                   IN THE SUPREME COURT OF IOWA

                              No. 13–0588

                           Filed June 30, 2015


STATE OF IOWA,

      Appellee,

vs.

HILLARY LEE TYLER,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Webster County, Thomas J.

Bice, Judge.


      Defendant appeals her conviction for murder in the second degree

for the death of her newborn son. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART AND

REVERSED IN PART AND CASE REMANDED.


      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller and Laura

Roan, Assistant Attorneys General, and Ricki Osborn and Cori Kuhn

Coleman, County Attorneys, for appellee.
                                     2

ZAGER, Justice.

      Hillary Tyler appeals her conviction for murder in the second

degree for the death of her newborn son (Baby Tyler).       See Iowa Code

§§ 707.1, .3 (2011).    She maintains the district court erred in denying

several of her trial motions, including: a motion in limine to exclude a

medical examiner’s testimony and autopsy report opining to the cause

and manner of Baby Tyler’s death, a motion to suppress evidence

obtained by police during the search of Tyler’s hotel room, and a motion

to suppress statements Tyler made to police. She also maintains there

was insufficient evidence to support her conviction. The court of appeals

held the district court abused its discretion in allowing the medical

examiner to testify to the cause and manner of Baby Tyler’s death and in

admitting the unredacted autopsy report into evidence. Accordingly, it

reversed the judgment of the district court and remanded the case for a

new trial.   The court of appeals did not address the remaining issues

raised in the appeal.

      The State applied for further review, which we granted. On further

review, we conclude the district court abused its discretion in allowing

the medical examiner to testify to the cause and manner of Baby Tyler’s
death because the medical examiner based his opinions primarily, if not

exclusively, on Tyler’s inconsistent and uncorroborated statements to

the police as opposed to objective, scientific, or medical evidence. For the

same reason, the district court should have redacted any reference to

cause and manner of death in the autopsy report.          Additionally, we

conclude the district court erred in denying Tyler’s motion to suppress

evidence obtained by the police during the search of the hotel room

based solely on the legal conclusion that Tyler had no reasonable

expectation of privacy in the room because she obtained it for the
                                         3

purpose of committing a crime.           Thus, we reverse this motion and

remand the issue for further hearing and ruling by the district court

concerning the applicability of exceptions to the warrant requirement or

exclusionary rule. We affirm the district court’s denial of Tyler’s motion

to suppress statements she made to police. We vacate the decision of the

court of appeals, affirm the judgment of the district court in part and

reverse in part, and remand the case for additional proceedings

consistent with this opinion and a new trial.

      I. Background Facts and Proceedings.

      Tyler and Rodney Cyphers began dating in 2010. In early 2011,

Cyphers noticed Tyler was beginning to exhibit signs of pregnancy and

asked her if she was pregnant. Tyler denied being pregnant. She told

Cyphers she was suffering from a medical condition that caused her to

exhibit signs typically associated with pregnancy.       Tyler was in fact

pregnant. Over time, Tyler exhibited increased signs of pregnancy and

began wearing looser fitting clothing. Even so, Tyler continued to deny

she was pregnant to anyone who asked and refused to allow Cyphers to

touch her abdomen.

      In the summer of 2011, Cyphers’s employer assigned him to a job

at a plant located in Fort Dodge, Iowa. At the end of August, Tyler and

Cyphers temporarily relocated to Coalville, Iowa, which is approximately

ten miles south of Fort Dodge. While there, Tyler and Cyphers lived in a

fifth-wheel trailer in a trailer park.

      At approximately 3:00 a.m. on September 19, Tyler began

experiencing mild contractions. At approximately 6:30 a.m., she called

the Super 8 Hotel in Fort Dodge to inquire about a room. She spoke with

the hotel manager who advised her that a room was available.         Tyler

arrived at the hotel approximately twenty minutes later and checked into
                                      4

room 225. Tyler occupied room 225 from approximately 6:50 a.m. until

4:30 p.m. At approximately 12:00 p.m., she gave birth to Baby Tyler in

the bathroom of room 225. She then “laid around for a little bit” and

“cleaned the bathroom floor” before returning to the trailer in Coalville.

Cyphers was home when she arrived. Shortly before 7:00 p.m., Cyphers

left to work a night shift. Tyler stayed alone at the trailer for the night.

          After working the night shift, Cyphers returned to the trailer at

approximately 7:15 a.m. on September 20. Tyler was present when he

arrived. The couple ate breakfast and ran a few errands before returning

to the trailer so that Cyphers could sleep. At approximately 10:15 a.m.,

Tyler returned to the hotel to check out of room 225.           Upon Tyler’s

arrival, the hotel manager informed Tyler there had been a cancellation

and room 225 was available for an additional night. Another member of

the hotel staff had previously informed Tyler room 225 was not available

for an additional night. Tyler rented room 225 for the night of September

20. Shortly thereafter, she left the hotel and returned to the trailer in

Coalville. She intended to return to the room later that evening to clean

it further.

          At approximately 11:00 a.m., a housekeeper at the hotel entered

room 225 to clean it. Because Tyler had not rerented the room until late

that morning, the sheet informing the housekeeper of the room’s rental

status had not been updated to reflect that the room was a “stayover” as

opposed to a “checkout.”       The doorknob to the room had a “Do Not

Disturb” sign hanging from it. Upon entering the room, the housekeeper

observed the carpet was saturated with blood.            Upon entering the

bathroom, she further discovered “a lot of blood smear[ed] . . . on the

floor.”     The housekeeper then exited the bathroom and discovered a

“hoodie coat.” She picked it up and observed the inside of the coat was
                                     5

saturated with blood.    Additionally, she observed two discarded vodka

bottles and “$8 . . . on the dresser by the TV,” which she thought was a

tip.   She also observed a garbage can in the room, which contained a

“white towel bundled up” among other trash. She “slid the garbage can”

across the room and discovered it was “heavy.” She did not empty the

garbage can or further examine its contents. In a panicked state, she left

the room and reported her findings to the hotel manager. The manager

and the housekeeper returned to the room. Another housekeeper also

entered the room “because she could tell there was something going on

in the room.”   The other housekeeper “pulled the can liner out of the

garbage can” and the group observed the towel in the garbage can had

some blood on it and the bottom of the garbage bag contained “fluid and

some blood.”    Although they did not see Baby Tyler’s body, they were

very concerned about the contents of the garbage can.        The manager

then called the police to report these findings.

       Police were dispatched to the hotel at approximately 11:36 a.m.

According to the responding officer, the original complaint “was for . . .

criminal mischief . . . or . . . vandalism[,] . . . so that’s what [he] was

thinking going into it.” Upon arrival at the hotel, the responding officer

spoke with the hotel manager who advised him what the hotel staff had

observed. Accompanied by hotel staff, the officer entered room 225 to

investigate. Thereafter, he contacted his supervisor who arrived within

approximately ten minutes. Over the next twenty to fifty minutes, the

officers looked around the room as several additional officers arrived at

the scene. In the course of their investigation, officers observed that, in

addition to the blood, there appeared to be other bodily fluids present in

the room.    Eventually, one of the officers moved the towel and other

items in the garbage can.      Beneath these items, he discovered Baby
                                           6

Tyler’s body. At that point, it “didn’t appear that there was any need to

render any aid,” so the officers secured the room until they could obtain

a search warrant.

       After officers discovered Baby Tyler’s body, Fort Dodge police

contacted the Iowa Division of Criminal Investigation (DCI). Detectives

from the Fort Dodge Police Department, in cooperation with the DCI,

were subsequently able to identify and locate Tyler.               At approximately

2:08 p.m., Special Agent Michael Roehrkasse of the DCI, Special Agent

Ray Fiedler of the DCI, and Detective Jody Chansler of the Fort Dodge

Police Department went to the trailer in Coalville. 1              The officers were

dressed in plain clothes as opposed to police uniforms.                   The officers

approached the trailer and knocked on the door. Tyler answered. The

officers’ encounter with Tyler was audio recorded.

       After making contact with Tyler, the officers told her they needed to

speak with her. She told them she understood that she needed to speak

with them.     Detective Chansler asked Tyler if she needed any medical

attention. She replied, “No.” He then stated, “I want to have you go with

this guy right here,” and pointed to Special Agent Roehrkasse.                       He

further stated, “We need to get to the bottom of what’s going on.” He
then asked Tyler, “Are you okay with that?” Tyler responded, “Yea.”

       Tyler followed the officers to Special Agent Roehrkasse’s vehicle

and entered it. Outside of Tyler’s presence, the officers discussed how

Special Agent Roehrkasse should ask Tyler if the baby was born alive.

Special Agent Roehrkasse then entered the vehicle and proceeded to

drive to the Fort Dodge police station. He did not read Tyler her Miranda

rights at this time.      During the ride, Special Agent Roehrkasse asked

       1We will refer to the special agents of the DCI and the officers of the Fort Dodge
Police Department as “officers” when referred to collectively.
                                     7

Tyler if the baby had moved. She responded, “No.” He also asked her if

the baby had cried. She responded, “No.” Special Agent Roehrkasse and

Tyler did not discuss anything else of significance during the ride to the

police station.

      After arriving at the police station, Tyler was escorted to an

interview room in the basement. Thereafter, Special Agent Roehrkasse,

along with Special Agent Jim Thiele of the DCI, questioned Tyler over a

period of approximately three hours. The interview was video recorded.

Both officers were wearing guns on their hips. During the interview, the

door to the room was closed; however, it was unlocked and Tyler’s path

to it was unobstructed.

      Special Agent Roehrkasse began the interview by asking Tyler if

she needed any medical attention.        She responded, “No.”      He then

informed her that although she had ridden with him to the police station,

she was free to leave at any time.       He also informed her that if she

desired, he would drive her back to the trailer. He told her that although

the door was shut, that should not deter her from leaving. During the

interview, the special agents again reminded Tyler she was not in

custody and was free to leave. The special agents twice suggested that

Tyler seek medical treatment.

      During the first half of the interview, the special agents asked Tyler

open-ended questions about her background and the events surrounding

Baby Tyler’s birth. During this period, Tyler told the special agents that

after Baby Tyler was born he was silent, he did not move, and she

immediately placed him in the garbage can. After approximately forty-

five minutes, the special agents took a forty-three minute break. Before

they left the room, Special Agent Thiele reminded Tyler the door was

unlocked and informed her that she was free to “get up and roam
                                    8

around” if she wanted.     After the break, Special Agent Roehrkasse

returned alone, began asking Tyler more pointed questions about the

birth, and posited several hypothetical questions about what the autopsy

would show. Tyler eventually stated that after Baby Tyler was born he

moved and cried and she placed him in the bathtub and turned the

water on for the purpose of drowning him.      Special Agent Roehrkasse

then took another thirty-minute break before returning to ask Tyler

several follow-up questions. Special Agent Roehrkasse then took another

fifteen-minute break. Upon his return, he informed Tyler she would be

“charged today” and read Tyler her Miranda rights.      After waiving her

Miranda rights by signing a written waiver form, Special Agent

Roehrkasse reviewed Tyler’s statements with her. Tyler confirmed that

after Baby Tyler was born he moved and cried and she placed him in the

bathtub and turned on the water for the purpose of drowning him. At

the conclusion of the interview, the special agents took Tyler to the

hospital for medical treatment.

      Although the exact time is not clear from the record, officers filed

an application for search warrant after they completed the interview at

the police station.   Through the warrant application, officers sought

authorization to search for and seize items from room 225, a pickup

truck registered to Cyphers, and the trailer in Coalville.   Officers also

sought to obtain DNA samples from both Tyler and Cyphers for analysis.

In the warrant application, Detective Cory Husske wrote that at

approximately 11:00 a.m. the Super 8 cleaning staff “found . . . room

[225] in disarray,” “saw what looked like blood in multiple locations

around the room and bathroom,” “observed a garbage can in the room

containing towels soaked in blood and female menstruation pads,”

noticed the garbage can “had a heav[y] weight about it,” and contacted
                                            9

police. The warrant application noted that after officers confirmed the

information provided by the hotel staff and found Baby Tyler’s body in

the garbage can, they decided to “get as much information extracted from

[the] room as [was] possible through the use of a search warrant.” The

warrant application explained the officers then sought to locate Tyler

and, in cooperation with the DCI, were successful in doing so. Finally,

the warrant application noted that officers had “obtained audio/video

recorded statements from [Tyler] in which she . . . admitted to giving

birth to a baby and discarding it.”               Officers subsequently seized a

number of items from room 225, including Baby Tyler’s body and a piece

of the umbilical cord. Officers also seized a number of items from the

trailer in Coalville, including the placenta.

       After Tyler arrived at the hospital on September 20, Dr. Daniel Cole

treated her and ordered several lab tests. He testified at the suppression

hearing and at trial that Tyler was alert and aware of her surroundings

when he was treating her. Thereafter, Tyler received surgical repair for a

tear from childbirth. She had lost a large amount of blood and her blood

pressure was high.           She received a blood transfusion and several

medications. 2       Tyler was also suffering from a condition called
preeclampsia. This is a condition that occurs in pregnancy and causes

the patient to become hypersensitive and leads to increased blood

pressure.


       2Some    of the medications Tyler received include Labetol, magnesium sulfate,
and codeine. At the suppression hearing, Dr. Cole testified that Labetol is used to treat
high blood pressure, magnesium sulfate is used to treat high blood pressure in
pregnancy, and codeine is a narcotic. He testified that because Tyler was taking several
medications to reduce high blood pressure, it was possible these medications caused
her blood pressure to drop too low, which could potentially affect her mental status.
Additionally, he testified that codeine could affect a person’s mental status if given in a
“high enough dose.” However, no evidence was presented suggesting these medications
in fact affected Tyler’s mental status.
                                        10

       The next day, September 21, Special Agent Roehrkasse and Special

Agent in Charge Larry Hedlund of the DCI went to Tyler’s hospital room

to question Tyler again. This interview was audio recorded and lasted for

approximately fifty minutes. At the start of the interview, Special Agent

in Charge Hedlund read Tyler her Miranda rights. “[H]e went through

each of [her rights] and had her explain what each of the rights meant to

her.” Tyler explained each of her rights back to the special agents in her

own words.      She acknowledged that she understood her rights and

signed another written waiver form. Tyler told the special agents she was

“really out of it.” However, she remembered speaking with Special Agent

Roehrkasse the previous day and that his name was “Mike.” She also

knew that she was at the hospital. 3           Additionally, when the special

agents asked Tyler if she would prefer “[they] come back later,” Tyler

responded, “You can talk to me.” The special agents told Tyler that if she

got too tired or upset, they would stop the questioning.               During the

questioning Tyler never appeared confused and was alert and tracking

with the special agents’ questions. During this follow-up interview, Tyler

again stated that after Baby Tyler was born he moved and cried and she

placed him in the bathtub and turned on the water for the purpose of
drowning him.

       Baby Tyler’s body, a piece of the umbilical cord, and the placenta

were taken to the offices of the State Medical Examiner. Thereafter, Dr.

Jonathan Thompson, an Associate State Medical Examiner trained in the

field of forensic pathology, performed an autopsy on Baby Tyler’s body

and a pathology examination on the body and related items.                      Dr.



       3Apsychiatric evaluation conducted on September 21 stated that at the time of
the examination, Tyler was oriented to time and place.
                                      11

Thompson subsequently issued a “Report of Autopsy” summarizing his

findings.

      After performing the autopsy and pathology examination, Dr.

Thompson’s opinions on both the cause and manner of Baby Tyler’s

death were “Undetermined.” In his final report, however, Dr. Thompson

concluded the cause of death was “Bathtub drowning” and the manner of

death was “Homicide.” His final report indicated that in reaching these

conclusions he performed both an external and internal examination of

Baby Tyler’s body.     His report further indicated that in forming his

opinions he relied on Tyler’s statements to police.       The report stated:

“The mother claimed she had given birth the previous day in the motel

room and then placed the infant in a bathtub partially filled with water

shortly after the birth. The baby reportedly moved and cried after birth.”

      Based on Tyler’s statements to police and other evidence obtained

during the investigation, the State charged Tyler with murder in the first

degree for the death of Baby Tyler on September 28.           See Iowa Code

§§ 707.1, .2(1), .2(5). Tyler entered a plea of not guilty.

      Prior to trial, Tyler filed several motions relevant to this appeal,

including: a motion in limine to exclude Dr. Thompson’s testimony and

autopsy report opining to the cause and manner of Baby Tyler’s death; a

motion to suppress evidence obtained by police during the search of

room 225 in violation of the Fourth Amendment to the United States

Constitution and article I, section 8 of the Iowa Constitution; and a

motion to suppress Tyler’s statements to police in violation of the Fifth

and Fourteenth Amendments to the United States Constitution and

article I, section 9 of the Iowa Constitution.

      After hearings on the motions, the district court denied both of

Tyler’s motions to suppress.        On the motion to suppress evidence
                                     12

obtained by police during the search of room 225, the district court

concluded Tyler did not have a reasonable expectation of privacy in the

room because she had not intended to use the room as a residence, but

instead as a venue for the commission of an alleged crime. Thus, the

district court concluded Tyler’s Fourth Amendment rights were not

implicated. On the motion to suppress Tyler’s statements to police, the

district court concluded Tyler was not in custody at the trailer, during

the ride to the police station, or during the questioning at the police

station on September 20. As a result, the district court concluded her

Fifth Amendment rights were not violated.          The district court also

concluded the special agents’ follow-up questioning of Tyler at the

hospital did not violate her rights because the special agents informed

her of her Miranda rights and she executed a knowing, intelligent, and

voluntary waiver.

      On January 15, 2013, the district court held a hearing on Tyler’s

motion in limine to address the admissibility of Dr. Thompson’s expert

opinion on the cause and manner of Baby Tyler’s death. Tyler’s motion

requested that the district court “prohibit[] the State . . . from soliciting

or introducing any evidence from [Dr. Thompson] on his conclusions of

the truthfulness of [Tyler’s] statements that were provided to him by law

enforcement.” Tyler maintained this evidence impermissibly “passe[d] on

[her] guilt or innocence” and constituted an improper comment on her

credibility.   Tyler’s motion also requested that the district court

“prohibit[] the State . . . from soliciting or introducing any evidence from

[Dr. Thompson] as to scientific or medical opinions on the cause or

manner of death.” Tyler maintained Dr. Thompson’s opinion on these

matters “would not be based on any scientific or medical knowledge,
                                            13

scientific standards, or technical training, but merely from the witness

adopting the statements and conclusions of law enforcement.”

       At the hearing, Tyler’s counsel questioned Dr. Thompson about the

autopsy he performed and the foundation for his conclusions of the

cause and manner of Baby Tyler’s death.                     The following exchange

occurred:
            Q. Okay. So the examination includes your visual
       examination, both inside and outside of the body that you’re
       examining, correct? A. Yes, sir.
             Q. And then it also includes various . . . scientific
       tests? A. Yes, it does.
               ....
              Q. In this case, if you based your opinions speaking
       strictly on medical or scientific evidence, you were unable to
       give a conclusion as to whether or not this was a homicide,
       correct? A. Just on the autopsy findings, that would be
       correct, yes.
             Q. Okay. And also based just on the autopsy
       findings, you would be unable to determine whether or not
       this was a drowning, correct? A. That would be correct, yes.
             Q. The autopsy findings were consistent with
       intrauterine fetal demise,[4] correct? A. They could be, yes.
           Q. They could also be consistent with a baby that died
       immediately after birth, correct? A. It could be, yes.
               ....
             Q. Okay. So the specific autopsy, the testing that you
       did, the toxicology test, the examination of the lungs, all of
       the things you did, the examination of the stomach contents,
       all of that led you to an inconclusive determination,
       correct? A. That’s correct, yes.
             Q. And the only way that you reached the conclusion
       of homicide as the manner of death, as drowning as a cause
       of death, is through observing and watching the videotapes
       that the law enforcement officers supplied to you,
       correct? A. Yes, it is.
              Q. So that would be of Miss Tyler’s interview with the
       police, correct? A. That’s correct.[5]


       4Intrauterine   fetal demise, commonly referred to as a “stillbirth,” occurs when a
fetus dies in utero.
                                          14
                ....
              Q. Okay. So from that standpoint, ultimately your
       opinion as to whether or not this was a homicide . . . and
       what the cause of death was, is based entirely on your belief
       of her statements, correct? A. That’s correct, yes.
                ....
              Q. Okay. . . . [E]ssentially what you’re saying is that
       since the autopsy didn’t disprove her statement, you’re going
       to believe her statement? A. That’s correct, yes. There’s
       nothing inconsistent between what she said and what I saw
       at the autopsy.
               Q. Hypothetically speaking, if        her statement to the
       police was the baby was a stillborn,          your conclusion then
       would have had to have been stillborn         birth, natural cause of
       death, correct? A. . . . I would              probably classify as
       [stillbirth].
                ....
             Q. And that’s just because the actual medical
       examination,   medical    testing,    scientific testing is
       inconclusive? A. That’s correct, yes.

       The district court overruled Tyler’s motion in limine. In its ruling,

it noted that “in Iowa, the courts are committed to a liberal rule on the

admission of expert testimony” and that Dr. Thompson’s reliance on

Tyler’s statements to police was “no different than a physician relying on

a patient’s history in reaching a diagnosis.” Consequently, the district

court overruled Tyler’s motion in limine, “subject to [her] right to

vigorously and thoroughly cross-examine” Dr. Thompson.

       Trial in this matter commenced on February 11. The central issue

in the case was the cause of Baby Tyler’s death. Specifically, whether

Baby Tyler was born alive and survived for a sufficient period for Tyler to

drown him, or whether he was stillborn or died immediately after birth

_________________________________
       5Based   on the record, it is unclear whether Dr. Thompson listened to the audio
recording of the ride from the trailer to the police station. Testimony given by Dr.
Thompson at a deposition taken prior to the hearing on the motion in limine, at the
hearing on the motion in limine, and at trial confirms that he both viewed the video of
the interview at the police station and listened to the audio recording of the follow-up
interview at the hospital.
                                            15

such that Tyler could not drown him. The State presented, among other

evidence, testimony from Cyphers, members of the hotel staff, officers

who investigated room 225, and the special agents who interviewed Tyler.

The State also presented Tyler’s interviews at both the police station and

the hospital by way of video and audio recordings, respectively. 6

       Dr. Thompson also testified on behalf of the State.                      On direct

examination, he explained to the jury that the autopsy he conducted on

Baby Tyler involved both an external and internal examination of the

body. He explained that he found fluid in Baby Tyler’s lungs. However,

he also explained that this fluid was, at least in part, amniotic fluid. Dr.

Thompson testified that because amniotic fluid is in part composed of

water, there was no scientific basis for determining whether some of the

fluid was bathwater.          Dr. Thompson further testified that there were

indications Baby Tyler may have taken a breath because the alveoli in

the lungs were partially, although not entirely, expanded.                        He then

testified that based on this finding, and “[g]iven the history that Baby

Tyler cried and moved, . . . Baby Tyler probably took a few breaths.” Dr.

Thompson further testified that based on his findings, he was able to

rule out several possible alternative causes of death.                  He then opined

that Baby Tyler’s cause of death was “drowning,” and that his manner of

death was “homicide”—meaning “death at the hands of another

individual.”     Finally, Dr. Thompson testified that his opinions on the

cause and manner of Baby Tyler’s death were based on “a combination of

history, which includes scene findings, it includes witness statements;

it’s also based on a combination of physical exam, which is [the] autopsy

findings; and then supplemental testing.”

       6The  jury did not listen to the audio recording of the officers’ initial contact with
Tyler or the ride from the trailer to the police station.
                                    16

      On cross-examination, defense counsel called attention to the

inconclusive nature of Dr. Thompson’s autopsy findings. Counsel asked

Dr. Thompson if there was an alternative explanation for the partially

expanded alveoli in Baby Tyler’s lungs.     Dr. Thompson explained that

partially expanded alveoli would also be consistent with the production of

methane gas by bacteria found in the body after death, which “will

diffuse up into the lungs and can expand those a[l]veolar spaces.”

Counsel also questioned Dr. Thompson as to whether it was possible,

based on the autopsy, that Baby Tyler was stillborn or died immediately

after birth.    Dr. Thompson testified there were several other possible

causes of death he could not rule out based on the autopsy findings

alone. He agreed with defense counsel that it was possible Baby Tyler

died either in utero or immediately after birth. Defense counsel and Dr.

Thompson also had an exchange in which counsel pressed Dr.

Thompson on the basis for his conclusion of the cause and manner of

Baby Tyler’s death. The following exchange occurred:
            Q. Okay. It is true that you cannot say from your
      autopsy alone that the child in this case ever took a breath,
      correct? A. That’s correct, yes.
            Q. . . . For that opinion, you are entirely relying on the
      review of the interview in this case; is that correct? A. Uh,
      not necessarily, because there’s nothing inconsistent with
      what the witness statement said with the autopsy findings.
            Q. Well -- A. But without the witness statements, I
      could not have diagnosed drowning in this case.
               Q. You had conducted your autopsy, correct? A. Yes.
            Q. Your    opinion    was     undetermined      at   that
      time? A. That’s correct, yes.
            Q. And then the only way you came up with your
      decision in this case was based on the interview you
      watched? A. Yes, sir, that’s correct.
             Q. Now, you’re relying on the fact that [Tyler] said
      prior to putting the baby in the tub, the baby moved and
      cried, correct? A. Yes, sir.
                                    17

      Tyler’s defense was that her statements to police were not credible

and the product of coercion. Counsel noted that during the first half of

the interview at the police station, Tyler denied the baby cried or moved

after the birth. It was only after being interviewed for forty-five minutes

and a forty-three minute break that Tyler stated the baby cried and

moved. Tyler maintained these statements were not credible due to the

length of the interview and her need for medical care. As to her second

interview at the hospital, Tyler’s defense was that these statements were

also not credible due to her medicated and vulnerable state. Tyler also

presented a medical expert who testified in her defense. This pathologist

testified that there was not sufficient information to determine the cause

or manner of death.

      The jury found Tyler guilty of the lesser included offense of murder

in the second degree. See Iowa Code §§ 707.1, .3. Tyler appealed and we

transferred the case to the court of appeals. The court of appeals held

the district court abused its discretion in allowing Dr. Thompson to

testify to the cause and manner of Baby Tyler’s death and in admitting

the unredacted autopsy report into evidence.        The court of appeals

reasoned Dr. Thompson’s reliance on Tyler’s statements in forming his
opinions on the cause and manner of death amounted to an improper

comment on Tyler’s credibility.      It also concluded Dr. Thompson’s

opinions could not fairly be characterized as expert medical opinions.

The court of appeals further determined the erroneous admission of

Dr. Thompson’s testimony and autopsy report into evidence was

reversible error because Tyler’s credibility was the central issue in the

case. The court of appeals reversed the conviction and remanded the

case for a new trial. It did not address the remaining issues raised in the

appeal.
                                    18

      The State applied for further review, which we granted.          We will

provide additional facts in the discussion of specific issues below.

      II. Standard of Review.

      Evidentiary rulings are reviewed for an abuse of discretion. State

v. Elliott, 806 N.W.2d 660, 667 (Iowa 2011).      “ ‘An abuse of discretion

occurs “when the district court exercises its discretion on grounds or for

reasons clearly untenable or to an extent clearly unreasonable.” ’ ” State

v. Miller, 841 N.W.2d 583, 586 (Iowa 2014) (quoting Rowedder v.

Anderson, 814 N.W.2d 585, 589 (Iowa 2012)). “ ‘A ground or reason is

untenable when it is not supported by substantial evidence or when it is

based on an erroneous application of the law.’ ” State v. Redmond, 803

N.W.2d 112, 117 (Iowa 2011) (quoting Graber v. City of Ankeny, 616

N.W.2d 633, 638 (Iowa 2000)).       “Thus, under our abuse-of-discretion

standard, ‘we will correct an erroneous application of the law.’ ” Miller,

841 N.W.2d at 586 (quoting Rowedder, 814 N.W.2d at 589). “ ‘ “When

the error is not of constitutional magnitude, the test of prejudice is

whether it sufficiently appears that the rights of the complaining party

have been injuriously affected or that the party has suffered a

miscarriage of justice.” ’ ” Id. (quoting State v. Marin, 788 N.W.2d 833,

836 (Iowa 2010)).

      We review determinations of whether to suppress both evidence

obtained and statements made in violation of constitutional guarantees

de novo.   State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011); State v.

Palmer, 791 N.W.2d 840, 844 (Iowa 2010). “[W]e make ‘ “an independent

evaluation of the totality of the circumstances as shown by the entire

record,” ’ ” considering “both the evidence introduced at the suppression

hearing as well as the evidence introduced at trial.” Palmer, 791 N.W.2d

at 844 (quoting State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)); see
                                   19

also Watts, 801 N.W.2d at 850.       “ ‘We give deference to the district

court’s fact findings due to its opportunity to assess the credibility of

witnesses, but we are not bound by those findings.’ ”             Palmer, 791

N.W.2d at 844 (quoting Turner, 630 N.W.2d at 606).            In considering

whether a defendant’s statements were voluntarily given, we give

considerable weight to the district court’s findings. State v. Payton, 481

N.W.2d 325, 328 (Iowa 1992).      When the alleged error concerns the

erroneous   admission   of   evidence   in   violation   of   a   defendant’s

constitutional rights, such error is typically subject to harmless-error

analysis. See State v. Peterson, 663 N.W.2d 417, 430 (Iowa 2003).

      III. Discussion of Medical Examiner Testimony.

      In our analysis of this case, we must determine when medical

examiners may rely on witness statements and the results of police

investigations, in addition to their medical examination and findings, in

forming their opinions on cause or manner of death. We begin by setting

forth the role of expert testimony within our system of justice. Next, we

consider the duties and responsibilities of our state medical examiners.

We then consider whether medical examiners may rely on witness

statements and information obtained through police investigations in

forming their opinions on cause or manner of death. Finally, we consider

whether under the unique circumstances of this case, it was appropriate

for Dr. Thompson to opine on the cause and manner of Baby Tyler’s

death.

      A. The Role of Expert Testimony in Iowa. Iowa is generally

“committed to a liberal view on the admissibility of expert testimony.”

Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). Iowa Rule

of Evidence 5.702 allows expert opinion testimony “[i]f scientific,

technical, or other specialized knowledge will assist the trier of fact to
                                     20

understand the evidence or to determine a fact in issue.” Iowa Rule of

Evidence 5.703 provides further insight into the information experts may

rely on in forming their opinions. This rule provides:

      The facts or data in the particular case upon which an
      expert bases an opinion or inference may be those perceived
      by or made known to the expert at or before the trial or
      hearing. If of a type reasonably relied upon by experts in the
      particular field in forming opinions or inferences upon the
      subject, the facts or data need not be admissible in evidence.

Iowa R. Evid. 5.703.

      “[T]here is no requirement that the expert be able to express an

opinion with absolute certainty. A lack of absolute certainty goes to the

weight of the expert’s testimony, not to its admissibility.” Johnson v.

Knoxville Cmty. Sch. Dist., 570 N.W.2d 633, 637 (Iowa 1997) (citation

omitted). In the context of cause of death determinations, in order to be

considered by the trier of fact “ ‘it is only necessary that the witness

entertain a “reasonable degree of medical certainty” for his conclusions.’ ”

State v. Webb, 309 N.W.2d 404, 413 (Iowa 1981) (quoting Commonwealth

v. Stoltzfus, 337 A.2d 873, 879 (Pa. 1975)). “ ‘ “Whether the . . . evidence

is sufficient to warrant a finding of causal connection is initially a legal

question for the court, but whether it is persuasive beyond a reasonable

doubt is for the jury to say.” ’ ” Id. at 413–14 (quoting Stoltzfus, 337 A.2d

at 879).

      “[O]therwise admissible [opinion testimony] is not objectionable

because it embraces an ultimate issue to be decided by the trier of fact.”

Iowa R. Evid. 5.704. However, an expert may not opine as to whether a

particular legal standard has been satisfied or to “the defendant’s guilt or

innocence.”    State v. Smith, 522 N.W.2d 591, 593–94 (Iowa 1994).

Further, we have continually held that expert testimony is not admissible

merely to bolster a witness’s credibility. See State v. Dudley, 856 N.W.2d
                                      21

668, 676 (Iowa 2014) (“[W]e continue to hold expert testimony is not

admissible merely to bolster credibility.”); State v. Myers, 382 N.W.2d 91,

97 (Iowa 1986) (“[M]ost courts reject expert testimony that either directly

or indirectly renders an opinion on the credibility or truthfulness of a

witness.”). As we recently explained with respect to this rule:

       Our system of justice vests the jury with the function of
       evaluating a witness’s credibility.        The reason for not
       allowing this testimony is that a witness’s credibility “is not a
       ‘fact in issue’ subject to expert opinion.” Such opinions not
       only replace the jury’s function in determining credibility,
       but the jury can employ this type of testimony as a direct
       comment on defendant’s guilt or innocence. Moreover, when
       an expert comments, directly or indirectly, on a witness’s
       credibility, the expert is giving his or her scientific certainty
       stamp of approval on the testimony even though an expert
       cannot accurately opine when a witness is telling the truth.
       In our system of justice, it is the jury’s function to determine
       the credibility of a witness. An abuse of discretion occurs
       when a court allows such testimony.

Dudley, 856 N.W.2d at 676–77 (citations omitted) (quoting State v.

Hulbert, 481 N.W.2d 329, 332 (Iowa 1992)).           Notwithstanding, “[w]e

recognize there is a very thin line between testimony that assists the jury

in reaching its verdict and testimony that conveys to the jury that [a

witness’s] out-of-court statements and testimony are credible.”            Id. at
677.

       B. The Role of the Medical Examiner. A state medical examiner

must be “a physician and surgeon or osteopathic physician and surgeon,

. . . licensed to practice medicine in the state of Iowa, and . . . board

certified or eligible to be board certified in anatomic and forensic

pathology by the American board of pathology.”          Iowa Code § 691.5.

Forensic pathologists are physicians who specialize in forensic pathology,

meaning they received a Doctor of Medicine or a Doctor of Osteopathy,

spent at least four years in a residency program, and then spent another
                                     22

year in a forensic pathology fellowship.      See Iowa Code § 331.801(2)

(outlining requirements to serve as a county medical examiner); id.

§ 691.5 (outlining requirements to serve as a state medical examiner);

David Dolinak et al., Forensic Pathology: Principles and Practice, at xxiii

(Mark Listewnik et al. eds., 2005) [hereinafter Dolinak] (outlining

qualifications of forensic pathologists).     In certain cases, state law

requires medical examiners to investigate the cause and manner of a

death, conduct an autopsy, and prepare a written report of their findings.

See Iowa Code § 331.802(2)(a) (requiring county medical examiners to

“conduct a preliminary investigation of the cause and manner of death

[and] prepare a written report of the findings” when “a person’s death

affects the public interest”); id. § 691.6(7)–(8) (requiring the state medical

examiner to “perform an autopsy or order that an autopsy be performed”

if required by law and to “retain tissues, organs, and bodily fluids as

necessary to determine the cause and manner of death”); Iowa Admin.

Code r. 641—127.3(1), (5) (requiring county medical examiners to

“perform an autopsy or order that an autopsy be performed” in specified

cases and submit a “complete record of the findings of the autopsy . . . to

the state medical examiner’s office”).

      The administrative code defines “Cause of death” as “the disease or

injury which sets in motion the chain of events which eventually result in

the death of a person.”        Iowa Admin. Code r. 641—127.1.             The

administrative code defines “Manner of death” as “the circumstances

under which the cause of death occurred.”        Id.   The manner of death

“may be specified as . . . natural, accident, suicide, homicide,

undetermined, or pending.” Id. In this context, and as explained by Dr.

Thompson at trial, the term “homicide” means “[t]he killing of one human

being by . . . another.” Black’s Law Dictionary 734 (6th ed. 1990). The
                                           23

term “homicide” expresses no opinion as to the criminality of the killing

or the culpability of the killer. 7 See id.

       In making cause and manner of death determinations, medical

examiners conduct an autopsy, defined as “the external and internal

postmortem examination of a deceased person.”                     Iowa Admin. Code

r. 641—127.1; see Iowa Code § 691.6(7); Iowa Admin. Code r. 641—

127.3(1). Further, in making these determinations, medical examiners

routinely rely on the circumstances that surround the death, as revealed

by independent investigation, police investigation, and eyewitness

accounts.      See Iowa Code § 691.6(5) (“The duties of the state medical

examiner shall be: To conduct an inquiry, investigation, or hearing and

administer oaths and receive testimony under oath relative to the matter

of inquiry, investigation, or hearing, and to subpoena witnesses and

require the production of records, papers, and documents pertinent to

the death investigation.”); Dolinak at 4 (“Before the autopsy is

interpreted, circumstances prior to death must be considered.”); Michael

J. Shkrum & David A. Ramsay, Forensic Pathology of Trauma: Common




       7As   Black’s Law Dictionary explains:
               Homicide is not necessarily a crime. It is a necessary ingredient
       of the crimes of murder and manslaughter, but there are other cases in
       which homicide may be committed without criminal intent and without
       criminal consequences, as, where it is done in the lawful execution of a
       judicial sentence, in self-defense, or as the only possible means of
       arresting an escaping felon.
Black’s Law Dictionary at 734. Our statutes reflect this same concept. See, e.g., Iowa
Code § 707.1 (defining murder as “kill[ing] another person with malice aforethought”
(emphasis added)); id. § 707.5(1)–(2) (defining involuntary manslaughter as
“unintentionally caus[ing] the death of another person by the commission of a public
offense other than a forcible felony or escape [or] . . . by the commission of an act in a
manner likely to cause death or serious injury” (emphasis added)); id. § 707.6A(1)
(defining homicide by vehicle as “unintentionally caus[ing] the death of another by
operating a motor vehicle while intoxicated” (emphasis added)).
                                     24

Problems for the Pathologist 2 (2007) (“A complete autopsy requires the

integration of information from various investigative sources . . . .”).

      C. Reliance on Witness Statements and Information Obtained

Through Police Investigation. Whether a medical examiner may opine

on cause or manner of death when his or her opinions are based largely

on uncorroborated witness statements or information obtained through

police investigation is an issue of first impression in Iowa.              Other

jurisdictions that have considered the issue have failed to reach a

consensus.     State v. Sosnowicz, 270 P.3d 917, 923–24 (Ariz. Ct. App.

2012) (collecting cases and noting that “[t]o the extent that there is a

common thread amongst these cases, it is that the admissibility in a

criminal case of a medical examiner’s opinion regarding the manner of

death depends on the particular facts and circumstances of each case”).

We turn now to survey the authority on the issue.

      As discussed above, expert opinion testimony is admissible “[i]f

scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue.” Iowa R.

Evid. 5.702.    Thus, we must determine whether a medical examiner’s

opinion on cause or manner of death assists the trier of fact. Clearly,

such opinions can assist the trier of fact in certain circumstances.

Specifically, a medical examiner’s opinion on cause or manner of death

can help the jury determine whether the medical and scientific evidence

is consistent with a particular view of the evidence.       See State v. Dao

Xiong, 829 N.W.2d 391, 397 (Minn. 2013) (noting that medical

examiner’s opinion that the victim’s manner of death was homicide

“assisted the jury’s understanding of the medical evidence offered at trial

by explaining that the autopsy results were consistent with homicide”).
                                     25

        Notwithstanding, when a medical examiner over-relies on witness

statements or information obtained through police investigation in

forming his or her opinions on cause or manner of death, such opinions

may not assist the trier of fact. Numerous jurisdictions have held that

when a medical examiner bases his or her opinions on cause or manner

of death largely on statements of lay witnesses or information obtained

through police investigation, such opinions are inadmissible under rules

similar to our rule 5.702. Iowa R. Evid. 5.702; see, e.g., Sosnowicz, 270

P.3d at 922 (noting that “it does not appear that [the medical examiner]

relied on any ‘specialized knowledge’ to classify the death as a ‘homicide’

rather than an ‘accident’ ” when the medical examiner “based his

conclusion that the death was a homicide on the circumstances reported

to him by the police”); Maxwell v. State, 414 S.E.2d 470, 473–74 (Ga.

1992) (holding “[t]he medical examiner should not have been permitted to

testify as to his conclusion or opinion of the manner of death” when “his

opinion that the manner of death was due to homicide was based entirely

upon the circumstances surrounding [the victim’s] demise as related to

him by a detective working on the case” because “his expertise as a

forensic   pathologist   was   not   needed   or   used    in   reaching   that

conclusion”), overruled on other grounds by Wall v. State, 500 S.E.2d 904,

907 (Ga. 1998); People v. Perry, 593 N.E.2d 712, 716 (Ill. App. Ct. 1992)

(noting “[the pathologist’s] opinion as to homicide, caused by the

defendant’s body being positioned on top of her sleeping son, did not in

any way add to the evidence already presented to the jury or assist them

in reaching their own conclusions,” but upholding the conviction because

error   was   harmless);   State v. Vining, 645     A.2d    20, 20–21      (Me.

1994) (concluding “the medical examiner’s opinion that [the victim’s]

death was a homicide was not a product of her expertise” and “amounted
                                    26

to an assessment of the credibility and investigatory acumen of the

police” when “[she] conceded that there was no physical evidence that

[the victim’s] death had been caused by a human agent as opposed to an

accidental fall”); State v. Jamerson, 708 A.2d 1183, 1189, 1195 (N.J.

1998) (holding a forensic pathologist’s opinion that a car crash was a

homicide as opposed to an accident was inadmissible because his

opinion was based on “circumstances leading up to the accident that

were within the understanding of the average juror,” such that his

opinion “could not be of assistance to the jury”); People v. Eberle, 697

N.Y.S.2d 218, 219 (App. Div. 1999) (holding a medical expert’s opinion

that an infant’s death was caused by “homicidal suffocation” as opposed

to sudden infant death syndrome was inadmissible when “the results of

the autopsy equally supported two possible causes of death” because her

opinion was not based on the medical evidence, but rather on her review

of “statements by defendant and other individuals” (internal quotation

marks omitted)); Bond v. Commonwealth, 311 S.E.2d 769, 772 (Va.

1984) (“The ultimate question was whether the decedent jumped

intentionally, fell accidentally, or was thrown to her death. The facts and

circumstances shown by the testimony of lay witnesses were sufficient to
enable a jury to decide that question. The expert’s opinion was based

largely, if not entirely, upon the same facts and circumstances.”). These

cases generally stand for the proposition that when a medical examiner’s

opinion on cause or manner of death is based largely on statements of

lay witnesses or information obtained through police investigation, such

opinions are not sufficiently based on scientific, technical, or specialized

knowledge that would assist the jury in weighing the evidence.

      For example, in Sosnowicz, the defendant was accused of running

over the victim with his Hummer. 270 P.3d at 919. At trial, the medical
                                    27

examiner testified that based on his autopsy of the victim’s body, the

cause of death was “blunt force trauma.” Id. at 921. He also testified

that based on the autopsy and information he received from police

regarding the circumstances surrounding the victim’s death, the manner

of death was “homicide.”      Id.   He explained that in reaching his

conclusion on the manner of death he determined the circumstances of

the victim’s death as reported to him by police were consistent with his

autopsy findings and that those circumstances were consistent with

homicide. Id.

      In concluding the medical examiner’s testimony was inadmissible

under Arizona Rule of Evidence 702, the Court of Appeals of Arizona

reasoned:

      [I]t does not appear that [the medical examiner] relied on any
      “specialized knowledge” to classify the death as a “homicide”
      rather than an “accident.” Under cross-examination, [he]
      agreed with defense counsel that he based his conclusion
      that the death was a homicide on the circumstances
      reported to him by the police. Indeed, [he] was in no better
      position to determine the manner of death than was the jury
      who heard the actual trial testimony of witnesses and had
      the opportunity to evaluate their credibility.

Id. at 922–23.

      In Vining, the victim “died after falling over backwards and hitting

his head on a cement floor.” 645 A.2d at 20. The victim was intoxicated

at the time. Id. At trial, an eyewitness who was also intoxicated at the

time of the incident testified that the defendant and the victim were in a

fight at the time of the fall and that the defendant was standing in front

of the victim when the victim fell. Id. However, the eyewitness did not

actually see the defendant push the victim.      Id.   “The State Medical

Examiner testified that although there was no physical evidence from

[the victim’s] body that would allow her to determine whether [the victim]
                                     28

fell or was pushed, she concluded based on her conversations with the

police investigators that [the victim’s] death was a homicide.” Id.

      In concluding the medical examiner’s opinion that the victim’s

death was a homicide was inadmissible, the Supreme Court of Maine

reasoned:

      [T]he medical examiner’s opinion . . . was not a product of
      her expertise. The medical examiner conceded that there
      was no physical evidence that [the victim’s] death had been
      caused by a human agent as opposed to an accidental fall.
      Her opinion was based solely on her discussions with the
      police investigators and therefore amounted to an
      assessment of the credibility and investigatory acumen of the
      police. The credibility of witnesses is the exclusive province
      of the jury.
             . . . [T]he State argues that “[the medical examiner’s]
      opinion assisted the jury in determining whether [the victim’s]
      fatal injuries resulted from accidentally falling backwards off
      his chair onto the floor or from the severe force applied by
      another person.” That argument begs the issue. It is
      appropriate for the medical examiner to testify, as she did,
      that the damage to the skull shows that severe force was
      applied. It is another thing entirely, however, to testify that
      although the physical evidence was insufficient for her to
      distinguish whether [the victim] fell or was pushed, the police
      investigators have convinced her that [the victim’s] death was
      a homicide. That is not an expert medical opinion.

Id. at 20–21 (footnote omitted)(citation omitted).

      In Eberle, a case closely analogous to the present case, a medical

examiner testified that an infant victim’s cause of death was “homicidal

suffocation.”   297 N.Y.S.2d at 219 (internal quotation marks omitted).

However, she admitted “there were no medical findings to explain the

death of the infant” and that “the results of the autopsy equally

supported two possible causes of death, i.e., suffocation and Sudden

Infant Death Syndrome (SIDS).” Id. Additionally, she stated that “her

opinion that the death was caused by homicidal suffocation rather than
                                    29

SIDS was not based on medical evidence but rather . . . on her review of

statements by defendant and other individuals.” Id.

      In concluding the medical examiner’s opinion concerning cause

and manner of death was inadmissible, the Supreme Court, Appellate

Division, of New York reasoned:

      [T]he opinion of the . . . expert was not based on professional
      or medical knowledge but rather was based on inferences
      and conclusions drawn from various statements presented to
      her by the police. It is, however, for the jury to determine
      whether to credit such statements and to determine the
      inferences to be drawn therefrom. . . . Because the jury was
      able to comprehend the issues and evaluate the evidence,
      the expert’s opinion, which intruded on the province of the
      jury to draw inferences and conclusions from that evidence,
      was improperly admitted.

Id. (citation omitted).

      The State asserts the weight of out-of-state authority supports a

more liberal approach regarding the admissibility of medical examiner

opinions on cause or manner of death under rule 5.702. Iowa R. Evid.

5.702; see, e.g., Baraka v. Commonwealth, 194 S.W.3d 313, 314–16 (Ky.
2006) (holding the trial court did not abuse its discretion in admitting a

medical examiner’s opinion that the victim’s manner of death was

homicide when the medical examiner’s opinion was “based, in part, on

disputed information regarding the circumstances of the victim’s death

that was provided to her by police”); Rollins v. State, 897 A.2d 821, 849,

851–52 (Md. 2006) (holding a medical examiner’s opinion that the victim

was “smothered” was admissible when her opinion was based, in part, on

witness statements and information provided by police), abrogated on

other grounds as recognized by Derr v. State, 29 A.3d 533, 548–49 (Md.

2011); Dao Xiong, 829 N.W.2d at 397–98 (holding the trial court did not

err in admitting a medical examiner’s testimony that the victim’s manner

of death was “homicide” when the medical examiner’s opinion “was based
                                    30

on [his] examination of [the victim’s] body”); State v. Bradford, 618

N.W.2d 782, 790, 793 (Minn. 2000) (holding a medical examiner’s

testimony that the victim’s death was a “homicide” was admissible

because the “testimony was helpful to the jury” and assisted it in

“differentiat[ing] between a self-inflicted intraoral gunshot wound and

one inflicted by another”); State v. Wilson, 248 P.3d 315, 323–25 (N.M.

2010) (holding the trial court did not abuse its discretion in admitting a

medical expert’s testimony that the victim’s death was “consistent with

smothering” when the expert “considered several sources of information

when forming his opinion, including the medical record and the autopsy

report, as well as Defendant’s confession and the police report”),

overruled on other grounds by State v. Tollardo, 275 P.3d 110, 121 (N.M.

2012); State v. Commander, 721 S.E.2d 413, 420 (S.C. 2011) (“Because

the anecdotal history is an essential component of any autopsy, we find

testimony concerning findings based on this information falls within the

umbrella of the expert’s specialized knowledge.”); State v. Boyer, 741

N.W.2d 749, 757 (S.D. 2007) (holding a forensic pathologist’s testimony

that the victim’s manner of death was “homicide” was admissible when

his conclusion was “based on [his] interview with the law enforcement

officers that were investigating the death and . . . the autopsy findings”);

State v. Richardson, 603 A.2d 378, 379 (Vt. 1992) (holding, in a case

where the defendant did not raise a rule 702 argument, a medical

examiner’s testimony that the victim’s death was a “homicide” did not

impermissibly state a legal conclusion concerning the defendant’s guilt

because the jury “still had to decide the ultimate question of whether

defendant was at all involved in the homicide”); State v. Scott, 522 S.E.2d

626, 632 (W. Va. 1999) (holding, in a case where the defendant did not

raise a rule 702 argument, a medical examiner’s testimony that the
                                          31

victim’s death was a “homicide” did not impermissibly state a legal

conclusion concerning the defendant’s guilt). However, unlike the cases

discussed above, in many of the cases cited by the State the medical

experts based their opinions primarily on the autopsy results, as

opposed to witness statements or other information provided by police.

       For example, in Dao Xiong, the Supreme Court of Minnesota

approved the admission of a medical examiner’s testimony that the

manner of death of a victim of a gunshot wound to the abdomen was

homicide.     829 N.W.2d at 394–95, 98.             In concluding the testimony

would assist the jury, the court noted that the medical examiner based

his opinion on his “examination of [the victim’s] body.” 8                Id. at 397.


        8The extent to which the medical examiner in Dao Xiong relied on witness

statements or information provided by police in forming his opinion on manner of death
is somewhat unclear. However, in approving the medical examiner’s testimony, the Dao
Xiong court compared the case to its earlier Bradford decision in which the medical
examiner based his manner-of-death opinion primarily on his examination of the
victim’s body. See Dao Xiong, 829 N.W.2d at 397 (“[I]n . . . Bradford, we concluded that
no error was committed when the district court admitted a medical examiner’s expert
testimony that, based on his autopsy of the victim’s body, the victim’s manner of death
was homicide rather than suicide.”). This suggests the medical examiner in Dao Xiong
based his opinion largely on his examination of the victim’s body.
       The court further noted that Dao Xiong was unlike its prior decision Hestad v.
Pennsylvania Life Insurance Co., 204 N.W.2d 433, 436 (Minn. 1973). See Dao Xiong,
829 N.W.2d at 397. There, the trial court excluded testimony from a coroner who
would have testified on behalf of the defendant that an individual’s cause of death was
carbon monoxide poisoning and manner of death was accident, as opposed to suicide.
Hestad, 204 N.W.2d at 435. In concluding the coroner’s opinion was inadmissible, the
Minnesota Supreme Court noted the coroner based his opinion largely “on information
received from the sheriff.” Id. at 436. As a result, “the medical expert did not . . .
possess[] any peculiar knowledge or ability to assist the jury in the determination of
whether the death was accidental or suicide.” Id. Thus, the Dao Xiong court’s effort to
distinguish Hestad further suggests the medical examiner in Dao Xiong based his
opinion largely on his examination of the victim’s body.
        The Dao Xiong court did note that subsequent decisions of the court
“establish[ing] that expert testimony regarding the victim’s manner of death can be
helpful to the jury” have somewhat limited the scope of Hestad’s holding. Dao Xiong,
829 N.W.2d at 397. However, the court did not overrule Hestad or hold medical
examiners may testify to cause or manner of death irrespective of the extent to which
they base such opinions on witness statements or information provided by police. Id.
                                           32

Bradford similarly involved a medical examiner’s opinion that appears to

have been primarily based on the autopsy. 9 See 618 N.W.2d at 790; see

also Sosnowicz, 270 P.3d at 923 (“Bradford, however, is inapposite

because the pathologist’s opinion . . . appears to have been based on his

external and internal examination of the victim rather than a history

provided to him by law enforcement investigators.”); Dao Xiong, 829

N.W.2d at 397 (“[I]n . . . Bradford, we concluded that no error was

committed when the district court admitted a medical examiner’s expert

testimony that, based on his autopsy of the victim’s body, the victim’s

manner of death was homicide rather than suicide.” (emphasis added)).

Likewise, the expert in Rollins relied largely on the autopsy in concluding

the victim’s cause of death was “asphyxiation” and manner of death was

“smothering.” 10 See 897 A.2d at 849–50.



       9The    Bradford court described the basis of the medical examiner’s opinion as
follows:
              The medical examiner who performed an autopsy on [the victim’s]
       body noted a single intraoral gunshot wound with an exit wound on the
       back of her neck. The examiner concluded that [the victim] died from the
       gunshot wound. He also observed numerous bruises on [the victim’s]
       scalp, left eye, ear, face, abdomen, hands, feet, arms, and legs and
       abrasions on her left eye, back, shoulders, buttocks, and knees. The
       examiner concluded that the injury to [the victim’s] left eye was
       consistent with her having been struck with a fist.
618 N.W.2d at 790.
       10The expert in Rollins did not base her opinion primarily on witness statements
or information provided by police, but also relied on evidence of physical injuries on the
victim indicating there had been an altercation and other physical findings consistent
with smothering. See 897 A.2d at 848. Specifically, she noted:
       There was a hemorrhage in her mouth where it shouldn’t be, indicating
       pressure on the mouth, hemorrhage, bleeding. That is indicative of
       smothering, pressure to the mouth in some manner from an external
       force, be it a hand, be it a pillow, something pushing on her mouth. . . .
               In addition, there are other injuries on her that you can’t ignore
       also. They might not be part of the exact smothering but it is part of the
       injury that you have to take into consideration. Of course smothering is
       holding something over the mouth. Just because I have bruises in my
                                         33

       In Baraka, a fight between the defendant and the victim allegedly

caused the victim to have a fatal heart attack. 194 S.W.3d at 314. A

medical examiner testified the victim’s cause of death was heart attack

and manner of death was “homicide.” Id. The defendant asserted the

medical examiner’s testimony regarding manner of death did not assist

the jury because it was “based, in part, on disputed information

regarding the circumstances of the victim’s death that was provided to

her by police.”     Id.   In concluding the testimony was admissible, the

Supreme Court of Kentucky observed that “it is axiomatic that a

determination of the cause and manner which led to a person’s death is

generally scientific in origin and outside the common knowledge of

layperson jurors.” Id. Accordingly, the court concluded the testimony,

based in part on information provided by police, assisted the jury. Id.

       Three of seven justices concurred.              Id. at 320 (Cooper, J.,

concurring).    In summarizing the state of the law concerning medical

examiner opinions on manner of death, the concurrence noted,

       [M]ost jurisdictions that have addressed the issue hold that
       a qualified expert can express an opinion that the manner of
       a disputed death was homicide, i.e., that the death of one
       person was due to an act or omission of another, as opposed
       to natural causes or suicide, though not that the homicide
       was intentional, wanton, reckless, or accidental, which
       would constitute an opinion as to the guilt or innocence of
       the defendant.

Id. at 318. However, the concurrence also noted,


_________________________________
       arms doesn’t mean that I’m smothered. But she does have bruises on
       her arms as I stated. So she has additional injuries.
Id.
        The expert also relied on witness statements and other information provided by
police, namely that the house in which the incident occurred was recently ransacked;
however, she expressly noted her physical findings indicated asphyxiation and
smothering. Id. at 849.
                                    34
            The consensus of these cases is that an expert medical
      examiner or forensic pathologist can express an opinion not
      only as to the cause of death, but also that the manner of
      death was homicide . . . where such would not be readily
      ascertainable by a layperson, thus would assist that trier of
      fact in determining a fact in issue. However, the expert
      cannot express an opinion as to the mental state of the
      accused which would constitute an expression as to guilt or
      innocence, and cannot base the opinion solely on facts that
      are just as easily understood by a layperson.

Id. at 319 (emphasis added).

      Two of seven justices dissented.       Id. at 324 (Johnstone, J.,

dissenting). The dissent concluded the medical examiner exceeded the

scope of her expertise and that her testimony did not assist the jury. Id.

at 321. The dissent explained,

      The jury did not require expert testimony to determine
      whether the altercation between [the victim] and [the
      defendant] was highly emotional; testimony from the
      investigating officers and the 911 recording would have been
      sufficient evidence upon which the jury could base an
      informed decision. Likewise, [the medical examiner’s] expert
      opinion was unnecessary to an intelligent determination as
      to whether [the victim] did or did not perceive a physical
      threat that would induce stress. This question does not
      require specialized knowledge beyond the understanding of
      the average juror.

Id. at 321. Ultimately, five of seven justices agreed that, depending on

the extent to which experts base their opinions on facts just as easily

understood by laypersons, there is a point when such opinions do not

assist the jury. The justices disagreed on when the line is crossed.
      In Boyer, “[t]he issue . . . was whether [a nineteen-month-old

victim’s] injuries were either accidental from falling down the stairs or

the subject of homicide from being thrown to the floor.” 741 N.W.2d at

751–52, 756. A forensic pathologist testified the manner of death was

homicide because the likelihood the victim’s “injuries occurred as a

result of falling down a flight of stairs was extremely small.” Id. at 756–
                                             35

57. While the pathologist in that case did base his opinion in part on

information provided to him by police, there is no indication the

information formed a substantial basis of his opinion. See id. at 757.

Instead, the pathologist’s opinion appears to have been primarily based

on the fact that the victim’s injuries were simply not consistent with an

accident or suicide. See id. (“[T]he autopsy findings . . . suggested that

natural disease certainly was not an option in this case nor was suicide

an option in this case”).

       One of the State’s strongest cases is Commander. 721 S.E.2d 413.

There, a victim’s “family members discovered [her] mummified and

partially decomposed body covered by a blanket and lying on a sofa

inside her home.”         Id. at 415 (footnote omitted). Despite the fact that

“the autopsy did not uncover any evidence of violence or trauma to [the]

[v]ictim’s body,” a medical examiner opined the cause of death was

asphyxiation and the manner of death was homicide “due to the

suspicious nature of [the] [v]ictim’s death.” Id. He based his opinion in

part on anecdotal evidence provided to him by police concerning the

scene of the incident, coupled with the absence of typical indicators of

physical violence. 11 Id.

       In concluding the medical examiner’s opinion was admissible, the

Supreme Court of South Carolina concluded that “[b]ecause the

anecdotal history is an essential component of any autopsy, . . .


       11In   explaining the basis for his opinion, the medical examiner stated,
       “I believe [the] [v]ictim died of unnatural causes. And as a result of
       elimination [of other manners of death], and like you mentioned, the
       interpolation of the facts of the case, that being her purse is gone, her
       car is gone, the house is locked up and somebody went through an awful
       lot of effort to cover up this death, that I feel that [the] v[ictim] died as a
       result of homicide due to asphyxiation.”
Commander, 721 S.E.2d at 416 (third alteration in original) (footnote omitted).
                                         36

testimony concerning findings based on this information falls within the

umbrella of the expert’s specialized knowledge.” Id. at 420. However, the

court also acknowledged that “in certain circumstances, expert medical

testimony of this type has the potential to invade the province of the

jury” and distinguished the facts of the case from cases in which the

expert “base[d] his opinion exclusively on the circumstantial information

provided by the police officers at the scene.” Id. at 420 & n.11.

       Having surveyed the authority on the issue, we conclude there are

circumstances when a medical examiner’s opinions on cause or manner

of death may assist the jury, even when such opinions are based in part

on   witness     statements     or   information      obtained     through     police

investigation. 12 However, our review of the caselaw confirms there is no

bright-line rule for determining whether a medical examiner may opine

on cause or manner of death when his or her opinions are based, in

whole or in part, on such information.              Instead, whether a medical

examiner’s opinion on cause or manner of death is admissible depends

on the particular circumstances of each case.              For example, when a

medical examiner bases his or her opinion of cause or manner of death

largely on witness statements or information obtained through police
investigation, such opinions would ordinarily be inadmissible under rule

5.702 because they would not assist the trier of fact. See Iowa R. Evid.

5.702; see also, e.g., Sosnowicz, 270 P.3d at 922; Maxwell, 414 S.E.2d at

473–74; Perry, 593 N.E.2d at 716; Vining, 645 A.2d at 20–21; Jamerson,

708 A.2d at 1195; Eberle, 297 N.Y.S.2d at 219; Bond, 311 S.E.2d at 771–


       12We note that this case does not present an issue of whether an expert witness
may rely on facts or data not in evidence under rule 5.703. See Iowa R. Evid. 5.703.
Here, the facts and data relied on by Dr. Thompson were ultimately admitted into
evidence. Thus, insofar as rule 5.703 is concerned, Dr. Thompson could rely on such
information. See id.
                                    37

72. In contrast, when a medical examiner bases his or her opinion on

cause or manner of death primarily on the autopsy, such opinions will

likely assist the jury in understanding the evidence and would ordinarily

be admissible. See Iowa R. Evid. 5.702; see also, e.g., Rollins, 897 A.2d

at 848–49, 851–52; Dao Xiong, 829 N.W.2d at 397–98; Bradford, 618

N.W.2d at 790, 793; Boyer, 741 N.W.2d at 757.

      D. Dr.   Thompson’s     Testimony. We      turn   now   to   consider

whether it was appropriate for Dr. Thompson to opine on the cause and

manner of Baby Tyler’s death.            First, we consider whether Dr.

Thompson’s opinions were sufficiently based on “scientific, technical, or

other specialized knowledge” so as to “assist the trier of fact to

understand the evidence or to determine a fact in issue.” Iowa R. Evid.

5.702. Second, we consider whether under the unique facts of this case,

Dr. Thompson’s opinions amounted to an impermissible comment on

Tyler’s credibility. See Dudley, 856 N.W.2d at 676. We address each of

these points in turn.

      First, we conclude Dr. Thompson’s opinions on the cause and

manner of Baby Tyler’s death were not sufficiently based on scientific,

technical, or other specialized knowledge so as to assist the jury. Rather,

Dr. Thompson admitted that his opinions on the cause and manner of

Baby Tyler’s death were based primarily, if not exclusively, on Tyler’s

inconsistent and uncorroborated statements to police, as opposed to

objective medical findings. The central issue in this case was whether

Baby Tyler was born alive and survived for a sufficient period of time for

Tyler to drown him, or whether he was stillborn or died immediately after

birth such that Tyler could not have drowned him. Without the benefit

of objective medical findings, Dr. Thompson testified to the ultimate

issues of fact questions for the jury to determine.     Clearly, a medical
                                    38

examiner could testify concerning the medical signs of drowning,

whether the autopsy findings were consistent with drowning, whether

there were other possible causes of death, whether he or she could rule

out other possible causes of death, and whether he or she could

legitimately render definitive opinions on cause or manner of death.

Much of Dr. Thompson’s testimony assisted the jury in these respects.

However, the record in this case does not support the conclusion that Dr.

Thompson relied on scientific, technical, or other specialized knowledge

to classify the cause of Baby Tyler’s death as bathtub drowning or the

manner of his death as homicide, rather than undetermined. Instead,

the record established Dr. Thompson’s opinions were based primarily, if

not exclusively, on Tyler’s inconsistent and uncorroborated statements to

police.

      After performing the autopsy and pathology examination, Dr.

Thompson’s opinions on the cause and manner of Baby Tyler’s death

were undetermined.       In his final report, however, Dr. Thompson

concluded the cause of death was bathtub drowning and the manner of

death was homicide. His final report clearly indicated that in forming his

opinions he relied on Tyler’s statements to police. His report stated: “The

mother claimed she had given birth the previous day in the motel room

and then placed the infant in a bathtub partially filled with water shortly

after the birth. The baby reportedly moved and cried after birth.” At the

hearing on the motion in limine, Dr. Thompson agreed with defense

counsel that based on the autopsy, he was unable to reach a conclusion

on both the cause and manner of Baby Tyler’s death. He admitted the

only way he reached his final opinions was by reference to Tyler’s

statements to police during her interview at the police station.
                                    39

      At trial, Dr. Thompson testified on direct examination that there

was nothing inconsistent with his autopsy findings and the State’s theory

that Baby Tyler was born alive and survived for a sufficient period for

Tyler to drown him. Based on his physical examination of Baby Tyler’s

body, he ruled out several possible alternative causes of death.        He

further testified that there were indications Baby Tyler may have taken a

breath because the alveoli in the lungs were partially, although not

entirely, expanded. He then opined, “given the history that Baby Tyler

cried and moved . . . Baby Tyler probably took a few breaths.” He further

opined the cause of death was drowning and the manner of death was

homicide. On cross-examination, defense counsel pressed Dr. Thompson

on the basis for his conclusions.     Ultimately, Dr. Thompson testified

there were several other possible causes of death he could not rule out

based on the autopsy.      He explained that partially expanded alveoli

would also be consistent with the production of methane gas by bacteria

found in the body after death, which “will diffuse up into the lungs and

can expand those a[l]veolar spaces.” He agreed with defense counsel that

it was possible Baby Tyler died either in utero or immediately after birth.

He then stated, “without the witness statements, I could not have

diagnosed drowning in this case.”

      Thus, the record shows Dr. Thompson’s opinions that the cause of

death was drowning and manner of death was homicide were not based

on scientific, technical, or other specialized knowledge.   Iowa R. Evid.

5.702.   Instead, the record shows that absent Tyler’s statements, Dr.

Thompson would have been unable to render definitive opinions on both

cause of death and manner of death.        Further, the record does not

support the conclusion that Dr. Thompson relied on any other

corroborating evidence, aside from Tyler’s statements, in reaching his
                                    40

opinions on cause or manner of death. Dr. Thompson did testify that his

opinions were based on “a combination of history, which includes scene

findings [and] witness statements,” in addition to “[the] autopsy findings .

. . and . . . supplemental testing.” However, he did not explain how the

scene findings or other objective information factored into his opinions.

In fact, the record is devoid of any such objective evidence. Instead, he

admitted Tyler’s statements to police were the but-for factor in rendering

his opinion. Consequently, Dr. Thompson’s opinions on the cause and

manner of death were not sufficiently based on scientific, technical, or

other specialized knowledge as required by our rules.        Iowa R. Evid.

5.702. He was in no better position to determine the cause or manner of

death than were the members of the jury who watched and listened to

Tyler’s interviews with the special agents and had the opportunity to

evaluate her credibility. His opinions on cause and manner of death did

not assist the trier of fact and were therefore inadmissible under rule

5.702.

      This case closely resembles cases from other jurisdictions in which

courts have excluded medical examiner testimony for similar reasons.

As discussed above, in those cases the medical examiner performed an

autopsy, was unable to render an opinion on cause or manner of death,

and then after review of witness statements or information obtained

through police investigation, rendered an opinion based largely on that

information. See, e.g., Sosnowicz, 270 P.3d at 922; Maxwell, 414 S.E.2d

at 473–74; Perry, 593 N.E.2d at 714; Vining, 645 A.2d at 20–21;

Jamerson, 708 A.2d at 1189–90, 1195; Eberle, 297 N.Y.S.2d at 219;

Bond, 311 S.E.2d at 772. This is not a case where the medical examiner

simply considered witness statements or information obtained from

police, but based his or her opinions primarily on the physical evidence.
                                    41

See, e.g., Rollins, 897 A.2d at 848–49, 851–52; Dao Xiong, 829 N.W.2d at

397–98; Bradford, 618 N.W.2d at 790, 793; Boyer, 741 N.W.2d at 757.

Nor is it a case where the medical examiner relied on information fairly

characterized as “anecdotal.” See, e.g., Commander, 721 S.E.2d at 415.

Instead, Dr. Thompson’s opinions on the cause and manner of Baby

Tyler’s death were based primarily, if not exclusively, on Tyler’s

inconsistent and uncorroborated statements to police.

      We also conclude that under the unique facts of this case, Dr.

Thompson’s opinions were inadmissible because they amounted to an

impermissible comment on Tyler’s credibility.       As discussed above, an

expert witness cannot comment, directly or indirectly, on a witness’s

credibility.   See Dudley, 856 N.W.2d at 676–77.          We prohibit such

opinions because they “not only replace the jury’s function in

determining credibility, but the jury can employ this type of testimony as

a direct comment on defendant’s guilt or innocence.” Id. We recently

addressed the application of this rule in three child sex-abuse cases.

      In Dudley, we held an expert who opined that a child victim’s

“physical manifestations and symptoms were consistent with a child

dealing with and suffering from sexual abuse trauma” impermissibly

commented on the child’s credibility. Id. at 677–78. We reasoned that

when an expert testifies that the child’s physical manifestations or

symptoms are consistent with sexual abuse trauma, “the expert is saying

these symptoms mean the child suffered a sexual abuse trauma;

therefore, the child must be telling the truth when he or she relates his

or her story to the jury.” Id. at 677. In Dudley, we also held another

expert   impermissibly   commented       on   the    child’s   credibility   in

communicating to the jury that she recommended the child receive

therapy and stay away from the defendant.       Id. at 678.     Because she
                                     42

based these recommendations on her belief that the defendant had

sexually abused the victim as was related to her by the victim, we

concluded the expert necessarily communicated to the jury that she

believed the victim’s story. Id. at 673, 678.

      In State v. Brown, 856 N.W.2d 685, 688–89 (Iowa 2014), we held

an expert impermissibly opined on a child victim’s credibility when the

expert’s report stated the victim communicated to the expert that the

defendant had inappropriately touched her and the expert believed “ ‘this

disclosure [to be] significant and that an investigation [was] clearly

warranted.’ ” We reasoned this final statement “indirectly convey[ed] to

the jury that [the victim was] telling the truth about the alleged abuse

because the authorities should conduct a further investigation into the

matter.” Id. at 689.

      Finally, in State v. Jaquez, 856 N.W.2d 663, 665 (Iowa 2014), we

held an expert crossed the line in testifying that a child victim’s

demeanor was “ ‘completely consistent with a child who has been

traumatized, particularly multiple times.’ ” We concluded this testimony

indirectly vouched for the child’s credibility because the expert was in

effect saying the child’s “demeanor means the child suffered a sexual

abuse trauma, therefore, the child must be telling the truth.” Id.

      An analogous situation occurred here.           Tyler made various

inconsistent statements to the special agents regarding whether Baby

Tyler was born alive. During the ride from the trailer to the police station

and for the first half of the three-hour interview at the police station, she

told the special agents that after Baby Tyler was born he was silent, he

did not move, and she immediately placed him in the garbage can. After

the special agents interviewed her for over an hour and a half, Tyler then

stated that after Baby Tyler was born he moved and cried and she placed
                                          43

him in the bathtub and turned the water on for the purpose of drowning

him. There is no additional objective evidence indicating Baby Tyler was

born alive.     Therefore, aside from Dr. Thompson’s opinions, Tyler’s

statements to police were the only evidence presented to the jury

showing whether Baby Tyler was born alive. Dr. Thompson’s opinions

that the cause of death was bathtub drowning and the manner of death

was homicide were based primarily, if not exclusively, on Tyler’s

statements.     Significantly, Dr. Thompson did not credit Tyler’s initial

statements to police that after Baby Tyler was born he was silent and did

not move. 13 Instead, he selectively credited her statements during the

second half of the interview when she stated Baby Tyler was born alive

and described her actions after the birth. It is clear that if Tyler never

stated Baby Tyler was born alive, Dr. Thompson could not have opined

that the cause of death was drowning or that the manner of death was

homicide.      Thus, in opining on cause and manner of death, Dr.

Thompson necessarily credited one version of Tyler’s story over another.

He at least indirectly communicated to the jury that he believed Tyler’s

statements when he stated on direct examination, “given the history that

Baby Tyler cried and moved . . . Baby Tyler probably took a few breaths.”
As a result, Dr. Thompson’s opinions on the cause and manner of death

crossed that very thin line between testimony that assists the trier of fact

and testimony that vouches for a witness’s credibility.

       Finally, for similar reasons, we have serious doubts as to whether

Dr. Thompson possessed a reasonable degree of medical certainty with

respect to his opinions on the cause and manner of Baby Tyler’s death.


       13In fairness to Dr. Thompson, police may not have provided him with the audio
recording of the ride from the trailer to the police station in which Tyler stated Baby
Tyler did not cry or move after the birth.
                                           44

Again, the record showed that after conducting the autopsy, Dr.

Thompson was unable to reach an opinion on cause or manner of death.

He then watched Tyler’s interview with police and changed his opinion.

By his own admission, he was only able to determine to a reasonable

degree of forensic or medical certainty that Baby Tyler’s cause and

manner of death were undetermined.                  For all of these reasons, the

district court abused its discretion in allowing Dr. Thompson to

communicate his opinions concerning the cause and manner of Baby

Tyler’s death to the jury. 14

       E. Summary. In reaching the above conclusion, we do not create

a bright-line rule to govern every criminal case in which a medical

examiner is called to testify to a victim’s cause or manner of death. Nor

do we conclude medical examiners may never rely in part on witness

statements or information obtained from police in forming their opinions.

In this case, however, Dr. Thompson conceded he was unable to form an

opinion on the cause or manner of Baby Tyler’s death based on the

autopsy and his investigation. Instead, he based his opinions primarily,

if not exclusively, on Tyler’s inconsistent and uncorroborated statements

to police.     Without her statements, crediting some and discounting

       14“Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected . . . .” Iowa R. Evid. 5.103. “In cases
of nonconstitutional error, we start with the presumption that the substantial rights of
the defendant have been affected. The State has the burden to affirmatively establish
the substantial rights of the defendant were not affected.” Dudley, 856 N.W.2d at 678
(citation omitted); accord State v. Howard, 825 N.W.2d 32, 41–42 (Iowa 2012). While
the State makes a passing reference to harmless error in its brief, in context, it is clear
the State is not arguing harmless error in this case. The State failed to cite any
authority in support of this issue and did not argue this in its application for further
review or at oral argument. Therefore, the State has waived the issue of harmless error
on appeal. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an
issue may be deemed waiver of that issue.”); Dudley, 856 N.W.2d at 678 (finding the
State waived a harmless-error argument by failing to raise it on appeal); In re Det. of
Blaise, 830 N.W.2d 310, 320–21 (Iowa 2013) (acknowledging that the State waives a
harmless-error argument by failing to raise it on appeal).
                                           45

others, Dr. Thompson could not have offered an opinion on the critical

issue in this case: whether Baby Tyler was born alive. His opinions were

not sufficiently based on scientific, technical, or other specialized

knowledge and therefore did not assist the trier of fact. Iowa R. Evid.

5.702.    Further, under the unique facts of this case, Dr. Thompson

indirectly vouched for Tyler’s credibility.              Because Dr. Thompson’s

opinions on these matters failed to comply with our evidentiary rules, we

vacate the decision of the court of appeals, reverse the conviction, and

remand the case for a new trial.

       IV. Other Issues on Appeal.

       Tyler raised other issues in this appeal.              While not dispositive,

these issues may form the basis for a subsequent appeal. Therefore, we

elect to address them as part of this appeal.               Specifically, we address

whether the search of room 225 violated the Fourth Amendment to the

United States Constitution and whether the special agents’ various

questionings of Tyler violated the Fifth and Fourteenth Amendments to

the United States Constitution. 15

       A. Search of the Hotel Room. The Fourth Amendment to the

United States Constitution provides: “The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable

       15In district court, Tyler cited the Federal Constitution and the Iowa Constitution
in both her motion to suppress evidence obtained during the search of room 225 and
her motion to suppress her statements to the special agents. As it relates to both
motions, Tyler did not make a specific argument based on the Iowa Constitution.
Further, the district court’s rulings on both of these motions were based entirely on the
Federal Constitution. Tyler did not file a motion to enlarge the trial court’s ruling. See
State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008). Thus, because Tyler’s state
constitutional claims were not sufficiently raised or ruled on by the district court, any
such claims she has raised in this appeal were not adequately preserved. See id.; Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate
review that issues must ordinarily be both raised and decided by the district court
before we will decide them on appeal.”). Accordingly, we consider Tyler’s claims only
under federal constitutional standards.
                                   46

searches and seizures, shall not be violated . . . .” U.S. Const. amend.

IV.   In assessing whether a search resulted in a Fourth Amendment

violation, we apply a two-step approach.    State v. Brooks, 760 N.W.2d

197, 204 (Iowa 2009). “First, the defendant must show that he or she

has a legitimate expectation of privacy in the area searched. ‘Second, if

the defendant had a legitimate expectation of privacy, we must then

decide whether the State unreasonably invaded the protected interest.’ ”

Id. (citations omitted) (quoting State v. Halliburton, 539 N.W.2d 339, 342

(Iowa 1995)).

      1. Expectation of privacy. To establish a legitimate expectation of

privacy in the area searched, “a defendant challenging a search must

show (1) a subjective expectation of privacy and (2) this expectation of

privacy was reasonable.”    State v. Ortiz, 618 N.W.2d 556, 559 (Iowa

2000); accord State v. Lowe, 812 N.W.2d 554, 567 (Iowa 2012). “ ‘The

determination of whether a person has a legitimate expectation of privacy

with respect to a certain area is made on a case-by-case basis,

considering the unique facts of each particular situation.’ ”    State v.

Fleming, 790 N.W.2d 560, 564 (Iowa 2010) (quoting State v. Breuer, 577

N.W.2d 41, 46 (Iowa 1998)).      Whether a defendant’s expectation of

privacy is reasonable “is determined by examining property laws as well

as society’s generally recognized and permitted expectations about

privacy.”   Id.   We first analyze whether Tyler has demonstrated a

subjective expectation of privacy in room 225.

      Tyler originally rented room 225 in the early morning hours of

September 19. She paid for the room at that time. Based on the record,

it is reasonable to conclude she was having contractions and was looking

for a private location in anticipation of the birth of Baby Tyler.   Tyler

brought nothing with her for an overnight stay.     Further, after giving
                                    47

birth to Baby Tyler, Tyler left the room and returned to the trailer in

Coalville where she stayed for the night. However, when Tyler returned

to the hotel the next morning to check out, the hotel manager informed

her that she could rent room 225 for an additional night. She did so and

paid for the second night at that time. It is undisputed that at all times

during this period, the room was registered to Tyler. Shortly thereafter,

she left the hotel and returned to the trailer. Upon her departure, she

left a “Do Not Disturb” sign hanging from the doorknob of room 225. See

United States v. Lanier, 636 F.3d 228, 231 (6th Cir. 2011) (concluding a

“Do Not Disturb” sign hanging from a hotel room’s doorknob supported

the conclusion that the defendant had a subjective expectation of privacy

in his hotel room). She left her bloody hoodie coat, two vodka bottles,

eight dollars, and Baby Tyler’s body in the room. See id. (suggesting a

defendant’s decision to leave clothing and “a lot of cocaine” in his hotel

room supported the conclusion that the defendant had a subjective

expectation of privacy in his hotel room). The record further established

that Tyler intended to return to the room later to clean up. Thus, while

Tyler was not present when police entered the room, the record supports

the conclusion that after she departed from the hotel on September 20,

she maintained a subjective expectation of privacy in room 225.

      Having concluded Tyler had a subjective expectation of privacy in

room 225, we turn now to consider whether this expectation of privacy

was one “ ‘that society is prepared to recognize as reasonable.’ ” Fleming,

790 N.W.2d at 565 (quoting Minnesota v. Olson, 495 U.S. 91, 96–97, 110

S. Ct. 1684, 1688, 109 L. Ed. 2d 85, 93 (1990)). The Fourth Amendment

clearly establishes a reasonable expectation of privacy in the home.

Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 1379, 63

L. Ed. 2d 639, 650 (1980). “The case law extends this protection to hotel
                                    48

or motel rooms.” Brooks, 760 N.W.2d at 205; accord Stoner v. California,

376 U.S. 483, 486, 84 S. Ct. 889, 891, 11 L. Ed. 2d 856, 859 (1964);

Fleming, 790 N.W.2d at 565; State v. Smith, 178 N.W.2d 329, 332 (Iowa

1970). However, as we have previously explained:

             The mere fact that a premise[s] may be characterized
      as a residence or a motel room does not, by itself, establish
      that a particular person has a reasonable expectation of
      privacy in the premises. For example, the use of a hotel or
      motel room as a center for drug transactions and not as a
      residence does not give rise to legitimate expectations of
      privacy within the ambit of the Fourth Amendment. A
      defendant does not have a reasonable expectation of privacy
      when the motel or hotel room is nothing more than “a
      convenient processing station” for the packaging and
      distribution of drugs.

Brooks, 760 N.W.2d at 205 (quoting Minnesota v. Carter, 525 U.S. 83,

102, 119 S. Ct. 469, 479, 142 L. Ed. 2d 373, 388 (1998) (Kennedy, J.,

concurring)).

      Ultimately, a defendant must establish that he or she was using a

hotel or motel room as a residence, or for some other purpose for which

he or she had a legitimate expectation of privacy.        See Brooks, 760

N.W.2d at 205. “A bald assertion that one has been staying in a hotel,

without further proof, is generally insufficient; as is the defendant’s mere
presence in the motel room at the time of the search.” Id. Whether the

guest checked into and paid for the room is one factor we consider in

assessing whether an individual had a reasonable expectation of privacy

in the room. United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir.

2000); United States v. Carter, 854 F.2d 1102, 1105–06 (8th Cir. 1988).

We also consider whether the room is rented to the defendant at the time

of the search. See United States v. Huffhines, 967 F.2d 314, 318 (9th Cir.

1992) (“A guest in a motel has no reasonable expectation of privacy in a

room after the rental period has expired.”); United States v. Parizo, 514
                                      49

F.2d 52, 54 (2d Cir. 1975) (“[W]hen the term of a guest’s occupancy of a

room expires, the guest loses his exclusive right to privacy in the room.”).

Another relevant factor is “the presence of the defendant’s belongings.”

Brooks, 760 N.W.2d at 205; accord Cooper, 203 F.3d at 1284.

      We turn now to apply these principles to the unique facts of this

case. We must decide, based upon the record developed, whether Tyler

was using room 225 as an overnight guest, thereby giving rise to a

reasonable expectation of privacy, or whether she was using the room for

a purpose for which she had no reasonable expectation of privacy. Upon

our de novo review of the record, we conclude Tyler’s expectation of

privacy in room 225 was reasonable. Tyler rented room 225 in her own

name. She paid for the room on both September 19 and September 20.

The room was rented to her at the time of the search.         She brought

personal property with her to the room, albeit a minimal amount. She

placed a “Do Not Disturb” sign on the door indicating she expected

privacy. As stated earlier, it is reasonable to assume she checked into

the room believing she was about to give birth.         These actions are

consistent with her continuing efforts to conceal the pregnancy from her

friends and family. The mere fact that she gave birth to a child in the

room does not, alone, diminish her otherwise reasonable expectation of

privacy in the room.    On this record, we cannot conclude Tyler’s sole

purpose for renting room 225 was to commit a criminal offense.

Considering the totality of the circumstances, Tyler had a reasonable

expectation of privacy in room 225.

      2. Invasion of    protected interest and the exclusionary rule.

“ ‘Warrantless searches are per se unreasonable if they do not fall within

one of the well-recognized exceptions to the warrant requirement.’ ”

Lowe, 812 N.W.2d at 568 (quoting State v. Naujoks, 637 N.W.2d 101, 107
                                     50

(Iowa 2001)).   Further, if a defendant had a legitimate expectation of

privacy in the searched area, and the search does not fall within an

exception to the warrant requirement, “[t]he exclusionary rule requires

the suppression of evidence discovered as a result of [the] illegal

government activity.”    State v. McGrane, 733 N.W.2d 671, 680 (Iowa

2007). “However, there are exceptions to the exclusionary rule.” Id. at

681. There is no dispute that police initially entered room 225 without a

warrant. Therefore, any analysis should include whether an exception to

the warrant requirement or exclusionary rule applies in this case.

      In its ruling on the motion to suppress evidence obtained by police

during the search of room 225, the district court concluded Tyler did not

have a reasonable expectation of privacy in the room because “as was the

case in Brooks, the motel room was not intended to be used as a

‘residence’ but rather a venue for the commission of an alleged crime.”

As discussed above, the district court erred in denying Tyler’s motion on

that basis alone because the conclusion that Tyler rented room 225 for

the sole purpose of committing a criminal offense is not supported by the

record. Because of the district court’s specific ruling on that issue, it did

not address whether any exceptions to the warrant requirement or

exclusionary rule may apply to law enforcement’s search of room 225.

      One potentially applicable exception to the warrant requirement in

this case is the community caretaking exception. See State v. Kern, 831

N.W.2d 149, 172 (Iowa 2013).          “A core notion of the community

caretaking exception is that . . . it is ‘totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a

criminal statute.’ ” Id. (quoting Cady v. Dombrowski, 413 U.S. 433, 441,

93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 715 (1973)). “ ‘The community

caretaking function involves the duty of police officers to help citizens an
                                     51

officer reasonably believes may be in need of assistance.’ ” Id. at 172–73

(quoting State v. Mireles, 991 P.2d 878, 880 (Idaho Ct. App. 1999)).

      We have recognized that “ ‘the community caretaking exception

encompasses three separate doctrines: (1) the emergency aid doctrine, (2)

the automobile impoundment/inventory doctrine, and (3) the “public

servant” exception.’ ” State v. Kurth, 813 N.W.2d 270, 274 (Iowa 2012)

(quoting State v. Crawford, 659 N.W.2d 537, 541 (Iowa 2003)).              The

emergency aid doctrine and the public servant exception are closely

related.   Crawford, 659 N.W.2d at 541.            As we have previously

recognized:

      Under the emergency aid doctrine, the officer has an
      immediate, reasonable belief that a serious, dangerous event
      is occurring. . . . [I]n contrast, the officer in a public servant
      situation might or might not believe that there is a difficulty
      requiring his general assistance. For example, an officer
      assists a motorist with a flat tire under the public servant
      doctrine, but an officer providing first aid to a person
      slumped over the steering wheel with a bleeding gash on his
      head acts pursuant to the emergency aid doctrine.

Id. at 541–42 (alterations in original) (quoting Mary Elisabeth Naumann,

Note, The Community Caretaker Doctrine: Yet Another Fourth Amendment

Exception, 26 Am. J. Crim. L. 325, 333–34 (1999)).

      The determination of whether the community caretaking exception

applies

      require[s] a three-step analysis: (1) was there a seizure
      within the meaning of the Fourth Amendment?; (2) if so, was
      the police conduct bona fide community caretaker activity?;
      and (3) if so, did the public need and interest outweigh the
      intrusion upon the privacy of the citizen?

Crawford, 659 N.W.2d at 543; accord Kern, 831 N.W.2d at 173. While

the test “does not primarily focus on searches,” we have previously
                                      52

applied the community caretaking exception to justify searches in several

cases. Kern, 831 N.W.2d at 173 (collecting cases).

      One potentially applicable exception to the exclusionary rule in

this case is the inevitable discovery doctrine. See McGrane, 733 N.W.2d

at 681.    Under the inevitable discovery doctrine, “relevant, probative

evidence   gathered    despite   Fourth     Amendment    violations   is   not

constitutionally   excluded    when   the   police   would   have   inevitably

discovered the same evidence acting properly.” State v. Christianson, 627

N.W.2d 910, 912 (Iowa 2001).

      Unfortunately, the State did not develop an adequate a record on

these issues in the district court. While it was error for the district court

to conclude Tyler had no reasonable expectation of privacy in room 225,

we will allow the State to develop an additional record on whether these

or any other potential exceptions to the warrant requirement or

exclusionary rule apply. On this record, we reverse the district court’s

denial of the motion to suppress and remand this issue for further

hearing and ruling by the district court.

      B. Tyler’s Statements to Police. In Miranda v. Arizona, 384 U.S.

436, 471, 478–79, 86 S. Ct. 1602, 1626, 1630, 16 L. Ed. 2d 694, 722,

726 (1966), the Supreme Court of the United States required police to

advise suspects of their rights under the Fifth Amendment to the United

States Constitution before a custodial interrogation. The Court required

that police tell the suspect

      he has the right to remain silent, that anything he says can
      be used against him in a court of law, that he has the right
      to the presence of an attorney, and that if he cannot afford
      an attorney one will be appointed for him prior to any
      questioning if he so desires.

Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.
                                    53

       In determining the admissibility of a defendant’s inculpatory

statements over a Fifth Amendment challenge we apply a two-part test.

State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997).             “We first

determine whether Miranda warnings were required and, if so, whether

they were properly given. Second, we ascertain whether the statement is

voluntary and satisfies due process.”     Id.   Miranda warnings are only

required if, at the time of police questioning, the suspect is both: 1) in

custody, and 2) subject to interrogation. Berkemer v. McCarty, 468 U.S.

420, 429, 104 S. Ct. 3138, 3144, 82 L. Ed. 2d 317, 328 (1984); accord

Countryman, 572 N.W.2d at 557.           Once police give a suspect the

requisite warning, the “[s]uspect[] may waive [his or her] Miranda rights

as long as the suspect has done so knowingly, intelligently, and

voluntarily.” State v. Ortiz, 766 N.W.2d 244, 251 (Iowa 2009). We turn

now to address Tyler’s specific arguments.

       1. Custodial interrogation. Tyler asserts she was in custody when

the special agents questioned her at the police station, prior to giving her

Miranda warnings, in violation of her Fifth Amendment rights.           For

purposes of the Fifth Amendment, a suspect is in custody “as soon as a

suspect’s freedom of action is curtailed to a ‘degree associated with

formal arrest.’ ” Berkemer, 468 U.S. at 440, 104 S. Ct. at 3150, 82 L. Ed.

2d at 335 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct.

3517, 3520, 77 L. Ed. 2d 1275, 1279 (1983) (per curiam)). “ ‘[A] court

must examine all of the circumstances surrounding the interrogation,

but “the ultimate inquiry is simply whether there was ‘a formal arrest or

restraint on freedom of movement’ of the degree associated with a formal

arrest.” ’ ”   Countryman, 572 N.W.2d at 557–58 (quoting Stansbury v.

California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528–29, 128 L. Ed. 2d

293, 298 (1994) (per curiam)).      In deciding whether a suspect is in
                                      54

custody at a given time, “we examine the extent of the restraints placed

on the suspect during the interrogation in light of whether ‘a reasonable

man in the suspect’s position would have understood his situation’ to be

one of custody.’ ” Ortiz, 766 N.W.2d at 251 (quoting Berkemer, 468 U.S.

at 442, 104 S. Ct. at 3151, 82 L. Ed. 2d at 336).          We consider four

factors in making this determination:

         (1) the language used to summon the individual; (2) the
         purpose, place, and manner of interrogation; (3) the extent to
         which the defendant is confronted with evidence of her guilt;
         and (4) whether the defendant is free to leave the place of
         questioning.

Countryman, 572 N.W.2d at 558.         We turn now to determine whether

Tyler was in custody at the Fort Dodge police station on September 20

when she stated she drowned Baby Tyler.

         First, we must assess the language the officers used to summon

Tyler.    When the officers approached Tyler at the trailer, they did not

demand that she go with them. They knocked on the door to the trailer,

told her they needed to speak with her, and asked her if she needed

medical attention. Tyler agreed to speak with them and said she did not

need medical attention. Detective Chansler asked Tyler if she was “okay”
with going with Special Agent Roehrkasse and speaking with the officers.

Tyler responded, “Yea.” Tyler was neither handcuffed nor forcibly placed

in the back of Special Agent Roehrkasse’s vehicle. See State v. Miranda,

672 N.W.2d 753, 760 (Iowa 2003) (considering the fact that the suspect

was handcuffed as weighing in favor of custody). The record shows that

Tyler voluntarily accompanied Special Agent Roehrkasse to the police

station. See State v. Smith, 546 N.W.2d 916, 923 (Iowa 1996) (“Although

coming to the center voluntarily is not alone enough to negate a finding

of custody, it is indicative of the state of mind of a reasonable person in
                                      55

the situation.”); State v. Brown, 341 N.W.2d 10, 16 (Iowa 1983) (“He

accompanied officers to the police station voluntarily and was at no time

subjected to either physical or verbal restraint.”); see also Purvis v.

Dugger, 932 F.2d 1413, 1415, 1419 (11th Cir. 1991) (considering

suspect’s voluntary decision to accompany officers to the police station in

a police vehicle as weighing against custody); State v. Atkinson, 670 A.2d

276, 285 (Conn. 1996) (considering a suspect’s voluntary decision to

accompany “two plainclothes detectives in an unmarked vehicle” to the

police station as weighing against custody). This factor weighs against

custody.

      Second, we must examine the purpose, place, and manner of the

interrogation.   As we have previously recognized, while a three-hour

interview may seem like a long time, this does not necessarily mean the

suspect was in custody.      See Countryman, 572 N.W.2d at 558 (“The

three-hour length of the conversation did not render it custodial.”);

Brown, 341 N.W.2d at 16 (finding no custody despite two and one-half

hours of questioning).    Further, that an interview takes place at the

police station does not, itself, render the suspect in custody.        See

Countryman, 572 N.W.2d at 558 (finding no custody when interview

occurred at the sheriff’s office).   In examining the purpose, place, and

manner of an interrogation, we examine factors including the number of

persons conducting the questioning, the number of breaks taken during

the questioning, the availability of restroom breaks or other breaks, and

the type of questioning in which those conducting the interview engage.

See id; see also Smith, 546 N.W.2d at 924.

      Here, although the interrogation took place over the course of a

three-hour period, the room in which it occurred was carpeted and well

lit. See Smith, 546 N.W.2d at 924 (considering building’s furnishings in
                                   56

assessing custody).   Although the special agents who questioned Tyler

were armed, they were dressed in plain clothes. Id. (finding the fact that

officers were casually dressed weighed against custody).      During the

questioning, only two special agents were present at any given time. See

id. (noting “[o]ne fact of particular significance is the number of law

enforcement officers taking part in the interview process” and finding no

custody when two officers conducted the interview).      In fact, for the

majority of the questioning only Special Agent Roehrkasse was present.

See id. (considering the fact that only one officer was present for a

majority of the questioning as weighing against custody). At the start of

the interview, Special Agent Thiele asked Tyler if she needed to go to the

restroom and told her that if she needed anything to drink, to let them

know.   The special agents again asked Tyler if she needed medical

treatment. She responded, “No.” The special agents did not engage in

confrontational or aggressive questioning, but rather asked Tyler open-

ended questions about the events that transpired at the hotel.        See

Countryman, 572 N.W.2d at 558 (finding nonconfrontational nature of

questioning weighed against custody).        During the course of the

interview, the special agents did not raise their voices, but conducted

themselves in a calm, respectful manner, often times prefacing questions

with statements such as “[we] are not here to judge you.” Finally, while

“[a] policeman’s unarticulated plan has no bearing on the question

whether a suspect was ‘in custody’ at a particular time,” Berkemer, 468

U.S. at 442, 104 S. Ct. at 3151, 82 L. Ed. 2d at 336, the record revealed

the special agents were not attempting to get Tyler to confess to a crime.

Rather, their discussion outside of Special Agent Roehrkasse’s vehicle

before transporting Tyler to the police station suggests they did not know

what had happened at the hotel. Specifically, one of the officers stated,
                                   57

“We don’t know what we got.” Thus, the purpose of the questioning was

to ascertain what had happened, as opposed to getting Tyler to confess to

a murder. Importantly, the special agents intentions manifested in the

manner of their questioning, as they repeatedly informed Tyler that they

were only trying to gather information. Their demeanor, tone, and line of

questioning do not suggest a reasonable person would have understood

him or herself to be in custody. This factor weighs against custody.

      Third, we must examine the extent to which the special agents

confronted Tyler with evidence of her guilt. Again, the record revealed

that when the special agents began questioning Tyler they did not know

whether Baby Tyler was born alive. While Special Agent Roehrkasse did

ask Tyler if the autopsy would show that there had been air in the baby’s

lungs or that the baby was born alive, he did not suggest the autopsy

would in fact show that Baby Tyler ever took a breath or was born alive.

These questions were not accusatory in nature, but rather intended to

encourage her to tell the truth. See Smith, 546 N.W.2d at 925 (finding

officers decision to tell the defendants their stories did not match was a

“tool with which to urge the defendants to provide more information,” as

opposed to an accusation of guilt). Prior to her confession, the special

agents did not confront Tyler with any other evidence that she drowned

Baby Tyler. This factor weighs against custody.

       Finally, we must consider whether Tyler was free to leave the

place of questioning.    At the start of the interview, Special Agent

Roehrkasse informed Tyler that, although she had ridden with him to the

police station, she was free to leave at any time and that he would give

her a ride back to Coalville if she desired. See Miranda, 672 N.W.2d at

760 (“ ‘The most obvious and effective means of demonstrating that a

suspect has not been taken into custody or otherwise deprived of
                                     58

freedom of action is for the police to inform the suspect that an arrest is

not being made and that the suspect may terminate the interview at

will.’ ” (quoting United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.

1990))).   Although the door to the interview room was closed, it was

unlocked and Tyler’s path to it was unobstructed.             Special Agent

Roehrkasse told Tyler that the fact that the door was shut should not

deter her from leaving.    During the interview, the special agents told

Tyler she was free to leave one additional time. Immediately before the

forty-three minute break, Special Agent Thiele reminded Tyler that the

door was unlocked and informed her that she was free to “get up and

roam around” if she wanted.

       We recognize that Tyler had given birth the day before the

interview and possibly remained under the stress of that event.

Notwithstanding, the record revealed her physical state did not affect her

ability to leave. Specifically, the afternoon of the birth Tyler drove herself

from the hotel to the trailer and spent the night there.       The following

morning, she ate breakfast with Cyphers, ran errands, and returned to

the hotel to check out. After renting room 225 for an additional night,

she drove herself back to the trailer. Thus, Tyler’s own conduct following

Baby Tyler’s birth undermines any claim that her medical condition

precluded her from leaving the interview.       Further, the special agents

asked Tyler if she needed any medical attention prior to transporting her

to the police station and several more times during the interview. Tyler

coherently answered the special agents’ questions and told them she did

not need medical attention.      We do not find that her medical state

precluded her from leaving. This factor weighs against custody.

       Upon our de novo review, we conclude Tyler was not in custody at

any time prior to when she confessed to drowning Baby Tyler. Because
                                    59

Tyler was not in custody when she initially confessed to drowning Baby

Tyler, her initial confession was not obtained in violation of the Fifth

Amendment.

       2. Waiver. Tyler next argues that she did not execute a valid

waiver of her Miranda rights at the police station before her confirmation

confession or later at the hospital when she again admitted to drowning

Baby Tyler.    She maintains that she did not voluntarily waive her

Miranda rights during these police encounters.      In order to execute a

valid waiver of one’s Miranda rights, the waiver must be made

“knowingly, intelligently, and voluntarily.”   Ortiz, 766 N.W.2d at 251.

“ ‘[V]oluntariness’ for . . . due process purposes and Miranda purposes

are identical.” Countryman, 572 N.W.2d at 559. Therefore, “a Miranda

waiver is involuntary only when it is shown to be the product of police

misconduct or overreaching.” Id. “For a waiver to be made voluntarily,

the relinquishment of the right must have been voluntary, meaning it

was the product of the suspect’s free and deliberate choice rather than

intimidation, coercion, or deception.”   Ortiz, 766 N.W.2d at 251.     The

question of whether a suspect voluntarily waived his or her Miranda

rights “is to be made by inquiring into the totality of the circumstances

surrounding the interrogation, to ascertain whether the suspect in fact

‘decided to forgo his rights to remain silent and to have the assistance of

counsel.’ ” Id. (quoting Fare v. Michael C., 442 U.S. 707, 724–25, 99 S.

Ct. 2560, 2571–72, 61 L. Ed. 2d 197, 212 (1979)). The State has the

burden to prove by a preponderance of the evidence that Tyler voluntarily

waived her Miranda rights. Payton, 481 N.W.2d at 328.

       A number of factors are helpful in determining whether a

defendant voluntarily waived their Miranda rights. These factors include:
                                        60
      defendant’s age; whether defendant had prior experience in
      the criminal justice system; whether defendant was under
      the influence of drugs; . . . whether defendant was mentally
      “subnormal”; 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.

Id. at 328–29 (citations omitted).      Further, while “[a] written waiver of

constitutional rights is not alone sufficient to establish the waiver as . . .

voluntary[,] [i]t is . . . strong proof of its validity.”   Countryman, 572

N.W.2d at 559 (citation omitted). We now turn to consider whether Tyler

voluntarily waived her Miranda rights, both at the police station after

Special Agent Roehrkasse informed her she was going to be charged, and

the next day at the hospital during the special agents’ follow-up

questioning.

      After Tyler initially confessed at the police station, Special Agent

Roehrkasse took two breaks before telling Tyler she would be “charged

today.” He then read Tyler her Miranda rights aloud, and she signed a

written waiver form. This is strong proof that Tyler executed a voluntary

waiver. Id. Further, prior to reading Tyler her Miranda rights, Special

Agent Roehrkasse asked Tyler if she was forced to make any of the

statements she had previously made. She responded, “No.” At the time

of the questioning, Tyler was thirty-one years old.           She had prior
experience     with   the   criminal   justice   system   from a   prior theft

prosecution. She had graduated from high school and had taken several

college courses. The record reflects that prior to the interview, Tyler had

taken some cold medicine and felt “spacey” as a result. She also gave

birth the day before the interview and was questioned for a long period.

However, the record shows that the special agents took several breaks

during the questioning and offered Tyler food, drink, and the opportunity
                                    61

to use the bathroom.     She was readily capable of understanding and

answering the special agents’ questions. Further, she voluntarily stayed

at the police station and answered questions despite Special Agent

Roehrkasse’s offer to take her home.     While on several occasions she

began to cry, she never lost control or had a breakdown. The special

agents never threatened Tyler, nor did they make any promises of

leniency in exchange for her cooperation. Finally, the special agents did

not engage in any deceptive tactics during the questioning.          Tyler

voluntarily answered the special agents’ questions and then, after Special

Agent Roehrkasse read Tyler her Miranda rights, she voluntarily waived

her rights and confirmed her prior confession. Considering the totality of

the circumstances, Tyler voluntarily waived her Miranda rights at the

police station on September 20.

      Many of the same factors also support the conclusion that Tyler

voluntarily waived her Miranda rights at the hospital on September 21.

Before this follow-up interview, Special Agent in Charge Hedlund again

read Tyler her Miranda rights. Tyler explained what each of her rights

meant to her, acknowledged that she understood her rights, and signed

another written waiver form.      Prior to this second interview, Tyler

received a surgical repair for a tear from childbirth, she had lost a large

amount of blood, her blood pressure was high, and she was taking

several medications.    Further, she initially told the officers she was

“really out of it.” However, she remembered speaking with Special Agent

Roehrkasse the previous day and that his name was “Mike,” knew she

was at the hospital, never appeared confused, and was alert and tracking

with the special agents’ questions. See Countryman, 572 N.W.2d at 559

(finding a defendant’s statements were voluntarily given despite the fact

that the defendant was “under the influence of drugs and was confused”
                                    62

because “she was easy to understand”); State v. Edman, 452 N.W.2d 169,

170 (Iowa 1990) (“Being ‘under the influence’ does not, standing alone,

render inculpatory statements involuntary.”).     Additionally, when the

special agents asked Tyler if she would prefer “[they] come back later,”

Tyler responded, “You can talk to me.” Considering the totality of the

circumstances, Tyler voluntarily waived her Miranda rights at the

hospital on September 21.

      3. Voluntariness of confessions. Finally, Tyler maintains that all of

her confessions to the special agents were involuntary and therefore in

violation of her due process rights under the Fourteenth Amendment to

the United States Constitution. As noted above, “ ‘voluntariness’ for . . .

due process purposes and Miranda purposes are identical.” Countryman,

572 N.W.2d at 559. Thus, the same factors outlined in the preceding

subsection are relevant in determining whether Tyler’s confessions were

voluntarily given.

      For many of the same reasons noted above, our de novo review of

the record reveals that each of Tyler’s confessions was voluntarily given.

During the first interview, Special Agent Roehrkasse told Tyler that she

was free to leave and that he would give her a ride home if she desired.

The special agents asked her if she needed medical treatment.          She

responded, “No.”     While she had just given birth and had taken cold

medicine, her own actions that morning suggest that she was capable of

leaving if she desired. She voluntarily remained at the police station and

answered questions. Her responses to the questioning clearly indicated

she was capable of both understanding and answering the special agents’

questions.   The special agents made no threats or any promises of

leniency in exchange for her cooperation.     Neither did they engage in

deceptive tactics.     Tyler voluntarily answered the special agents’
                                     63

questions, and then after being informed both that she would be

“charged today” and of her Miranda rights, she told the special agents

she had not been forced to confess previously. She then proceeded to

confirm her initial confession.

      At the hospital, although Tyler was tired, medicated, and had

undergone surgery recently, she again agreed to speak with the special

agents despite their offer to return later. She never appeared confused

and was alert and tracked with the special agents’ questions. While she

had previously confessed, making it difficult for her to change her story,

her prior confession was not the product of coercion. Although Special

Agent Roehrkasse again participated in the follow-up interview, the

interview took place at an entirely different location and a day later. The

record does not reflect a woman whose will was overborne. Considering

the totality of the circumstances, Tyler’s confessions both at the police

station and later at the hospital were voluntarily given and therefore not

in violation of her due process rights.

      Tyler was not in custody during her initial confession to the special

agents at the police station. She voluntarily waived her Miranda rights

both at the police station and later at the hospital.          Each of her

confessions was voluntarily given.        The district court properly denied

Tyler’s motion to suppress her statements to police.

      V. Conclusion.

      The district court abused its discretion in allowing Dr. Thompson

to opine on the cause and manner of Baby Tyler’s death because he

based his opinions primarily, if not exclusively, on Tyler’s inconsistent

and uncorroborated statements to police as opposed to objective,

scientific, or medical evidence. On retrial, should the State attempt to

use Dr. Thompson as an expert witness, the district court should
                                    64

prohibit him from testifying that the cause of death was “drowning” and

the manner of death was “homicide.”       Likewise, it should redact the

portions of the autopsy report stating his ultimate opinions on cause and

manner of death.

      With respect to Tyler’s motion to suppress evidence obtained by

police during the search of room 225, we conclude the district court

erred in denying this motion based solely on the legal conclusion that

Tyler had no reasonable expectation of privacy in room 225 because she

obtained it for the purpose of committing a crime.       We reverse this

motion and remand the issue for further hearing and ruling by the

district court concerning the applicability of exceptions to the warrant

requirement or exclusionary rule.     With respect to Tyler’s motion to

suppress statements made to police during her initial contact with law

enforcement, at the police station, and at the hospital, we affirm the

district court’s ruling. We vacate the decision of the court of appeals,

affirm the judgment of the district court in part and reverse in part, and

remand the case for additional proceedings consistent with this opinion

and a new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART

AND CASE REMANDED.

      Hecht, J., files a concurrence in part and dissent in part in which

Wiggins and Appel, JJ., join. Appel, J., files a concurrence in part and

dissent in part in which Wiggins and Hecht, JJ., join. Waterman, J., files

a concurrence in part and dissent in part in which Cady, C.J., and

Mansfield, J., join.
                                   65

                                                 #13–0588, State v. Tyler

HECHT, Justice (concurring in part and dissenting in part).

      I agree the district court erred in allowing the medical examiner to

rely primarily upon Tyler’s uncorroborated statements in forming an

opinion as to the cause of Baby Tyler’s death. I also agree the district

court erred in concluding Tyler had no reasonable expectation of privacy

in the hotel room. However, I dissent in part because I conclude all of

Tyler’s statements to the police are inadmissible. The circumstances—

especially the officers’ repeated verbal assurances that Tyler was not in

custody and their subsequent decision to administer warnings only after

Tyler made all of the inculpatory statements they sought—demonstrate a

calculated strategy to circumvent Miranda.       In my view, the police

questioning in this case constitutes a “midstream recitation of warnings

after interrogation and unwarned confession” in violation of Missouri v.

Seibert, 542 U.S. 600, 604, 124 S. Ct. 2601, 2605, 159 L. Ed. 2d 643,

650 (2004) (plurality opinion), and all of Tyler’s statements made during

the police station and hospital interrogations should have been

suppressed.

      Our court has not had occasion to apply Seibert. Thus, this case

presents the first opportunity to consider the problem of midstream

Miranda warnings in successive interrogations. Seibert was a split 4–1–4

decision, so courts applying it must determine whether the plurality

opinion or Justice Kennedy’s concurring opinion provides the controlling

rule. See Kuhne v. Commonwealth, 733 S.E.2d 667, 673 (Va. Ct. App.

2012) (“The Seibert plurality would review all two-step interrogations

under a multi-factor test . . . . Justice Kennedy’s opinion would apply a

form of heightened scrutiny only to those two-step cases in which law

enforcement officers deliberately employed a two-step procedure designed
                                         66

to weaken Miranda’s protections.”). A majority of federal Circuit Courts

of Appeals have adopted Justice Kennedy’s standard, and so have several

state courts. See generally id. at 672 & nn. 5–6 (collecting cases); see

also State v. Nightingale, 58 A.3d 1057, 1066–67 (Me. 2012); State v.

Fleurie, 968 A.2d 326, 332–33 (Vt. 2008).

       I would not expressly adopt either standard in this case because I

conclude the officers violated both.          See United States v. Aguilar, 384

F.3d 520, 525 (8th Cir. 2004) (finding a Miranda violation under both the

Seibert plurality opinion and Justice Kennedy’s concurring opinion in the

same case); see also United States v. Pacheco-Lopez, 531 F.3d 420, 427

n.11 (6th Cir. 2008) (same). The officers’ strategy and technique in this

case clearly exemplify the use of a “question-first tactic” that subverts

Miranda’s rationale, see Seibert, 542 U.S. at 617, 124 S. Ct. at 2613, 159

L. Ed. 2d at 658, and epitomizes a “deliberate two-step strategy,” id. at

622, 124 S. Ct. at 2616, 159 L. Ed. 2d at 661 (Kennedy, J., concurring in

the judgment).

       This case involves two successive interrogations: one beginning in

the police car and continuing at the police station, and another at the

hospital. Tyler received Miranda warnings toward the end of the three-

hour police station interrogation only after she made incriminating

statements regarding Baby Tyler’s death.                 After receiving Miranda

warnings at the police station, Tyler did not repeat her incriminating

statements anew, but simply answered “Yes” as the officers confirmed

what she had previously said. 16         She also received additional Miranda

       16The transcript of the police station interview in the record fills sixty-eight

pages. Miranda warnings precede only the final six pages, which span the final sixteen
minutes of the three-hour interrogation. During that time, Tyler overwhelmingly
provided one-word answers, likely because the officers asked almost exclusively yes-or-
no questions—for example, “You gave birth at approximately 12:00 p.m., okay?”; “[Y]ou
said you filled up the bathtub with approximately two to three inches of water?”; and
                                           67

warnings at the hospital the next day where she repeated her

incriminating statements.

       I. Custody Principles.

       As a threshold matter, Tyler brings claims under both the Federal

and State Constitutions.          Because I conclude Seibert is dispositive, I

would not reach the question whether the Iowa Constitution provides

different standards.       Cf. State v. Kooima, 833 N.W.2d 202, 212 (Iowa

2013) (“We do not decide this case under the Iowa Constitution because

we resolve this issue based upon the Fourth Amendment of the United

States Constitution.”).

       Custody for Miranda purposes is ordinarily an objective test that

considers the totality of the circumstances. Stansbury v. California, 511

U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994) (per

curiam). “[T]he ultimate inquiry is . . . whether there is a ‘formal arrest

or restraint on freedom of movement’ of the degree associated with a

formal arrest.”     California v. Beheler, 463 U.S 1121, 1125, 103 S. Ct.

3517, 3520, 77 L. Ed. 2d 1275, 1279 (1983) (per curiam) (quoting Oregon

v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714,

719 (1977) (per curiam)). When making this inquiry, courts must keep

in mind the purpose of the Miranda rule: to protect individuals from

coerced or involuntary self-incrimination. See Seibert, 542 U.S. at 608,

124 S. Ct. at 2608, 159 L. Ed. 2d at 652–53 (plurality opinion); Berkemer

v. McCarty, 468 U.S. 420, 433, 104 S. Ct. 3138, 3146–47, 82 L. Ed. 2d

317, 330 (1984).


_________________________________
“[Y]ou brought the baby out of the tub and placed him in a trash can, correct?” In the
few instances in which the officers did not ask a yes-or-no question, Tyler still answered
very briefly. For example, to answer a question about where she gave birth, Tyler used
just five words: “I was in the bathroom.”
                                     68

      Our cases generally examine four factors in determining whether a

suspect is in custody:

      “(1) the language used to summon the individual;

      (2) the purpose, place, and manner of interrogation;

      (3) the extent to which the defendant is confronted with
      evidence of her guilt; and

      (4) whether the defendant is free to leave the place of
      questioning.”

State v. Bogan, 774 N.W.2d 676, 680 (Iowa 2009) (quoting State v.

Miranda, 672 N.W.2d 753, 759 (Iowa 2003)). These factors, however, are

not exclusive, and no one fact or factor is determinative. State v. Smith,

546 N.W.2d 916, 922 (Iowa 1996) (en banc).

      II. Applying Custody Principles to This Case.

      Recognizing their primary purpose was to obtain admissions of

criminal conduct from the only suspect in their investigation, and

understanding the circumstances surrounding the transaction had

characteristics of interrogation raising Miranda implications, the officers

told Tyler she was free to leave soon after she arrived at the police station

and as the questioning began.      They told Tyler she was free to leave

because they knew a suspect’s freedom to leave the interrogation room is

a relevant factor in determining whether that suspect is in custody. See

Bogan, 774 N.W.2d at 680; State v. Ortiz, 766 N.W.2d 244, 251–52 (Iowa

2009); accord United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.

1990).   But telling Tyler she was free to leave “is not ‘talismanic’ or

sufficient in and of itself to show a lack of custody.”    United States v.

Hargrove, 625 F.3d 170, 180 (4th Cir. 2010). Actions speak louder than

words in this context, and several other factors convince me that Tyler

was in custody from the time the officers took her from her residence and
                                        69

should have received Miranda warnings before the questioning began.

See People v. Minjarez, 81 P.3d 348, 357 (Colo. 2003) (en banc) (declining

to credit officers’ assurances the defendant was free to leave “when all

external circumstances appear[ed] to the contrary”); Buck v. State, 956

A.2d 884, 908 (Md. Ct. Spec. App. 2008) (finding custody despite “what

the detectives said about . . . not being under arrest and being free to

leave,” in part because the detectives used “catchphrases” in an effort “to

create an interrogation that could be labeled non-custodial”); see also 2

Wayne R. LaFave et al., Criminal Procedure § 6.6(d), at 737 n.57 (3d ed.

2007 & Supp. 2014) [hereinafter LaFave] (noting an assurance the

suspect is free to leave “will not carry the day where it is, in effect,

nullified by other police conduct”).

      First, Tyler did not voluntarily contact the police to offer a

statement.    See Griffin, 922 F.2d at 1351 (“[W]hen the confrontation

between the suspect and the criminal justice system is instigated at the

direction of law enforcement authorities, rather than the suspect,

custody is more likely to exist.”).

      Second, the words the three officers used when they arrived at

Tyler’s residence did not constitute a mere invitation for Tyler to come

with them to the police station. Within fifteen seconds of Tyler opening

the door, one officer told Tyler, “What we’re going to do . . . I want to have

you go with . . . this guy right here. OK. We need to get to the bottom of

what’s going on. OK.” The officers discussed waking Cyphers, asking,

“He knows what’s going on?”           Tyler responded that he did not.   One

officer stated, “May I ask you why not?”            Tyler gave an inaudible

response and the officer stated, “There’s no way around this right now,

he’s going to know.” Another officer stated, “We need to talk to him” and

“We might as well get this over with.” Thereafter, the officer told Tyler,
                                      70

“why don’t you ride with Mike,” another officer.          A DCI agent then

directed Tyler to a police vehicle.

       “If the so-called ‘invitation’ involves the person going to the station

in the company of the police, then a finding of custody is much more

likely.”   2 LaFave § 6.6(d), at 735.      Here, the words spoken at Tyler’s

residence communicated the notion that the officers insisted upon

speaking with her at the police station about Baby Tyler. See Bogan, 774

N.W.2d at 680 (noting we consider “the language used to summon the

individual” when determining whether a suspect was in custody); Ortiz,

766 N.W.2d at 251–52 (same); State v. Werner, 9 S.W.3d 590, 596 (Mo.

2000) (en banc) (finding custody when a detective “requested” that a

suspect accompany him to the police station and did not tell the suspect

he could refuse to do so).

       Third, the questions posed to Tyler during the car ride to the police

station and soon thereafter at the police station lasted more than three

hours. While the duration of three hours certainly is not dispositive on

the question whether Tyler was in custody, it is nonetheless a relevant

consideration. See United States v. Wright, 777 F.3d 769, 775 (5th Cir.

2015) (noting length of questioning is an important factor); Bogan, 774

N.W.2d at 680 (noting we consider “the purpose, place, and manner of

interrogation” (emphasis added)); see also Aguilar, 384 F.3d at 527

(suppressing a confession in part because the “questioning was not

brief”); Payne v. State, 854 N.E.2d 7, 15 (Ind. Ct. App. 2006) (finding a

Seibert violation when pre-Miranda questioning lasted seven hours).

       Fourth, the officers took numerous lengthy breaks during the

questioning at the police station and, after each of them, refocused their

questions or asked specific follow-up questions about Baby Tyler’s death.

They did not accept Tyler’s explanation that Baby Tyler was stillborn.
                                           71

These breaks in the action and accusatory follow-up questions were

obviously in furtherance of the officers’ strategy for eliciting admissions

establishing Tyler’s guilt on each of the elements of a first-degree murder

charge prior to giving the Miranda warnings. See Bogan, 774 N.W.2d at

680 (noting we consider the extent to which a suspect is confronted with

evidence of guilt).

       To be sure, the lengthy prewarnings session at the police station

cannot reasonably be characterized as merely gathering nonsubstantive

background facts.        Compare State v. Lewis, 326 P.3d 387, 398 (Kan.

2014) (finding no Seibert violation because “[t]he pre-warning interview

lasted only 10 minutes with nothing of substance revealed”), and State v.

Juranek, 844 N.W.2d 791, 803–04 (Neb. 2014) (finding no Seibert

violation when the prewarnings questions “did not touch upon key points

in the investigation”), with Payne, 854 N.E.2d at 15 (finding a Seibert

violation because police “waited to advise [the defendant] of her Miranda

warnings until she essentially had divulged her entire involvement”).

Notably, it was not until after Tyler stated she placed Baby Tyler face

down in a bathtub containing water that Agent Roehrkasse left the room

and returned with a written Miranda waiver form. 17 He then thoroughly

reviewed with Tyler each of the Miranda warnings before eliciting with

leading questions all of the details of Tyler’s confession that had

previously been methodically extracted from her.




       17Tyler  had previously revealed that Baby Tyler cried briefly after he was born. I
find it significant that the officer did not stop posing questions and administer the
Miranda warnings at that point. Instead, the officer forged ahead with the interrogation
and didn’t stop until Tyler had admitted she had placed the baby face down in water in
the bathtub. See Seibert, 542 U.S. at 616, 124 S. Ct. at 2612, 159 L. Ed. 2d at 657
(“When the police were finished there was little, if anything, of incriminating potential
left unsaid.”).
                                    72

      Further, although Tyler was not informed of her arrest on the

murder charge before she was taken from the police station to the

hospital for medical attention, the record reveals a law enforcement

officer was posted outside her hospital room while she was there. See

Griffin, 922 F.3d at 1355 (concluding when a suspect was arrested at the

end of an interview, the arrest was objective evidence weighing in favor of

custody “from the inception of the encounter”); Buck, 956 A.2d at 908

(finding custody even though officers repeatedly told the defendant he

was free to leave and did not formally arrest him until after they drove

him back home). On these facts, I would conclude Tyler was not free to

leave the police station and therefore was in custody.

      My conclusion that Tyler was in custody at all times en route to

the police station and during the three hours of interrogation conducted

after they arrived there is strongly influenced by the circumstances

surrounding her physical and mental health. The officers knew from the

outset of the questioning that Tyler had given birth at a hotel without

medical assistance—indeed, without assistance from anyone—during the

previous forty-eight hours.   Although Tyler denied a need for medical

assistance when the officers inquired, the officers either knew or

certainly should have known that she had received no medical care

during or after the delivery, and she therefore needed it promptly. There

was clearly no urgent need for the interrogation to occur before a

physical examination and postnatal medical treatment. Yet, the agents

decided to interrogate Tyler as a suspect in a crime first, knowing that

she had gone through a very traumatic event the night before.

      III. The Seibert Standard.

      Because I conclude Tyler was in custody during the entire time she

was en route to the police station and during the interrogations
                                     73

conducted there and at the hospital, I would apply Seibert. In Seibert,

the Supreme Court’s plurality opinion set forth a number

         of relevant facts that bear on whether Miranda warnings
         delivered midstream could be effective enough to accomplish
         their object: the completeness and detail of the questions
         and answers in the first round of interrogation, the
         overlapping content of the two statements, the timing and
         setting of the first and second, the continuity of police
         personnel, and the degree to which the interrogator’s
         questions treated the second round as continuous with the
         first.

Seibert, 542 U.S. at 615, 124 S. Ct. at 2612, 159 L. Ed. 2d at 657. The

police interrogation in this case meets each of those factors. The first

round of interrogation was extremely detailed and complete and, as I

have noted, the officers did not stop to administer Miranda warnings at

the first sign Tyler might be culpable—her admission that Baby Tyler

cried.     The two statements fully overlap; indeed, the officers simply

repeated     Tyler’s   statements   back   to   her    and    asked   for   an

acknowledgement that they were correct.         As in Seibert, “[t]he warned

phase of questioning proceeded after a pause of only 15 to 20 minutes, in

the same place as the unwarned segment.”              Id.   The same officers

conducted both interrogations. Finally, the officers expressly referred to

previous statements using phrases such as “you told me” and “you said.”

With every one of these factors satisfied, just as in Seibert, this

interrogation “by any objective measure reveal[s] a police strategy . . . to

undermine the Miranda warnings.” Id. at 616, 124 S. Ct. at 2612, 159 L.

Ed. 2d at 657.

         Additionally, the officers took no curative measures once they

finally administered warnings. See Seibert, 542 U.S. at 622, 124 S. Ct.

at 2616, 159 L. Ed. 2d at 661 (Kennedy, J., concurring in the judgment)

(“If the deliberate two-step strategy has been used, postwarning
                                    74

statements that are related to the substance of prewarning statements

must be excluded unless curative measures are taken before the

postwarning statement is made.”). Only fifteen minutes passed between

the prewarning statements and the first Miranda warning at the police

station, leaving Tyler insufficient time “to distinguish the two contexts

and appreciate that the interrogation ha[d] taken a new turn.” See id.;

see also Aguilar, 384 F.3d at 525 (suppressing a confession when the

“two interrogations were not separated in time, occurred in the same

interrogation   room,   and   the   same   officers   participated   in   the

questioning”). Compare Vasquez v. State, 453 S.W.3d 555, 574–75 (Tex.

App. 2015) (concluding officers did not undertake curative measures

when they provided Miranda warnings after just a short bathroom

break), with United States v. Courtney, 463 F.3d 333, 339 (5th Cir. 2006)

(concluding a properly Mirandized confession made “more than one year”

after an unwarned confession need not be suppressed).

      Further, the officers interrogating Tyler did not augment the

Miranda warning with an additional disclosure that her previous

unwarned statements might be inadmissible against her.         See Seibert,

542 U.S. at 622, 124 S. Ct. at 2616, 159 L. Ed. 2d at 661. Instead, after

administering the Miranda warnings at the police station and at the

hospital, the officers expressly brought to Tyler’s attention and actively

used the inculpatory statements she had made before the warnings. See

Martinez v. State, 272 S.W.3d 615, 626–27 (Tex. Crim. App. 2008)

(including abstention from reference to the prior statement among a list

of nonexhaustive curative measures gleaned from the Seibert plurality

and concurring opinions). Thus, no matter which opinion sets forth the

controlling Seibert rule, the officers violated it and Tyler’s statements

should be suppressed.
                                         75

       IV. Voluntariness.

       After watching the video of the police station interrogation in this

case, I find Tyler’s physical condition and her emotional state

substantially augment the factors mentioned above in creating a

custodial environment during all of the questioning.                     The video

establishes beyond dispute that Tyler’s depleted physical condition was

accompanied       and    aggravated      by    utter   emotional      despondency.

Notwithstanding       her    obvious     physical      and    extreme     emotional

vulnerability, however, the officers forged ahead with more than three

hours of interrogation. They stopped and took her to the hospital, where

she underwent surgery and was treated for blood loss, 18 only after they

were confident they had secured admissions supporting the essential

elements of first-degree murder.              Thus, under the circumstances

presented here, I am persuaded that, apart from the Seibert issue, Tyler’s

depleted physical and emotional state rendered all of her statements to

the officers involuntary.      See State v. Alspach, 524 N.W.2d 665, 667

(Iowa 1994) (“A contention that a defendant’s statements were taken in

violation of his [or her] Miranda rights and a contention that the

statements were not voluntary are separate issues.”).
       In determining whether statements are voluntary, we consider

“[m]any factors,” including “the defendant’s physical and emotional

condition.” State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982). In this

case, Tyler’s depleted physical condition and despondent emotional

condition carry significant weight.           Several cases from other courts

confirm that a highly vulnerable defendant’s statements are more likely

        18Tyler’s repeated denials when asked at her residence and again at the police

station whether she needed medical attention informs and confirms my overall
assessment of how poorly she was functioning physically and emotionally during the
interrogation.
                                      76

to be involuntary, and I find them instructive here. See, e.g., Effland v.

People, 240 P.3d 868, 878 (Colo. 2010) (en banc) (concluding statements

were involuntary when the defendant was suffering from extreme

depression and had recently attempted suicide, and the “officers were

fully aware of [his] mental condition and the failed suicide attempt at the

time of the interrogation”); People v. Humphrey, 132 P.3d 352, 362–63

(Colo. 2006) (affirming a trial court’s determination that a detective’s

interrogation was coercive “given [the defendant]’s weak and vulnerable

state”); State v. Marshall, 642 N.W.2d 48, 55–56 (Minn. Ct. App. 2002)

(finding statements involuntary in part because the defendant “became

so emotionally upset that she cried . . . and had difficulty breathing” and

officers expressed concern about a need for medical assistance but did

not cease questioning); Xu v. State, 100 S.W.3d 408, 414–15 (Tex. App.

2002) (suppressing statements made after a defendant accused of killing

his wife had been at the police station for hours, “was intermittently

crying and clutching [his wife]’s picture,” and became “so distraught[] it

took almost twenty minutes to calm him down”).

       V. The Hospital Interrogation.

       Tyler’s confession at the hospital did not cure the infirmity of the

earlier police station confession and, in my view, should also be

suppressed. The same officers conducted the serial interrogations less

than   twenty-four   hours   apart.        The   substance   of   the   hospital

interrogation reveals the officers’ purpose was to have Tyler again repeat

the inculpatory statements she made before she received the Miranda

warnings.     Both officers repeatedly referenced the previous day’s

conversations, asking Tyler if she remembered their names, if she

remembered receiving Miranda warnings the day before, and even

expressly referencing Tyler’s previous statements with phrases such as
                                           77

“At some point I think you said . . . .” Early in Iowa’s history, this court

concluded an invalid first confession rendered a second confession

invalid even though ten months separated them. State v. Chambers, 39

Iowa 179, 183 (1874) (“[B]elieving the first confession admissible, the

strong probability is that [the defendant] concluded a repetition could

make the case no worse, and the last confession was made under the

influence of the preceding one.”). We reversed the defendant’s conviction

despite that long temporal divide between the interrogation sessions. See

id.   I would apply the same principle here where the sessions were

separated by less than twenty-four hours.

       VI. Conclusion.

       The interrogating officer in Seibert candidly admitted a strategy to

“question first, then give the warnings.” Seibert, 542 U.S. at 606, 124 S.

Ct. at 2606, 159 L. Ed. 2d at 651 (plurality opinion).                   Although the

interrogating officers in this case did not expressly acknowledge an

identical strategy, their failure to do so cannot be dispositive.19 See id. at

616 n.6, 124 S. Ct. at 2612 n.6, 159 L. Ed. 2d at 657 n.6 (recognizing

that officers’ subjective intent to delay Miranda warnings until after

inculpatory statements are made will “rarely be . . . candidly admitted”
and recommending a “focus . . . on facts apart from intent that show the

question-first tactic at work”).        If express acknowledgement of such a

strategy were dispositive, Seibert would provide an implausibly narrow

fact-specific rule and officers could avoid the mandate of Miranda


       19Notwithstanding    the absence of such an explicit admission by the officers in
this case, their strategy of questioning Tyler first and warning her later is unmistakable
on this record. Just prior to transporting Tyler to the police station, the officers are
overheard conferring among themselves about the word choices they would use in
questioning Tyler about whether Baby Tyler was born alive.              They decided the
interrogating officer driving Tyler to the station should not ask whether the baby was
born alive, but whether it cried or moved.
                                     78

without consequence as long as they did not admit their strategy.

Rather, I agree with the Supreme Court’s observation that it is

“unrealistic to treat two spates of integrated and proximately conducted

questioning as independent interrogations subject to independent

evaluation simply because Miranda warnings formally punctuate them in

the middle.” Id. at 614, 124 S. Ct. at 2611, 159 L. Ed. 2d at 656.

      The same should be said in this case for obvious reasons. If police

can cure Miranda violations by simply taking a break in the interrogation

and giving the required warnings after securing a confession, law

enforcement officers will always be powerfully encouraged to question

first and warn later. As the plurality opinion explained in Seibert, that

kind of strategy actively avoids fulfilling Miranda’s prophylactic objective:

      Upon hearing warnings only in the aftermath of interrogation
      and just after making a confession, a suspect would hardly
      think he had a genuine right to remain silent, let alone
      persist in so believing once the police began to lead him over
      the same ground again. A more likely reaction on the
      suspect’s part would be perplexity about the reason for
      discussing rights at that point, bewilderment being an
      unpromising frame of mind for knowledgeable decision.
      What is worse, telling a suspect that “anything you say can
      and will be used against you,” without expressly excepting
      the statement just given, could lead to an entirely reasonable
      inference that what he has just said will be used, with
      subsequent silence being of no avail.

Id. at 613, 124 S. Ct. at 2611, 159 L. Ed. 2d at 655–56 (footnote

omitted).   This quotation from Seibert succinctly explains why the

question-first-warn-later approach utilized by the officers in interrogating

Tyler does violence to the Miranda rule and should not be condoned here.

      I respectfully dissent in part because I conclude Tyler was in

custody at all times after she was taken from her residence. Her motion

to suppress should have been granted because all of her statements to

the officers in the car, at the police station, and at the hospital were the
                                  79

product of a violation of the Miranda rule and because they were

involuntarily made.

      Wiggins and Appel, JJ., join this concurrence in part and dissent

in part.
                                          80

                                                          #13–0588, State v. Tyler

APPEL, Justice (concurring in part and dissenting in part).

        I concur in the majority’s resolution of the expert opinion issue and

the search and seizure issue. I dissent in the court’s treatment of issues

surrounding the custodial interrogation of Tyler.

        By a 4–3 margin, a majority of this court has concluded Tyler was

not in custody during the ride to the police station and during her

interview at the police station.        For the reasons expressed by Justice

Hecht, three justices, including myself, reach a different conclusion. A

slight variation in the facts could well have led to a different result.

Whether a person is in custody will turn on the facts of a particular case,

but I trust it clear this court will not tolerate a two-step confession

process in which law enforcement seeks to evade the requirements of

Miranda. 20

        In light of its conclusion Tyler was not in custody, the majority

does not reach the question of proper remedy in the event of unlawful

successive interviews. While I agree with Justice Hecht’s application of

Seibert under federal law, I write separately to emphasize that in my

view,     when   law   enforcement      improperly      engages     in   a   two-step
interrogation to defeat Miranda, the Iowa Constitution requires any

improperly obtained inculpatory statements be suppressed unless the

state meets the “fruit of the poisonous tree” test of Wong Sun v. United

States, 371 U.S. 471, 485–86, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454

(1963).



       20I note Tyler did not claim a different test should be utilized for determining

custody under the Iowa Constitution. Cf. State v. Kittredge, 97 A.3d 106, 111 (Me.
2014) (applying ten-factor test and noting the state bears the burden of proof of
showing lack of custody).
                                   81

      While the United States Supreme Court in Oregon v. Elstad took a

different approach, I find the dissents in that case much more persuasive

than the majority opinion. Compare 470 U.S. 298, 307–08, 105 S. Ct.

1285, 1292–93, 84 L. Ed. 2d 222, 231 (1985) (majority opinion) (finding

“[i]t is an unwarranted extension of Miranda to hold that a simple failure

to administer the warnings, unaccompanied by any actual coercion or

other circumstances calculated to undermine the suspect’s ability to

exercise his free will, so taints the investigatory process that a

subsequent voluntary and informed waiver is ineffective for some

indeterminate period”), with id. at 335, 105 S. Ct. at 1306–07, 84 L. Ed.

2d at 249 (Brennan, J., dissenting) (“The correct approach . . . is to

presume that an admission or confession obtained in violation of

Miranda taints a subsequent confession unless the prosecution can show

that the taint is so attenuated as to justify admission of the subsequent

confession.”), and id. at 364–72, 105 S. Ct. at 1321–26, 84 L. Ed. 2d at

268–73 (Stevens, J., dissenting). As noted by Justice Brennan in Elstad,

the linkage between the unlawful confession and subsequent post-

Miranda confession will ordinarily be clearly established. Id. at 321–24,

105 S. Ct. at 1299–1301, 84 L. Ed. 2d at 240–42 (Brennan, J.,

dissenting).   Further, under Miranda, there is a presumption that the

product of unwarned custodial interrogation is coerced. See id. If so,

Wong Sun provides the proper standard for admission of inculpatory

statements made after unwarned statements.       To hold otherwise is to

remove the strength of Miranda and encourage law enforcement to

engage in quasi-custodial interrogations in the hope that a confession

may be extracted without allowing the suspect to have the usual Miranda

warnings.
                                   82

      Further,   history   demonstrates      the   voluntariness   test   is

extraordinarily difficult to apply and leads to inconsistent results. See

Dickerson v. United States, 530 U.S. 428, 444, 120 S. Ct. 2326, 2336,

147 L. Ed. 2d 405, 420 (2000) (noting that the totality of the

circumstances test for voluntariness “is more difficult . . . for law

enforcement officers to conform to, and for courts to apply in a

consistent manner”); Louis Michael Seidman, Brown and Miranda, 80

Calif. L. Rev. 673, 729–30 (1992) (describing Justice Frankfurter’s

unsuccessful attempt to put spine into voluntariness). Indeed, that is

one of the reasons why the Miranda rule was adopted in the first place.

While not perfect, I view Miranda as an important protection to help

ensure interrogations are truly voluntary.

      My views are consistent with decisions from a number of other

state jurisdictions.   For example, in Commonwealth v. Smith, the

Supreme Judicial Court of Massachusetts rejected the Elstad approach.

593 N.E.2d 1288, 1295–96 (Mass. 1992). According to the Smith court, a

statement obtained in violation of Miranda is presumed to be tainted. Id.

at 1295. As stated in Smith:

      The presumption of taint was intended to deter law
      enforcement officials from circumventing the Miranda
      requirements by using the warnings strategically—first
      questioning the suspect without benefit of warnings, and
      then, having obtained an incriminating response or having
      otherwise benefitted from the coercive atmosphere, by giving
      the Miranda warnings and questioning the suspect again in
      order to obtain an admissible statement.

Id. at 1292. Further, the Smith court found, “This presumption [of taint]

supports one of the purposes of the ‘bright-line’ Miranda rule: to avoid

fact-bound inquiries into the voluntariness of confessions.” Id. at 1295–

96. As a result, the Smith court held the prosecution has the burden of
                                   83

showing a break in the stream of events in order to gain admission of the

subsequent incriminating statements. Id. at 1292, 1295.

      Appellate courts in Hawaii, New York, Tennessee, and Vermont

have reached a similar conclusion based on similar reasons. See State v.

Pebria, 938 P.2d 1190, 1196 (Haw. Ct. App. 1997) (rejecting Elstad under

Hawaii Bill of Rights); People v. Bethea, 493 N.E.2d 937, 938–39 (N.Y.

1986) (per curiam) (rejecting Elstad under state constitution); State v.

Smith, 834 S.W.2d 915, 919 (Tenn. 1992) (adopting approach of Justice

Brennan under state constitution); State v. Barron, 16 A.3d 620, 626–27

(Vt. 2011) (endorsing the “fruit of the poisonous tree” analysis under

state constitution).

      I agree with the approach of these state authorities. On the record,

I would find there was no “break in the stream of events” sufficient to

allow for the admission of subsequent interrogation under Wong Sun.

See Elstad, 470 U.S. at 326, 345–46, 105 S. Ct. at 1302, 1312, 84 L. Ed.

2d at 243, 255 (Brennan, J., dissenting) (internal quotation marks

omitted).

      Wiggins and Hecht, JJ., join this concurrence in part and dissent

in part.
                                   84
                                                 #13–0588, State v. Tyler


WATERMAN, Justice (concurring in part and dissenting in part).

      I respectfully concur in part IV and dissent from part III of the

majority opinion.    The majority correctly concludes the district court

properly denied Tyler’s motion to suppress her confessions that she

drowned her baby in the bathtub.          Yet, the majority erroneously

concludes the district court abused its discretion by allowing the medical

examiner to testify as to the cause and manner of death because he

relied on the same voluntary confessions the jury was allowed to hear.

Medical experts testifying in our courts routinely rely on patient

histories.   Medical examiners such as Dr. Thompson are no different.

The medical examiner has a statutory duty to investigate and determine

the cause and manner of the suspicious death of a child.       Iowa Code

§ 331.802(2)(a) (2015).   Why fault Dr. Thompson for considering the

mother’s own incriminating statements as to how she killed her baby?

      The majority breaks from long-standing Iowa law liberally allowing

expert testimony, including testimony based on witness statements or

patient histories.    The majority acknowledges that “we have been

committed to a liberal view on the admissibility of expert testimony.”

Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). Indeed,

Iowa courts have been committed to a liberal standard for over seventy

years. See Grismore v. Consol. Prods. Co., 232 Iowa 328, 343, 5 N.W.2d

646, 655 (1942) (“The modern tendency of the courts everywhere is to

take a more liberal and rational view respecting the admissibility and

scope of [expert] testimony.”); see also Leaf v. Goodyear Tire & Rubber

Co., 590 N.W.2d 525, 530–31 (Iowa 1999) (noting the “expansive scope”

of expert testimony under Iowa R. Evid. 5.702). In my view, we should

continue to trust our adversary system to expose weaknesses in an
                                    85

expert’s opinions and trust our juries to give appropriate weight to expert

testimony in this case and generally.        The majority’s opinion will

inevitably lead to the exclusion of a wide variety of expert opinion

testimony based on witness accounts.

      The majority opinion rests on a false premise—that Dr. Thompson

based his opinion as to the cause (drowning) and manner (homicide) of

death solely on Tyler’s statements to the police.    To the contrary, his

testimony confirms he based his opinions on his autopsy findings, lab

reports, and the physical evidence at the crime scene as well as Tyler’s

confession. Dr. Thompson conducted a thorough physical examination

of the deceased infant and sent organs to three outside specialists for

testing.   Through his own investigation, he was able to rule out

congenital defects, substance abuse, infections, and skeletal trauma as

alternate causes of death. He explained what he relied on to determine

the infant’s cause of death was drowning:

           Q. Do you have an opinion as to a reasonable degree
      of medical certainty regarding the cause of death in this
      case? A. Yes, I do.

            Q. And what is it? A. The cause of death is drowning.

            Q. And what do you base your opinion on? A. My
      opinion is based on a combination of history, which includes
      scene findings, it includes witness statements; it’s also based
      on a combination of physical exam, which is my autopsy
      findings; and then supplemental testing.

            Q. Supplemental testing, for example, when you sent
      certain organs to a specialist to examine; is that correct? A.
      Supplemental lab testing would be x-rays, microbiology,
      metabolic studies.

            Q. Okay. Toxicology? A. Toxicology.

Dr. Thompson also explained how he determined the manner of death

was homicide:
                                    86
            Q. What is your opinion based on? A. Just like cause
      of death, my manner of death opinion is based on history,
      again, scene findings, witness statements; it’s based on a
      physical exam, or the autopsy; and then supplemental lab
      testing.

      Dr. Thompson’s autopsy findings corroborated Tyler’s confession

that her baby was born alive, moved, cried, and took some breaths before

being drowned in bathwater. Dr. Thompson testified that there was fluid

that could be bathwater in the baby’s lungs consistent with drowning.

Secondly, he testified that the expanded alveoli in Baby Tyler’s lungs
indicate the infant was probably born alive:

            Q. In this case, is there any evidence that this baby
      took a breath? A. There could be, yes.

             Q. Explain that, please. A. When I looked under the
      microscope, the – there’s a structure in the lungs called
      alveoli, which are a grape-like structure. Some of those
      structures were expanded, which could be consistent with
      Baby Tyler taking a few breaths.

            ....

            Q. Do you have an opinion to a reasonable degree of
      medical certainty as to what that [partially expanded alveoli]
      indicates to you? A. Given the history that Baby Tyler cried
      and moved, to me that suggests that Baby Tyler probably
      took a few breaths.

      The majority recognizes that “in making these determinations

[about cause and manner of death], medical examiners routinely rely on

the circumstances that surround the death, as revealed by independent
investigation, police investigation, and eyewitness accounts.” (Emphasis

added.) I agree. As Dr. Thompson testified:

            Q. In your role as a medical examiner, how do these
      witness statements and your knowledge of the scene, how
      important is that in determining a diagnosis of manner and
      cause of death? A. Uh, it’s vital.
            Q. And explain that, please.     A.  Um, so I’m a
      physician first. Um, as I’ve been saying, my diagnosis,
      which we call cause of death, is based on history, physical
                                        87
       exam, and then supplemental lab testing. Um, if I just did
       the physical exam, I would miss a significant number of
       cause and manner of death. It would be similar to you going
       to your primary care physician, sitting down on his exam
       table and just having -- have him start listening to your
       lungs, looking in your ears, checking your eyes without him
       asking you what’s wrong. I can’t obviously ask my patients
       what’s wrong with them, so I have to ask other people what’s
       wrong. I have to ask police what’s wrong. Sometimes
       witnesses will come forward and say what’s wrong or what
       happened. So that part of my diagnosis or cause of death,
       the history, is absolutely essential.
              ....
             So in every single case that I do, it’s always history,
       physical exam, and lab tests, just like when you go see your
       physician.

       It is well established that physicians may rely on self-reported

patient histories. See, e.g., Walker v. Soo Line R.R., 208 F.3d 581, 586

(7th Cir. 2000) (“Medical professionals reasonably may be expected to

rely   on   self-reported   patient    histories.    Such    histories    provide

information upon which physicians may, and at times must, rely in their

diagnostic work.” (Citation omitted.)).       This applies equally to medical

examiners who must determine the cause and manner of death.                   See

Baraka v. Commonwealth, 194 S.W.3d 313, 315 (Ky. 2006) (“Indeed, the

facts and data in this case, information regarding the circumstances of

the victim’s death provided by investigating officers, is exactly the kind of

information    customarily    relied   upon    in   the   day-to-day     decisions

attendant to a medical examiner’s profession.”); Rollins v. State, 897 A.2d

821, 851 (Md. 2006) (“[W]e disagree with [the] contention that [an expert]

relied upon improper information to render her expert opinion.               [The

expert’s] consideration of the medical examiner’s file in its entirety was

proper. She testified that a review of all aspects of the file, including the

criminal investigation, was necessary to form her opinion and was the

accepted practice in her field.”), abrogated on other grounds as recognized
                                    88

by Derr v. State, 29 A.3d 533, 549 (Md. 2011); State v. Wilson, 248 P.3d

315, 324–25 (N.M. 2010) (allowing a forensic pathologist to “consider

evidence beyond the medical record” in forming his medical opinion),

overruled on other grounds by State v. Tollardo, 275 P.3d 110, 121 (N.M.

2012); State v. Commander, 721 S.E.2d 413, 420 (S.C. 2011) (“Because

the anecdotal history is an essential component of any autopsy, we find

testimony concerning findings based on this information falls within the

umbrella of the expert’s specialized knowledge.”); State v. Boyer, 741

N.W.2d 749, 757 (S.D. 2007) (“Although [the medical examiner]

considered extrinsic information in reaching his opinion, he further

explained that receiving extrinsic evidence was widely accepted in the

medical field . . . .”); State v. Tucker, 96 P.3d 368, 371 (Utah Ct. App.

2004) (“[The expert] testified that medical examiners regularly rely upon

investigative information when forming their opinions. This practice is

also supported in case law throughout the United States that examines

this issue.”).

      These courts agree that medical examiners may rely on disputed

witness testimony, with cross-examination as the proper tool to explore

weaknesses in the opinions. See Walker, 208 F.3d at 586 (“In situations

in which a medical expert has relied upon a patient’s self-reported

history and that history is found to be inaccurate, district courts usually

should allow those inaccuracies in that history to be explored through

cross-examination.”); Baraka, 194 S.W.3d at 315 (“It has been long held

that such underlying factual assumptions are properly left for scrutiny

during cross-examination.”); Rollins, 897 A.2d at 853 (“All experts . . .

were subject to cross-examination about their findings; once the experts’

opinions were admitted, it was within the province of the trier of fact to

determine which expert should be believed.”); Wilson, 248 P.3d at 325
                                      89

(“Defendant was free to persuade the jury that [the expert’s] opinion

relied too much on a questionable confession and not enough on hard

science.     The jury remained the ultimate arbiter of [the expert’s]

credibility, and it was free to reject his opinion and conclude that [the

victim’s] death was caused by natural causes.”).

      Dr. Thompson was vigorously cross-examined and conceded his

autopsy findings could also be consistent with a stillborn child with

amniotic fluid in the lungs and alveoli expanded by gases released after

death.     He acknowledged he was unable to determine the cause and

manner of death until viewing Tyler’s confession. These weaknesses go

to the weight of his opinion testimony, not its admissibility. See Williams

v. Hedican, 561 N.W.2d 817, 823 (Iowa 1997) (“ ‘ “[A]n expert’s lack of

absolute certainty goes to the weight of this testimony, not to its

admissibility.” ’ ” (alteration in original) (quoting State v. Buller, 517

N.W.2d 711, 713 (Iowa 1994))); Hutchison v. Am. Family Mut. Ins. Co.,

514 N.W.2d 882, 888 (Iowa 1994) (“[W]e believe with the aid of vigorous

cross examination, the jury is fully capable of detecting the most

plausible explanation of events.”).

      The cases the majority relies on are distinguishable. In People v.

Eberle, an appellate court held the trial court erred by denying the

defendant’s motions to suppress the statements relied on by the medical

examiner.     697 N.Y.S.2d 218, 219–20 (App. Div. 1999).      The medical

examiner’s opinion that an infant’s death was “homicidal suffocation”

rather than Sudden Infant Death Syndrome (SIDS) was based on the

statements alone, not any “medical evidence.”           Id. at 219.    The

statements, obtained in violation of defendant’s right to counsel, were the

fruit of the poisonous tree.    Id. at 219–20.     The suppression remedy

would be empty if the jury nevertheless heard the inadmissible
                                     90

statements through the medical examiner.        By contrast, the majority

correctly holds Tyler’s confessions were properly admitted into evidence.

Dr. Thompson was entitled to rely on the same confessions the jury

heard, in addition to the medical evidence (his autopsy findings) that

corroborated Tyler’s self-incriminating statements to police.

      The majority relies on other cases that did not involve a medical

examiner relying on the defendant’s confession. In State v. Vining, the

medical examiner testified that “none” of the physical evidence supported

her opinion that the fatal head injury “was caused at the hands of

another as opposed to an accidental fall.”      645 A.2d 20, 21 n.1 (Me.

1994). Dr. Thompson, however, testified that his opinion was supported

by the physical findings of his autopsy, lab tests, and physical evidence

at the crime scene, as well as Tyler’s confessions, and explained how the

forensic evidence corroborated her history of the drowning death.       In

Maxwell v. State, the medical examiner was unable to determine the

cause of death from his autopsy, and his opinion that the manner of

death was homicide “was based entirely upon the circumstances

surrounding Gina Maxwell’s demise as related to him by a detective

working on the case.” 414 S.E.2d 470, 473–74 (Ga. 1992), overruled on

other grounds by Wall v. State, 500 S.E.2d 904, 907 (Ga. 1998).       The

medical examiner “admitted that his opinion as to the manner of death

‘[was] based on things the jury could determine themselves.’ ” Id. at 474

(alteration in original).   That is not so in this case.   The jury needed

expert medical testimony to explain the significance of the fluid found in

the infant’s lungs and the partially expanded alveoli. Nor does State v.

Jamerson help the majority. 708 A.2d 1183 (N.J. 1998). The medical

examiner in that case strayed outside his zone of medical competence by

acting as an accident reconstructionist in determining the defendant
                                         91

drove recklessly. See id. at 1194–95. By contrast, Dr. Thompson simply

did what medical examiners are trained to do.

      Other cases cited by the majority conclude the use of the word

“homicide” implies criminal guilt or intent, and prohibit medical

examiners from testifying on that basis.       State v. Sosnowicz, 270 P.3d

917, 922 (Ariz. Ct. App. 2012) (“[The expert]’s testimony that the victim

died as the result of a ‘homicide’ went to the key issue in the case: Did

defendant intentionally, knowingly or recklessly cause the victim’s death

by a criminal act or was the victim’s death the result of a non-criminal

accident?”); People v. Perry, 593 N.E.2d 712, 716 (Ill. App. Ct. 1992) (“In

fact, it might be construed as prejudicial, since a layperson might equate

the word homicide with murder.”); Eberle, 697 N.Y.S.2d at 219

(“Moreover, the expert’s statement that the infant died from ‘homicidal’

suffocation   improperly   states    a    conclusion   regarding   defendant’s

intent.”); Bond v. Commonwealth, 311 S.E.2d 769, 771–72 (Va. 1984)

(finding medical examiner impermissibly testified to an ultimate issue of

fact—death by homicide).            These cases are inapposite, because

Dr. Thompson testified that “homicide,” as used in his report, is a

neutral medical term:

            Q. And in this case, did you form an opinion to a
      reasonable degree of medical certainty regarding manner of
      death? A. Yes, I did.
            Q. And what is your opinion? A. In the manner of
      death is homicide.
             Q. And what does that mean?           Homicide.     A.
      Homicide is a medical term. It’s a neutral term. It doesn’t
      signify right or wrong. It simply means death at the hands of
      another individual.

Such explanatory testimony is lacking in the foregoing cases relied upon

by the majority. Tyler does not challenge the jury instructions given in

this case, which correctly set forth the elements of the crimes charged.
                                      92

The district court properly allowed Dr. Thompson to testify regarding the

medical definition of homicide.

      The   majority   inaccurately    refers   to   Tyler’s   confessions    as

“uncorroborated.”      To the contrary, the police investigation and

Dr. Thompson’s medical investigation corroborate key factual statements

in her confessions. During Tyler’s first police interview, she described

giving birth while standing up, which is corroborated by a bruise noted

in the autopsy on Baby Tyler’s forehead where he hit the floor of the

bathroom. The police found key physical evidence—the placenta and the

scissors used to cut the exposed umbilical cord—exactly where Tyler said

she put them.    Most importantly, Dr. Thompson’s autopsy findings of

fluid in the infant’s lungs and expanded alveoli corroborate her

description of how she filled the tub with water and placed Baby Tyler,

born alive, face down in the bathwater to drown.               Dr. Thompson’s

medical evaluation of Baby Tyler corroborated Tyler’s confession.            See

State v. Polly, 657 N.W.2d 462, 467 (Iowa 2003) (“ ‘Corroboration need

not be strong nor need it go to the whole case so long as it confirms some

material fact connecting the defendant with the crime.’ ” (quoting State v.

Liggins, 524 N.W.2d 181, 187 (Iowa 1994))).

      Dr. Thompson did not merely parrot Tyler’s confession to the jury;

he considered her account in the context of his medical conclusions from

the autopsy and lab tests.         Dr. Thompson admittedly could not

determine the cause and manner of death without Tyler’s confession.

That does not mean his opinion rests on her confession alone.                As

medical examiners routinely do, he relied on his autopsy findings, lab

test results, and physical evidence as well as the history provided by the

only person present at the time of the baby’s death. I would not exclude
                                           93

testimony of medical witnesses because they necessarily rely on the

history provided by family members present at the time of death.

       I disagree with the majority’s conclusion that “Dr. Thompson’s

opinions were inadmissible because they amounted to an impermissible

comment on Tyler’s credibility.” The majority relies on State v. Dudley in

which we concluded the prosecution’s expert improperly vouched for the

credibility of the child sex-abuse victim, not the defendant. 856 N.W.2d

668, 676–77 (Iowa 2014).             Such precedent is inapplicable to expert

testimony relying in part on an adult defendant’s voluntary confession to

establish the factual cause and manner of death. None of our court’s

precedent that culminated in Dudley involved a defendant arguing the

State’s expert improperly vouched for the defendant’s credibility. Tyler,

who did not testify at trial, is complaining Dr. Thompson “vouched for”

what Tyler herself told police.          This is a far cry from Dudley, which

involved a “he-said, she-said” swearing contest that turned on whether

the jury believed Dudley (who denied abusing the victim), or the child

victim (who said Dudley abused her).              The State could gain an unfair

advantage through expert testimony introduced to bolster the credibility

of a victim testifying against the defendant. See id. That concern is not

implicated when an expert relies on the defendant’s own words as to

what happened. 21

       Significantly,      Dr. Thompson         never     commented         on    Tyler’s

credibility, state of mind, or guilt in the presence of the jury. He gave no

opinion as to her motive or intent.             He simply relied, in part, on her

       21Itis true Tyler initially denied her baby was born alive before confessing, twice,
that it moved and cried and she drowned the infant in the bathwater. Yet, as the
majority and district court correctly found, Tyler’s confessions were voluntary. Why
would she make up the story? There is no evidence Tyler was coerced or duped into
confessing through a promise of leniency. Why preclude a medical expert from relying
on confessions deemed reliable enough for the jury to hear?
                                      94

confessions for determining the physical cause and manner of death. As

the majority recognizes, the term “homicide” as used by medical

examiners such as Dr. Thompson “expresses no opinion as to the

criminality of the killing or the culpability of the killer.”     A medical

examiner testifying that the manner of death is homicide is rendering a

neutral medical opinion, one required by statute.           See Iowa Code

§ 331.802(2)(a)   (“[T]he   county   medical   examiner   shall   conduct   a

preliminary investigation of the cause and manner of death, prepare a

written report of the findings, . . . and submit a copy of the report to the

county attorney.”). For a killing to be a crime, the requisite intent must

be present. See id. §§ 707.1–.5. Intent, and therefore guilt or innocence,

is for the jury to determine.

      Most courts agree the expert medical examiner only crosses the

line by testifying to the intent or guilt of the defendant. See Commander,

721 S.E.2d at 420 (“Of the many courts in other jurisdictions that have

considered where to draw the line in these cases, we tend to agree with

those courts that have found that expert testimony addressing the state

of mind or guilt of the accused is inadmissible.”). Dr. Thompson did not

cross this line. See id.; Willis v. State, 558 S.E.2d 393, 395 (Ga. 2002)

(“Because this testimony did not improperly invade the province of the

jury on the ultimate issue of whether the death was an intentional killing

or an accident, the trial court did not err . . . .”); Baraka, 194 S.W.3d at

318 (“Accordingly, most jurisdictions . . . hold that a qualified expert can

express an opinion that the manner of a disputed death was

homicide, . . . though not that the homicide was intentional, wanton,

reckless, or accidental, which would constitute an opinion as to the guilt

or innocence of the defendant.”); Rollins, 897 A.2d at 851–52 (discussing

how all expert testimony is designed to bolster one view of the facts,
                                     95

which does not invade the province of the jury); State v. Dao Xiong, 829

N.W.2d 391, 397 (Minn. 2013) (“Here, the district court properly

admitted [the expert’s] testimony that the manner of [the victim’s] death

was homicide. . . .   [I]t did not constitute improper expert testimony

regarding [the defendant’s] intent. [The expert’s] testimony assisted the

jury’s understanding of the medical evidence offered at trial by explaining

that the autopsy results were consistent with homicide. . . .            [The

expert’s] testimony as to [the victim’s] manner of death was based on [the

expert’s] examination of [the victim’s] body.”); State v. Bradford, 618

N.W.2d 782, 793 (Minn. 2000) (holding an examiner could testify to

homicide as a manner of death, but not offer an opinion regarding

intent); Boyer, 741 N.W.2d at 758 (“We finally note that neither expert

usurped the function of the jury by testifying that [the victim] actually

died as a result of being shaken or thrown down. Nor did the experts

opine whether they thought [the defendant] was guilty.”); Tucker, 96 P.3d

at 371 (“In light of [the expert’s] testimony that intent was not a factor in

classifying [the victim’s] death, and that intent is a question for the jury,

we see no error in the trial court’s rulings.”); State v. Richardson, 603

A.2d 378, 379 (Vt. 1992) (“The testimony [that the manner of death was

homicide] was not a comment on defendant’s guilt or innocence.”); State

v. Scott, 522 S.E.2d 626, 632 (W. Va. 1999) (“Because the term ‘homicide’

is neutral and pronounces no judgment, we do not find that [the expert]

testifying that [the victim’s] manner of death was homicide removed any

defense available to [the defendant]. In fact, [the expert] testified that his

opinion was not a legal conclusion—that he was neither trained nor

qualified to render a legal conclusion concerning [the victim’s] death.”). I

would follow these well-reasoned decisions. Medical examiners should

be allowed to rely on witness accounts, including a defendant’s
                                     96

confession, in testifying the manner of death was homicide so long as

they do not testify that the defendant is “guilty” or has criminal intent.

      I fear today’s majority opinion will have unintended consequences.

Going forward, will an accident reconstructionist be allowed to give

opinions based on witness statements? May a forensic accountant rely

on a defendant’s confession to embezzlement or consider deposition

testimony to determine a spouse dissipated marital assets?            May a

human-factors expert rely on disputed testimony as to how an accident

happened when opining on the efficacy of a warning or safety of a

product design?     May a hydrologist rely on disputed testimony or a

party’s   admissions    to   determine     the   source    of   groundwater

contamination?     May medical witnesses continue to rely on patient

histories?   After today’s decision, it appears such testimony could be

excluded from evidence any time the expert admits his opinion depends

on the witness’s account of what happened. This is an unwarranted and

ill-advised sea change in our heretofore liberal approach to the

admissibility of expert testimony.

      We have routinely allowed expert testimony based on witness

testimony or statements. Is the expert thereby indirectly vouching that

the witness is telling the truth? Do these cases remain good law? See,

e.g., In re Det. of Stenzel, 827 N.W.2d 690, 702 (Iowa 2013) (concluding

expert testimony based on an interview with defendant and defendant’s

criminal history was sufficient to show that defendant had “a mental

abnormality and had serious difficulty controlling his behavior”); Leaf,

590 N.W.2d at 530 (affirming admissibility of expert’s opinion on product

defect that depended on plaintiff’s recollection of events); Olson v.

Nieman’s, Ltd., 579 N.W.2d 299, 308 (Iowa 1998) (discussing how expert

considered statements of a third party when determining if an invention
                                           97

meets the nonobvious requirement of a patent); Johnson v. Knoxville

Cmty. Sch. Dist., 570 N.W.2d 633, 639–40 (Iowa 1997) (discussing how

expert relied on a two-hour interview, case documentation, and a family

member’s journal detailing plaintiff’s symptoms to support opinion that

plaintiff suffered from obsessive compulsive disorder); State ex rel. Leas

in re O’Neal, 303 N.W.2d 414, 417 (Iowa 1981) (permitting clinical

psychologist acting as an expert witness to use psychological testing and

interviews to determine that parents were psychologically unfit to care for

a child). 22 These are just a few of the cases that could have gone the

other way, had the majority’s opinion been the rule of law when they

were decided.

       Finally, I note the State failed to argue on appeal that any error in

the admission of Dr. Thompson’s testimony was harmless. The court of

appeals concluded the error was not harmless. Given Tyler’s confession,

I am not so sure.        Several decisions cited by the majority held it was

harmless or nonprejudicial error to allow a medical examiner to testify

that the death was a homicide. Sosnowicz, 270 P.3d at 925–26; Perry,

593 N.E.2d at 717. The dissent in Dudley concluded that the admission

of the expert testimony in that case was harmless. 856 N.W.2d at 684–

85 (Cady, C.J., dissenting). I would trust our juries to give the expert

testimony proper weight. But, because the State failed to argue harmless


       22Decisions   of the court of appeals would likewise be called into question by the
majority’s decision. See, e.g., State v. Gilmore, No. 11–0858, 2012 WL 3589810, at *5–6
(Iowa Ct. App. Aug. 22, 2012) (allowing psychologist to consider defendant’s interview to
determine that defendant could form the specific intent to kill); State v. Favara, No. 02–
1311, 2003 WL 21920959, at *1–2 (Iowa Ct. App. Aug. 13, 2003) (allowing sheriff’s
deputy to testify as an expert witness as to how he believed a burglary took place after
he “investigated the crime scene, photographed and weighed the items, and conducted
interviews”); In re Det. of Rafferty, No. 01-0397, 2002 WL 31113930, at *1 (Iowa Ct. App.
Sept. 25, 2002) (concluding that expert could base his opinion that a person is a
sexually violent predator and likely to reoffend on a clinical interview, official records,
and actuarial assessment tools).
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error in its appellate brief or application for further review, the majority

could properly find it waived that issue.          See Iowa R. App. P.

6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be

deemed waiver of that issue.”).

      The district court, relying on our traditional liberal approach to the

admissibility of expert testimony, correctly denied Tyler’s motion to

suppress Dr. Thompson’s testimony and autopsy report stating the cause

and manner of Baby Tyler’s death. The district court properly equated

Dr. Thompson’s reliance on Tyler’s confessions to “a physician relying on

a patient’s history in reaching a diagnosis.”      I would affirm Tyler’s

conviction.

      Cady, C.J., and Mansfield, J., join this concurrence in part and

dissent in part.
