoroughly and carefully

reviewed by counsel in light of all the anticipated evidence and testimony

to determine the possible need for a motion in limine and to outline

potential objections at trial.” (Emphasis added.)). As noted by one
authority, development of effective cross-examination is not an isolated

event but must be integrated with the fabric of the trial through “careful
 92

preparation and painstaking effort.” John A. Burgess, Persuasive Cross-

Examination, 59 Am. Jur. Trials 1, § 19 (2013). Great cross-examination

is not “ad libbed in the courtroom.” Id. Further, a denial of effective

cross-examination is a “ ‘constitutional error of the first magnitude.’ ”

Davis, 415 U.S. at 318, 94 S. Ct. at 1111–12, 39 L. Ed. 2d at 355

(quoting Brookhart v. Janis, 384 U.S. 1, 3, 86 S. Ct. 1245, 1246, 16 L.

Ed. 2d 314, 316–17 (1966)). Because of the need for adequate

preparation, a continuance or mistrial may be required to allow the

parties to adjust their legal posture in light of the new information. By
revisiting the issue after the evidence has been received, however, the

district court may mitigate the problem caused by the lack of information

at the pretrial stage and may be in a position to vindicate due process

rights if subsequent events show that the defendant has been deprived of

important evidence that might help establish factual innocence.

e. Entry of appropriate order providing for meaningful appellate

review. In addition, in order to ensure due process, the district court

should enter an appropriate order that provides for meaningful appellate

review. To do so, the district court should outline the manner in which it

reviewed the records, generally outline the factual and legal issues

presented in the motion to produce, and provide a sufficient explanation

of the court’s decision. Where a defendant claims the denial of

production violated due process rights, appellate review will be de novo.

See State v. Rainsong, 807 N.W.2d 283, 286 (Iowa 2011); Cashen, 789

N.W.2d at 405.

In addition, if the district court makes a judgment against

production of evidence for use at trial, the court may, after ruling,
provide sealed copies of the underlying excerpts to counsel for purposes

of appeal under appropriate court supervision. See McGill, 539 S.E.2d at
 93

355. In this way, appellate review will be far more meaningful than if the

parties and the court were operating on a blind record.

4. Facial constitutionality of in camera inspection. Assuming the

adoption of the principles discussed above, I conclude the in camera

inspection provision of section 622.10(4)(a)(2)(b) does not violate the Due

Process or Confrontation Clauses of the Iowa or Federal Constitutions. It

appears a bare majority of the United States Supreme Court in Ritchie

approved of the practice. 480 U.S. at 58, 107 S. Ct. at 1002, 94 L. Ed.

2d at 58. Further, while there is authority for the proposition that in
camera inspection of mental health records in criminal cases is not

adequate under constitutional provisions in other states, see, e.g.,

Commonwealth v. Stockhammer, 570 N.E.2d 992, 1002–03 (Mass. 1991);

Commonwealth v. Lloyd, 567 A.2d 1357, 1360 (Pa. 1989), most have

followed the approach in Ritchie, see Fishman, 86 Or. L. Rev. at 29 &

n.113.

Our legislature has chosen to provide patients with what it

perceives to be greater protection of their privacy rights through the

mechanism of in camera inspection. In order to achieve that goal, the

legislature has chosen a procedure that shifts the burden of organizing,

understanding, and winnowing mental health records from the parties

operating under a protective order to the district court in camera.

If the mitigating approaches are implemented as described in this

opinion, I am not prepared to conclude the challenged provisions of

section 622.10(4)(a) violate the Due Process or Confrontation Clauses of

the Iowa or Federal Constitutions on their face. In some relatively simple

cases, in camera inspection may work quite well. For example, in cases
merely showing routine treatment not related in time or substance to

events related to the criminal trial, the trial court may readily conclude
 94

that disclosure should not occur. See, e.g., State v. Howard, 604 A.2d

1294, 1300 (Conn. 1992) (upholding a district court’s decision, after

inspecting psychiatric records, that nothing in the records remotely

related to the witness’s ability to testify or perceive events); see also State

v. Jackson, 862 A.2d 880, 889 (Conn. App. Ct. 2005) (upholding a trial

court’s decision to deny the defendant access to records that did “not

contain exculpatory or impeachment evidence or evidence relating [to the

victim’s] ability to comprehend, know and correctly relate the truth”). On

the other hand, as noted in United States v. Lindstrom, 698 F.2d 1154,
1160 (11th Cir. 1983), certain mental disorders “have a high probative

value on the issue of credibility” and should ordinarily be disclosed to the

parties. See also Commonwealth v. Figueroa, 595 N.E.2d 779, 785

(Mass. 1992) (holding that “where one of the charges is indecent assault

and battery on a mentally retarded person, the defense counsel must be

entitled to review the records concerning the complaining witness’s

condition of retardation”). When records show evidence probative of a

key witness’s ability “to recall, comprehend, and accurately relate the

subject matter of the testimony,” the mental health privilege will

ordinarily give way. State v. Barroso, 122 S.W.3d 554, 563 (Ky. 2003);

see also State v. Gonzales, 912 P.2d 297, 299, 302–03 (N.M. Ct. App.

1996) (holding the district court did not abuse its discretion in ordering

production of psychotherapy records for in camera inspection where the

defendant showed the complaining witness “had a history of blackouts

from alcohol” and had allegedly consumed alcohol and cocaine on the

night of the alleged offense). Similarly, where the defense demonstrates

that a witness has given inconsistent statements regarding events
surrounding the crime, mental health records relating to those events are

obviously subject to production. See Peseti, 65 P.3d at 129–30.
 95

In more complex cases, however, in camera inspection may not

work so well. Determination of whether in camera inspection may be

unconstitutional as applied in a given case must await a concrete

controversy where the district court declines to provide evidence to the

requesting party or where a claim is asserted that the district court

engaged in an inadequate or blind review.

5. Application of principles to this case. I agree that Neiderbach

has met the threshold requirement for in camera inspection. Clearly, he

has offered more than a generalized request for records. He has shown
that the records may reveal mental health problems that reflect on

Jherica’s ability to understand or perceive events at about the time of the

crime and raise issues regarding her ability to narrate. See Barroso, 122

S.W.3d at 562–63; Gonzales, 912 P.2d at 302–03. The district court

must obtain the documents for in camera inspection.

At this stage of the proceeding, at least, there is no basis for

judicial intervention on the ground that a violation of due process as

applied has occurred as a result of in camera inspection. Any further

challenges must await further proceedings in the district court.

E. Summary. Neiderbach has failed to show the challenged

provisions of section 622.10(4)(a)(2) are facially unconstitutional. The

new subsection to section 622.10 is different from the Cashen protocol.

It will to some extent reduce the number of occasions on which defense

counsel obtain access to mental health records. The new subsection also

shifts the burden of sifting through evidence to the district court, which

may not be in an ideal position to properly evaluate the material. Even

though district court judges do the best they can to handle the issues,
the shift of the burden may lead to delays, continuances, and even

mistrials. There are, however, approaches that district courts may
 96

employ to mitigate the difficulties posed by in camera inspection.

Hopefully, the substantive results under the new statute will be the same

as under the Cashen protocol—namely, that defense counsel will gain the

constitutionally-required access to potentially exculpatory evidence

contained in mental health records. If this turns out not to be the case,

however, there may be occasion to revisit the issues posed in this

appeal.12

Applying the statute, I conclude that the mental health records

sought by Neiderbach in this case should have been produced for in
camera inspection.

II. Admission of Photographic and Video Evidence.

A. Positions of the Parties. Neiderbach challenges the

admission of a photograph and a video into evidence. The photograph,

taken in January 2011, shows E.N. with a tracheal tube and a heat

moisture exchanger. The video shows E.N.’s trachea tube being cleaned

and suctioned and shows him experiencing several seizures. Neiderbach

asserts that the evidence is not relevant to any matter in the case under

Iowa Rule of Evidence 5.401. In the alternative, Niederbach asserts that

even if the photos are relevant, their probative value was substantially

outweighed by the danger of unfair prejudice under Iowa Rule of

Evidence 5.403. He claims the exhibits were presented in a way that

“maximized [their] theatrical effect and was clearly intended to arouse the

jury’s sense of horror.”

12Our only recent experience with in camera inspection of mental health records

occurred in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006). In Heemstra, the district
court originally engaged in in camera review and determined that no mental health
records should be produced to the defendant. Id. at 559. On review, we determined the
district court should have disclosed the records to the defense under a protective order
because the records indicated the victim had an explosive disposition that could have
been useful in the defense. Id. at 563.
 97

The State responds that the photo and video were relevant to show

that E.N. suffered a “serious injury.” The State emphasizes the photo

and video were not gruesome and not likely to arouse the jury’s sense of

horror. The State analogizes to cases where autopsy photographs are

admissible to illustrate and make understandable the testimony of a

pathologist. See, e.g., State v. Metz, 636 N.W.2d 94, 99 (Iowa 2001). In

any event, the State argues any nonconstitutional error would not entitle

Neiderbach to a new trial because, in light of the other evidence of E.N.’s

injuries, the admission of the photograph and video did not injuriously
affect Niederbach’s rights or create a miscarriage of justice. See, e.g.,

State v. Parker, 747 N.W.2d 196, 209–10 (Iowa 2008).

B. Discussion.

1. Relevance under Iowa Rule of Evidence 5.401. At the outset, I

consider Neiderbach’s challenge to the evidence as having no relevance

under Iowa Rule of Evidence 5.401. I reject the argument. Under rule

5.401, evidence is relevant if it has “any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Iowa

R. Evid. 5.401. The standard for relevance is a relatively low bar, and I

find the State jumped the hurdle with respect to the photo and video.

Clearly, the photo and the video contained evidence that tended to show

E.N. suffered serious injuries.

2. “Unfair prejudice” under Iowa Rule of Evidence 5.403. I now

consider Neiderbach’s more substantial argument that the evidence

should have been excluded under Iowa Rule of Evidence 5.403. This rule

provides that the district court may exclude relevant evidence “if its
probative value is substantially outweighed by the danger of unfair

prejudice.” Iowa R. Evid. 5.403.
 98

In considering the admissibility of evidence under rule 5.403, we

must first establish the legal framework. The legal framework was well

described in State v. Cromer, 765 N.W.2d 1, 8–10 (Iowa 2009). The first

question is whether the evidence offered has probative value on an issue

in the case. Id. at 8. If the evidence has probative value, our next

inquiry asks whether admission of the evidence may cause unfair

prejudice that substantially outweighs its probative value. Id. at 9–10.

On the first question, there is no question that the evidence in the

videotape has probative value. Whether E.N. suffered serious injuries as
a result of child abuse was an important issue in the litigation. The

video demonstrates E.N.’s injuries in a powerful way. It is true that the

evidence was to some extent cumulative of expert testimony, but where

probative evidence is merely cumulative, the admissibility determination

is generally left to the discretion of the district court judge. State v.

Maxwell, 222 N.W.2d 432, 435 (Iowa 1974). However, the persuasive

power of the video is clear. Thus, the video was not merely cumulative,

but offered evidence of serious harm to E.N. in a convincing and

persuasive fashion. Notably, the defense declined to stipulate to the

issue of whether E.N. suffered a serious injury and, as a result, the

prosecution was free to prove its case with the available evidence.

Turning to the second inquiry, in Cromer we stated “ ‘ “unfair

prejudice” . . . means an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.’ ”

765 N.W.2d at 9 (quoting Old Chief v. United States, 519 U.S. 172, 180,

117 S. Ct. 644, 650, 136 L. Ed. 2d 574, 588 (1997)). We also referred to

evidence that presents a danger of unfair prejudice as a piece of
“unwanted baggage.” Id. at 9–10. In certain cases, we have upheld a

district court’s decision to exclude proffered evidence that contained
 99

prejudicial collateral baggage unrelated to the elements of the underlying

crime. For instance, we have upheld a district court’s decision to exclude

evidence of a decedent’s state of undress from the waist down at the time

of an accident in a case involving our state’s dram shop act. Horak v.

Argosy Gaming Co., 648 N.W.2d 137, 149 (Iowa 2002). We have also

held that a district court should have excluded a police officer’s

testimony about a defendant’s prior arrests and violent tendencies when

asked why he patted the defendant down for weapons because the need

for such evidence “was very weak in light of the primary issues in the
case,” “[t]he officer had already testified about two other valid,

nonprejudicial reasons . . . for conducting the pat-down,” and “evidence

of [the defendant’s] violent nature could only serve to inflame the

passions of the jury.” State v. Martin, 704 N.W.2d 665, 671–72 (Iowa

2005). In the present case, however, there is no collateral baggage.

Rather, the claim is made that the probative evidence was simply too

powerful, too emotional-laden, to be admitted under rule 5.403.

We have on occasion held that evidence should be excluded under

rule 5.403 where there was not collateral baggage but where the evidence

was too confusing or encouraged the jury to make unwarranted

assumptions. For example, in State v. Huston, 825 N.W.2d 531, 537–38

(Iowa 2013), we held testimony that the department of human services

considered a child-abuse report founded should have been excluded

because of the danger of unfair influence on the jury. Similarly, in In re

Detention of Stenzel, 827 N.W.2d 690, 705–08 (Iowa 2013), we held

testimony from an expert regarding the process by which the state

decides which inmates will become subject to sexually violent predator
proceedings should have been excluded under rule 5.403.
 100

There is some authority that photographs of a crime that do not

carry collateral baggage may be excluded if they are merely cumulative

and quite gruesome. See, e.g., State v. Poe, 441 P.2d 512, 514–15 (Utah

1968) (holding the trial court abused its discretion in admitting color

slides made during the course of an autopsy depicting the deceased’s

skull after removal of the brain). But see State v. Wells, 603 P.2d 810,

813 (Utah 1979) (rejecting a defendant’s contention that photographs of

a victim’s gunshot wounds should not have been admitted into evidence).

Some of our older cases generally seem to reject this approach. See State
v. Hickman, 337 N.W.2d 512, 515–16 (Iowa 1983) (noting that “[t]rial

courts have discretion in determining whether the value of pictures as

evidence outweighs their grisly nature” and that “[d]eath pictures are not

ordinarily excluded because they are gruesome . . . for murder is by

nature a gruesome business.”); accord State v. Seehan, 258 N.W.2d 374,

378 (Iowa 1977); State v. Lass, 228 N.W.2d 758, 771 (Iowa 1975).

In any event, we need not decide whether relevant videos or

photographs that do not contain collateral baggage may never be

excluded on unfair prejudice grounds solely because of their emotional

content. The evidence in this case was powerful, but the power arose

from the objective nature of the injuries to the child and was not due to

dramatic staging or presentation. The evidence was not gruesome, it was

not confusing, and it did not invite unwarranted conclusions. Under the

circumstances of this case, I conclude there is not sufficient unfair

prejudice to reverse the district court’s decision to allow introduction of

the evidence.

III. Issues Related to Expert Testimony.
A. Positions of the Parties. Neiderbach challenges the

admission of testimony by two prosecution experts regarding evidence
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contained in articles published in medical journals. The first expert, Dr.

Wilbur Smith, offered testimony about an article recounting the story of a

nanny who worked for a physician and admitted to having shaken a

baby, thereby producing injuries. The second expert, Dr. Carole Jenny,

offered testimony about a study in the journal Pediatrics in which

twenty-eight persons admitted to shaking babies who were subsequently

found to have serious brain injuries.

Neiderbach claims the evidence should have been excluded as

hearsay. Neiderbach claims the State did not show the hearsay was
within the scope of Iowa Rule of Evidence 5.703, which allows an expert

to rely on facts or data if “of a type reasonably relied upon by experts in

the particular field in forming opinions or inferences upon the subject.”

Niederbach points to State v. Barnett, 445 N.W.2d 749, 752 (Iowa 1989),

in which we stated, “The usual facts or data, under the rule, would

ordinarily be lab or other test results, charts, texts, etc.” Neiderbach

asserts that the State failed to meet the foundational requirement of rule

5.703. Even if the State met this requirement, Niederbach argues, under

C.S.I. Chemical Sales, Inc. v. Mapco Gas Products, Inc., 557 N.W.2d 528,

531 (Iowa Ct. App. 1996), the evidence should then “only [be] admitted to

explain the basis for the expert opinion,” not for its truth.

Neiderbach also contends the admission of the testimony violated

the Confrontation Clauses of the State and Federal Constitutions.

Neiderbach cites Crawford v. Washington, 541 U.S. 36, 53–54, 124 S. Ct.

1354, 1365, 158 L. Ed. 2d 177, 194 (2004), for the proposition that the

Confrontation Clause of the Federal Constitution bars “admission of

testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity

for cross-examination.” Neiderbach notes the Pediatrics article cited by
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Dr. Jenny states with respect to the twenty-eight persons who admitted

shaking their babies, “ ‘No statement was obtained during

hospitalization. All confessions came during police custody or judicial

investigation, weeks or months after the diagnosis.’ ” Appellant’s Br. 35

(quoting Catherine Adamsbaum et al., Abusive Head Trauma: Judicial

Admissions Highlight Violent and Repetitive Shaking, 126 Pediatrics 546,

549 (2010)). According to Neiderbach, “ ‘[w]here an expert acts merely as

a well-credentialed conduit for testimonial hearsay,’ such testimony

violates a defendant’s right to confrontation.” Id. at 36 (quoting United
States v. Ramos-Gonzáles, 664 F.3d 1, 5 (lst Cir. 2011)).

The State, citing Iowa Rule of Evidence 5.703, maintains the

experts may rely upon otherwise inadmissible facts or data in arriving at

their opinions if such facts or data are derived from sources “reasonably

relied upon by experts in the particular field.” See also Brunner v.

Brown, 480 N.W.2d 33, 34–37 (Iowa 1992) (examining rule 5.703). The

State maintains that Drs. Smith and Jenny simply relied upon

information that was contained in studies published in prestigious

medical journals and widely accepted by other physicians. Further, the

State argues the evidence may be admitted not for its truth but only to

show the basis of the experts’ opinions. See Gacke v. Pork Xtra, L.L.C.,

684 N.W.2d 168, 183 (Iowa 2004) (“[E]vidence admitted under [rule

5.703] is admitted for the limited purpose of showing the basis for the

expert witnesses’ opinions; it is not admissible as substantive evidence of

the matters asserted therein.”). Because the facts and data were not

offered for their truth, the State claims, the testimony is not hearsay

under Iowa Rule of Evidence 5.801(c). With respect to such evidence,
according to the State the defendant is entitled to a limiting instruction
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(which Neiderbach did not request) but not exclusion. See Brunner, 480

N.W.2d at 37.

With respect to the Confrontation Clause claim, the State contends

the challenged out-of-court statements were not offered for their truth

and are not hearsay. See Crawford, 541 U.S. at 59 n.10, 124 S. Ct. at

1369 n.10, 158 L. Ed. 2d at 197–98 n.10 (“The Clause also does not bar

the use of testimonial statements for purposes other than establishing

the truth of the matter asserted.”). The State cites a leading Iowa

treatise, which indicates

[a] significant number of courts have concluded that expert
opinion testimony based on testimonial hearsay does not
violate the Confrontation Clause because the expert is
available and subject to cross-examination and because the
otherwise inadmissible data is offered, not for its truth, but
to assist in evaluating the testifying expert’s opinion.

7 Laurie Kratky Doré, Iowa Practice Series: Evidence, § 5.703:4, at 715

(2012).

B. The Hearsay Rule and its Exceptions.

1. Iowa Rule of Evidence 5.703. Rule 5.703 allows hearsay

testimony “[i]f of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences upon the subject.” Iowa

R. Evid. 5.703. We have emphasized rule 5.703 is “intended to give

experts appropriate latitude to conduct their work, not to enable parties

to shoehorn otherwise inadmissible evidence into the case.” Stenzel, 827

N.W.2d at 704. We have held that in order to invoke rule 5.703, the

record must show that experts “in ‘the particular field’ ” generally rely on

the data in forming their opinions. Id. at 706 (quoting Iowa R. Evid.

5.703). It is thus not enough that an individual expert purports to rely
upon the data. Id. Further, the reliance upon the data must be

reasonable. An expert’s determination that his reliance is reasonable is
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not conclusive, but rather is “ ‘only one factor in the consideration.’ ” Id.

at 706 (quoting Brunner, 480 N.W.2d at 35).

2. Iowa Rule of Evidence 5.803(18). Iowa Rule of Evidence

5.803(18) allows admission of facts in a learned treatise “[t]o the extent

. . . relied upon by [an expert] witness in direct examination, statements

contained in published . . . periodicals . . . established as a reliable

authority by the testimony or admission of the witness or by other expert

testimony or by judicial notice.” The State, however, does not specifically

urge the application of this exception on appeal.
There is a body of federal authority under a parallel rule of

evidence related to learned treatises. One of the issues in the federal

cases is whether testimony about the nature of the periodical generally is

sufficient to allow an expert to introduce hearsay under the learned

treatise exception. A leading case in this regard is Meschino v. North

American Drager, Inc., 841 F.2d 429, 434 (1st Cir. 1988), which stated:

In these days of quantified research, and pressure to
publish, an article does not reach the dignity of a “reliable
authority” merely because some editor, even a most
reputable one, sees fit to circulate it. Physicians engaged in
research may write dozens of papers during a lifetime. Mere
publication cannot make them automatically reliable
authority. The price of escape from cross-examination is a
higher standard than “qualified,” set for live witnesses who
do not. The words have a serious meaning, such as
recognition of the authoritive stature of the writer, or
affirmative acceptance of the article itself in the profession.

See also Twin City Fire Ins. Co. v. Country Mut. Ins. Co., 23 F.3d 1175,

1184 (7th Cir. 1994) (“It is not enough that the journal in which it

appeared was reputable; the author of the particular article had to be

shown to be an authority before the article could be used consistently
with Fed. R. Evid. 803(18).”); Jacober ex rel. Jacober v. St. Peter’s Med.

Ctr., 608 A.2d 304, 313 (N.J. 1992) (“Mere publication does not
 105

automatically render a text a reliable authority. However, an expert can

demonstrate a text’s authoritativeness by testifying that professionals in

the field regard the text as trustworthy.” (Citation omitted.)). But see

Costantino v. Herzog, 203 F.3d 164, 172 (2d Cir. 2000) (“[G]ood sense

would seem to compel recognizing some periodicals—provided there is a

basis for doing so—as sufficiently esteemed to justify a presumption in

favor of admitting the articles accepted for publication therein.”).

The approach of Meschino has been endorsed by commentators.

For instance, the authors of The New Wigmore: A Treatise on Evidence:
Expert Evidence note that “[t]he fact that an article was published after

editorial peer review in a respected scientific or medical journal is not

sufficient to qualify the article as reliable authority.” David H. Kaye,

David E. Bernstein, & Jennifer L. Mnookin, The New Wigmore: A Treatise

on Evidence: Expert Evidence § 5.4.2, at 232 (2d ed. 2010) [hereinafter

The New Wigmore]. Thus, according to the treatise authors, “the

ultimate test of whether the article is a reliable authority is not the

respectability of the journal, but the authoritativeness of the particular

article.” Id. at § 5.4.2, at 233. As an example of the application of this

rule, the treatise cites Wiggins v. State, 104 So. 2d 560, 566 (Ala. Ct.

App. 1958), where an Alabama court ruled that an article from the

Southern Medical Association Journal was properly excluded because the

proponent offered no evidence that the writing presented “a substantially

recognized theory such as might be found in a standard medical book.”

See also The New Wigmore § 5.4.2, at 233; Jack P. Lipton, Maureen

O’Connor, & Bruce D. Sales, Rethinking the Admissibility of Medical

Treatises as Evidence, 17 Am. J.L. & Med. 209, 226 (1991) (noting recent
studies indicate the assumption that a medical treatise is trustworthy

“may be unjustified”).
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While there are no Iowa cases on point, federal caselaw suggests

that magic words are not required to establish the foundational

requirements of the learned treatise exception to the hearsay rule.

Burgess v. Premier Corp., 727 F.2d 826, 834 (9th Cir. 1984) (holding the

undisputed facts that the author of a treatise was “the preeminent

industry expert” and that a company “required its salesmen to read the

books and to recommend them to investors” was sufficient to

“substantiate the idea that the books were accepted authority”); Dawson

v. Chrysler Corp., 630 F.2d 950, 961 (3rd Cir. 1980) (concluding
quotations from two reports on automobile crashworthiness prepared for

the United States Department of Transportation were admissible under

the learned treatise exception where one of the opponent’s experts

inferentially conceded its authoritativeness and the opponent did not

object at the time of trial).

3. Application of rules to the testimony of Dr. Smith. The State’s

expert, Dr. Smith, sought to testify about hearsay statements made by a

nanny who apparently admitted to having violently shaken babies who

were subsequently found to have injuries. Neiderbach objected on

hearsay grounds to the admission of Dr. Smith’s testimony related to the

nanny’s statements. In response, the State elicited testimony from

Dr. Smith that the hearsay was contained in a published report in a

“good medical journal.” The defense at trial countered that the State had

not satisfied the learned treatise exception to the hearsay rule, noting

that “we don’t even know the name of the article or the journal in which

it was published.” Nonetheless, the court after this record was made

overruled the objection.
I conclude the court erred on this record in allowing testimony

regarding statements made by the nanny. The State made no effort to
 107

establish that the hearsay was considered reliable in forming opinions by

experts in the field under Iowa Rule of Evidence 5.703. See Stenzel, 827

N.W.2d at 704. While the State offered some testimony related to the fact

that the hearsay was published in “a good medical journal,” this is not

sufficient to qualify for admissibility under the learned treatise exception.

See Twin City Fire Ins. Co., 23 F.3d at 1183; Meschino, 841 F.2d at 434.

Thus, the State failed to show the article itself was authoritative and was

relied upon by experts in the field.

The State argues the hearsay was not, in fact, admitted for the
truth of the matter asserted, but rather only to show the basis of the

expert’s opinion. But even as a basis for the expert’s opinion, the

evidence must meet the requirements of rule 5.703. Because the

testimony of Dr. Smith as it relates to the nanny did not so qualify, his

testimony regarding the nanny should not have been admitted.

4. Application of rules to the testimony of Dr. Jenny. The State also

sought to introduce hearsay through Dr. Jenny regarding the

Adamsbaum study, in which twenty-eight persons involved in child-

abuse cases confessed to having shaken their children. At trial, the

State asked Dr. Jenny whether the Adamsbaum study was published “in

journals typically relied on in the medical field.” Dr. Jenny responded

that the article was published in Pediatrics, the journal of the American

Academy of Pediatrics, which Dr. Jenny described as “the most

prestigious journal in the field of pediatrics.” The district court then

admitted the evidence over Niederbach’s objection.

The admission of this hearsay was also error. The State did not

establish that the facts or data in the article were the kind of material
relied upon by experts in the field under rule 5.703. The same is true

regarding any admission of the material under rule 5.803(18). Although
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it may be that Pediatrics generally is a prestigious journal typically relied

upon by experts in the field, the State did not establish that the specific

article in the journal was of a type upon which experts in the field

ordinarily rely.

5. Prejudicial error. As noted in Stenzel, we only find reversible

error when admission of improper evidence affects a party’s substantial

rights. 827 N.W.2d at 708. Yet, “ ‘[t]he admission of hearsay evidence is

presumed to be prejudical error unless the contrary is affirmatively

established.’ ” Id. (quoting Gacke, 684 N.W.2d at 183) (internal quotation
marks omitted). I conclude on this record that any error in the court’s

initial ruling was not prejudicial.

IV. Conclusion.

For the above reasons, I concur in the result in this case.

Wiggins and Hecht, JJ., join this special concurrence.