MONTEZUMA — The lawyers for the man accused in the slaying of 20-year-old Mollie Tibbetts want him to testify via affidavit instead of testifying live next week during a suppression hearing, but prosecutors say they should be allowed to cross-examine him.
In a motion filed Wednesday, Poweshiek County Attorney Bart Klaver asked that a judge allow the prosecution to cross-examine Cristhian Bahena Rivera, 24, arguing that an affidavit is hearsay — an out-of-court statement offered as truth — and is “self-serving and lacks context and detail.”
The affidavit was included in the defense’s exhibit list filed Oct. 21, and prosecutors were given notice that Bahena Rivera would not testify live at the Nov. 13 hearing in Woodbury County District Court, according to the motion.
If the affidavit replaces live testimony, the prosecution needs to have the opportunity to cross-examine the defendant, Klaver said.
If prosecutors are not allowed to cross-examine Bahena Rivera, then the court should toss out the affidavit, Klaver stated in the motion. He said the affidavit wouldn’t be necessary if Bahena Rivera would testify live under oath.
The defense has not yet responded to Klaver’s motion.
Next week’s suppression hearing
Lawyers for Bahena Rivera, who is charged with first-degree murder, plan to argue next week that their client’s statements made to police after his arrest should be kept out of trial because they were not voluntary nor was his waiver of his Miranda rights.
Expert witnesses will testify how sleep deprivation affects a person’s judgment and DNA. A court interpreter also will challenge the accuracy of the Spanish used by law enforcement and the translated transcript provided by the prosecution.
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The prosecution has conceded that a portion of Bahena Rivera’s interview cannot be used at trial because an officer inadvertently omitted the entire Miranda warning, leaving out that anything the defendant says can be used against him in court, according to documents filed last week.
A second complete Miranda warning, prosecutors argued, was read to Bahena Rivera in a vehicle about 5:50 p.m. Aug. 21, 2018, while they were near the area Tibbett’s body was found. Bahena Rivera waived his rights that time and continued to talk with officers.
It was after that when the defendant made numerous statements that implicate him in Tibbett’s slaying, according to the prosecution.
Prosecutors argue the statements made following the incomplete and second warnings are voluntary, not coerced or the “product of a false confession, and plan to use any of those statements to rebut or impeach any expert or witness testimony.
Tibbetts, a University of Iowa student, disappeared July 18, 2018, while jogging near her home in Brooklyn, Iowa. She died of “multiple sharp force injuries.”
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