HF 657 (LSB 2472HV (4) 90)

HOUSE FILE 657

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO HF 426)

A BILL FOR

An Act relating to the preservation of biological evidence collected in relation to a criminal investigation, testimony by an incarcerated witness, and postconviction access to investigative files in a criminal case.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

DIVISION I
PRESERVATION OF BIOLOGICAL EVIDENCE IN CRIMINAL INVESTIGATIONS

    Section 1.  Section 81.1, Code 2023, is amended by adding the following new subsections:
   NEW SUBSECTION.  01.  “Agency” means any governmental or public entity within the state and its officials or employees including but not limited to law enforcement agencies, county attorney offices, courts, public hospitals, the state criminalistics laboratory or similar qualified laboratory, and any other entity or individual charged with the collection, storage, or retrieval of biological evidence.
   NEW SUBSECTION.  1A.  “Biological evidence” means any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable biological material that was collected as part of a criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense. This applies to material that is cataloged separately or is present on other evidence including but not limited to clothing, ligatures, bedding or other household materials, drinking cups, or cigarettes.
   NEW SUBSECTION.  1B.  “Custody” means a person who has been arrested, is currently incarcerated, has been civilly committed, is on parole or probation, or who is subject to sex offender registration requirements.
    Sec. 2.  NEW SECTION.  81.5A  Preservation of biological evidence.
   1.  Except as provided in section 709.10 concerning the gathering and preservation of sexual abuse evidence collection kits, all biological evidence collected involving a felony or aggravated misdemeanor in an agency’s possession or control shall be preserved and stored by the agency as follows:
   a.  For cases resulting in a conviction or a deferred judgment, biological evidence shall be retained for the latter of either of the following:
   (1)  Twenty years from the date the defendant’s conviction becomes final.
   (2)  The period of time that the defendant or a codefendant remains in custody.
   b.  Except as provided in section 81.9, for cases not resulting in a conviction, biological evidence shall be preserved and stored until the expiration of the statute of limitations for the alleged offense.
   c.  A criminal or juvenile justice agency, as defined in section 692.1, shall retain biological evidence as provided in section 81.13, subsection 2.
   2.  The agency shall retain biological evidence in an amount and a manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence and in a manner reasonably calculated to prevent contamination or degradation of any biological evidence that might be present, subject to a continuous chain of custody, and securely retained with sufficient official documentation to locate the evidence.
   3.  All records documenting the possession, control, storage, and destruction of biological evidence related to a criminal investigation or prosecution of an offense referenced in this section shall be retained.
   4.  Upon written request by a defendant, the agency shall prepare an inventory of biological evidence relevant to the defendant’s case that is in the custody of the agency.
   5.  If evidence was destroyed in accordance with section 81.5B through a court order or other written directive, the agency shall provide the defendant with a copy of the documentation showing adherence with this section, the court order, or the written directive.
   6.  The agency shall not be required to preserve physical evidence on which biological evidence is found that is of such a size, bulk, or physical character as to render retention impracticable. When such retention is impracticable, a portion of the physical evidence likely to contain biological evidence shall be removed in a quantity sufficient to permit future DNA testing before returning or disposing of the remainder of the physical evidence.
   7.  Biological evidence shall not be destroyed when a codefendant, convicted of the same crime, remains in custody, and the agency shall preserve the evidence until all codefendants are released from custody.
    Sec. 3.  NEW SECTION.  81.5B  Destruction of biological evidence.
   Except as provided in section 709.10 concerning the gathering and preservation of sexual abuse evidence collection kits, an agency may destroy or dispose of DNA samples before the period required in section 81.5A expires if all of the following apply:
   1.  No other provision of federal or state law requires the agency to preserve the biological evidence.
   2.  a.  The agency sends a notice of intent to dispose of biological evidence by certified mail, return receipt requested, or by a delivery service that provides proof of delivery, to the following:
   (1)  Any victim as defined in section 915.10.
   (2)  Any individual who remains in custody based on a criminal conviction related to the biological evidence.
   (3)  The private attorney or public defender of record for each individual related to the evidence.
   (4)  If applicable, the prosecuting agency responsible for the prosecution of each individual relating to the biological evidence.
   (5)  If applicable, the office of the attorney general.
   b.  The notification of intent to dispose of biological evidence shall include that the evidence may be destroyed one hundred eighty days after the date on which the agency received proof of delivery of the notice unless the notified party does either of the following:
   (1)  Files an application for DNA profiling under section 81.11.
   (2)  Submits a written request to the agency that the biological evidence be retained.
    Sec. 4.  NEW SECTION.  81.5C  Noncompliance with preservation requirements.
   1.  Following a request to produce biological evidence, an agency that is unable to produce biological evidence that is required to be preserved under section 81.5A shall provide an affidavit describing the efforts taken to locate the biological evidence and affirm that the biological evidence could not be located.
   2.  If the court finds that biological evidence was not preserved in accordance with section 81.5A, the court may conduct a hearing and impose appropriate sanctions and order appropriate remedies.
DIVISION II
INCARCERATED WITNESS TESTIMONY

    Sec. 5.  NEW SECTION.  804A.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Benefit” means any plea bargain, bail consideration, reduction or modification of sentence, or any other leniency, immunity, financial payment, reward, or amelioration of current or future conditions of a sentence that is requested, provided, or will be provided in the future in connection with, or in exchange for, the testimony of a incarcerated witness.
   2.  “Incarcerated witness” means a person who provides testimony, or who intends to provide testimony, during a criminal prosecution regarding statements made by a suspect or defendant while both the witness and the suspect or defendant were incarcerated, and who has requested, has been offered, or may in the future receive a benefit in connection with such testimony. “Incarcerated witness” does not include a person who is a confidential informant, codefendant, percipient witness, accomplice, or coconspirator in the criminal prosecution.
    Sec. 6.  NEW SECTION.  804A.2  Transparency in the use of incarcerated witness testimony.
   1.  In any criminal prosecution, not less than ninety days prior to a trial, the prosecuting attorney shall disclose its intent to introduce the testimony of an incarcerated witness regarding statements made by a suspect or defendant, while such witness and suspect or defendant were both incarcerated. The prosecuting attorney shall provide to the defense all of the following:
   a.  The criminal history of the incarcerated witness, including any pending or dismissed criminal charges.
   b.  The incarcerated witness’s cooperation agreement and any benefit that has been requested by, provided to, or will be provided in the future to the incarcerated witness.
   c.  The contents of any statement allegedly given by the suspect or defendant to the incarcerated witness and the contents of any statement given by the incarcerated witness to law enforcement regarding the statements allegedly made by the suspect or defendant, including the time and place such statements were given.
   d.  Any information regarding the incarcerated witness recanting testimony or statements, including the time and place of the recantation, the nature of the recantation, and the names of the people present at the recantation.
   e.  Any information concerning other criminal cases in which the testimony of the incarcerated witness was introduced or was intended to be introduced by a prosecuting attorney regarding statements made by a suspect or defendant, including any cooperation agreement and any benefit that the incarcerated witness received in such case.
   2.  The court may permit the prosecuting attorney to comply with the provisions of this section after the time period provided in subsection 1 if the court finds that the incarcerated witness was not known or the information described in subsection 1 could not be discovered or obtained by the prosecuting attorney exercising due diligence within the time period.
   3.  If the court finds that disclosing the information described in subsection 1 is likely to cause bodily harm to the incarcerated witness, the court may do any of the following:
   a.  Order that such evidence be viewed only by the defense counsel and not by the defendant or others.
   b.  Issue a protective order.
   4.  If the testimony of an incarcerated witness is admitted into evidence, the jury shall be instructed that such testimony was provided by an incarcerated witness and informed of any benefit that has been requested by, provided to, or will be provided in the future to the incarcerated witness in connection with providing such testimony.
    Sec. 7.  NEW SECTION.  804A.3  Pretrial hearing —— incarcerated witness testimony.
   1.  In a criminal prosecution in which the prosecuting attorney intends to introduce the testimony of an incarcerated witness, upon motion of the defendant, the court shall conduct a pretrial hearing to determine whether the incarcerated witness’s testimony exhibits reliability and is admissible based on the following factors:
   a.  The extent to which the incarcerated witness’s testimony is confirmed by other evidence.
   b.  The specificity of the testimony.
   c.  The extent to which the testimony contains details that would be known only by the perpetrator of the offense.
   d.  The extent to which the details of the testimony could be obtained from a source other than the suspect or defendant.
   e.  The circumstances under which the incarcerated witness provided the information to the prosecuting attorney or a law enforcement officer, including whether the incarcerated witness was responding to leading questions.
   2.  If the prosecuting attorney fails to show by a preponderance of the evidence that an incarcerated witness’s testimony is reliable, the court shall exclude the testimony at trial.
    Sec. 8.  NEW SECTION.  804A.4  Tracking the use of incarcerated witness testimony.
   1.  A prosecuting attorney’s office shall maintain a central record containing all of the following:
   a.  Any case in which testimony by an incarcerated witness was introduced or was intended to be introduced by a prosecuting attorney regarding statements made by a suspect or defendant and the substance of such testimony.
   b.  Any benefit that was requested by, provided to, or will be provided in the future to an incarcerated witness in connection with testimony provided by the witness.
   2.  Each prosecuting attorney’s office shall forward the information described in subsection 1 to the division of criminal investigation of the department of public safety. The division shall maintain a statewide database containing the information forwarded pursuant to this section. The database shall be accessible only to prosecuting attorneys and shall otherwise remain confidential and not subject to open records requests.
   3.  If an incarcerated witness receives any benefit in connection with offering or providing testimony against a defendant, the prosecuting attorney shall notify any victim connected to the crime for which the witness was incarcerated.
DIVISION III
POSTCONVICTION ACCESS TO INVESTIGATIVE FILES IN CRIMINAL CASES

    Sec. 9.  NEW SECTION.  701.13  Postconviction file access —— discoverable materials.
   1.  For purposes of this section, “file” means all papers, documents, statements, photographs, or tangible objects in the possession, custody, or control of the state including any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with a particular criminal case.
   2.  Except as provided in subsection 3, a prosecuting attorney shall make available to a defendant who has been convicted of a felony or an aggravated misdemeanor, any file in the possession of a law enforcement agency, county attorney, or the attorney general in this state involved in the investigation of any felony or aggravated misdemeanor committed by the defendant relating to the prosecution of the defendant that the defendant was entitled to at the time of the defendant’s trial.
   3.  In all criminal cases involving a conviction for a felony or an aggravated misdemeanor, all of the following shall apply:
   a.  Except as provided in subsection 4, a defendant’s previous trial or appellate attorney shall securely retain a copy of the defendant’s file for seven years after completion or termination of representation of the defendant or until the completion of the defendant’s term of imprisonment, whichever occurs first. An electronic copy is sufficient only if an entire file can be digitally copied and preserved.
   b.  A defendant’s file may be maintained by electronic, photographic, or other media provided that printed copies may be produced and the records are readily accessible to the defendant’s previous trial or appellate attorney.
   c.  A defendant’s previous trial or appellate attorney shall make available to the defendant or the defendant’s current attorney the complete file relating to the prosecution of the defendant.
   4.  a.  A defendant’s previous trial or appellate attorney may destroy the defendant’s file prior to the end of the term of retention described in subsection 3 if the attorney receives written or electronically recorded consent from the defendant. The written or electronic record of the consent to destruction shall be maintained by the attorney for a period of at least six years after completion or termination of representation or the end of the defendant’s sentence, whichever occurs first.
   b.  Items in the file of monetary value shall not be destroyed.
   c.  A defendant’s previous trial or appellate attorney destroying a file pursuant to this subsection shall securely store items of intrinsic value or deliver such items to the state unclaimed property agency.
   d.  The file shall be destroyed in a manner that preserves client confidentiality.
   5.  A defendant’s previous trial or appellate attorney shall not destroy a file pursuant to subsection 4 if the attorney knows or reasonably should know any of the following:
   a.  A legal malpractice claim is pending related to the representation.
   b.  A criminal or other governmental investigation is pending related to the representation.
   c.  A complaint is pending before the Iowa attorney disciplinary board related to the representation.
   d.  Other litigation is pending related to the representation.
   6.  If a prosecuting attorney has a reasonable belief that allowing inspection of any portion of the defendant’s file by a defendant’s current attorney would place a person in imminent danger, the prosecuting attorney may submit any portion of the file so identified for inspection by the court. If upon examination of the file the court finds that the submitted portion of the file would not assist the defendant in investigating, preparing, or presenting a motion for any appropriate relief, the court may in its discretion allow the prosecutor to withhold that portion of the file.
   7.  A defendant, the defendant’s current attorney, investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant shall not disclose to a third party any file received from the prosecuting attorney under this section that is prohibited from public disclosure unless any of the following apply:
   a.  A court orders the disclosure of the file upon a showing of good cause after notice and a hearing to consider the security and privacy interests of a victim or witness.
   b.  The file has already been publicly disclosed.
   8.  The actual costs involved in the examination or copying of the disclosed file pursuant to this section shall be reimbursed by the defendant.
   9.  This section does not require the retention of any file not otherwise required by law or court order.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to the preservation of biological evidence collected in relation to a criminal investigation, testimony by an incarcerated witness, and postconviction access to investigative files in a criminal case.
   DIVISION I —— PRESERVATION OF BIOLOGICAL EVIDENCE IN CRIMINAL INVESTIGATIONS. The bill provides that except as provided in Code section 709.10 (gathering and preservation of sexual abuse evidence collection kits), all biological evidence collected involving a felony or aggravated misdemeanor in an agency’s possession or control shall be preserved and stored by the agency as follows: for cases resulting in a conviction or a deferred judgment, the biological evidence shall be retained for the latter of 20 years from the date the defendant’s conviction becomes final or the period of time that the defendant or a codefendant remains in custody; and for cases not resulting in a conviction, the biological evidence shall be preserved and stored until the expiration of the statute of limitations for the alleged offense. The agency shall retain biological material contained in or included on the biological evidence in an amount and a manner sufficient to develop a DNA profile from the biological evidence and in a manner reasonably calculated to prevent contamination or degradation of any biological evidence that might be present, subject to a continuous chain of custody, and securely retained with sufficient official documentation to locate the evidence.
   The bill provides that upon written request by a defendant, the agency shall prepare an inventory of biological evidence relevant to the defendant’s case that is in the custody of the agency. If biological evidence was destroyed in accordance with the bill through a court order or other written directive, the agency shall provide the defendant with a copy of the documentation showing adherence with the new Code section, the court order, or the written directive.
   The bill provides that the agency shall not be required to preserve physical evidence on which biological evidence is found that is of such a size, bulk, or physical character as to render retention impracticable. A portion of the physical evidence likely to contain biological evidence shall be removed in a quantity sufficient to permit future DNA testing before returning or disposing of the remainder of the physical evidence. Biological evidence shall not be destroyed when a codefendant, convicted of the same crime, remains in custody, and the agency shall preserve the evidence until all codefendants are released from custody.
   The bill provides that the agency may destroy or dispose of a DNA sample before the period required expires if no other provision of federal or state law requires the agency to preserve the biological evidence and the agency sends a notice of intent to dispose of biological evidence by certified mail, return receipt requested, or by a delivery service that provides proof of delivery to any victim, any individual who remains in custody based on a criminal conviction related to the biological evidence, the private attorney or public defender of record for each individual related to the biological evidence, and, if applicable, the prosecuting agency responsible for the prosecution of each individual relating to the biological evidence and the attorney general. A notified person may file an application for DNA profiling or submit a written request to the agency that the biological evidence be retained.
   The bill provides that an agency that receives a request to produce biological evidence that the agency is unable to produce shall provide an affidavit describing the efforts taken to locate the biological evidence and affirm that the biological evidence could not be located. If the court finds that biological evidence was not preserved as required under the bill, the court may conduct a hearing and impose appropriate sanctions and order appropriate remedies.
   The bill defines “agency”, “biological evidence”, and “custody”.
   DIVISION II —— INCARCERATED WITNESS TESTIMONY. The bill provides that in any criminal prosecution, not less than 90 days prior to a trial, the prosecuting attorney shall disclose its intent to introduce the testimony of an incarcerated witness regarding statements made by a suspect or defendant, while such witness and suspect or defendant were both incarcerated. The prosecuting attorney shall provide to the defense all of the following: the criminal history of the incarcerated witness, including any pending or dismissed criminal charges; the incarcerated witness’s cooperation agreement and any benefit that has been requested by, provided to, or will be provided in the future to the incarcerated witness; any statement allegedly given by the suspect or defendant to the incarcerated witness and any statement given by the incarcerated witness to law enforcement regarding the statements allegedly made by the suspect or defendant; any information regarding the incarcerated witness recanting testimony or statements; and any information concerning other criminal cases in which the testimony of the incarcerated witness was introduced or was intended to be introduced by a prosecuting attorney. The bill provides that the court may permit the prosecuting attorney to comply with the duty to disclose the prosecuting attorney’s intent to introduce the testimony of an incarcerated witness after the 90-day time period if the court finds that the incarcerated witness was not known or the information described could not be discovered or obtained by the prosecuting attorney exercising due diligence within the 90-day time period.
   The bill provides that if the court finds that disclosing the information described in the bill is likely to cause bodily harm to the incarcerated witness, the court may order that such evidence be viewed only by the defense counsel or may issue a protective order. If the testimony of an incarcerated witness is admitted into evidence, the jury shall be instructed that such testimony was provided by an incarcerated witness and informed of any benefit that has been requested by, provided to, or will be provided in the future to the incarcerated witness in connection with providing such testimony.
   The bill provides that in a criminal prosecution in which the prosecuting attorney intends to introduce the testimony of an incarcerated witness, upon motion of the defendant, the court shall conduct a pretrial hearing to determine whether the incarcerated witness’s testimony exhibits reliability and is admissible based on the following factors: the extent to which the incarcerated witness’s testimony is confirmed by other evidence; the specificity of the testimony; the extent to which the testimony contains details that would be known only by the perpetrator of the offense; the extent to which the details of the testimony could be obtained from a source other than the suspect or defendant; and the circumstances under which the incarcerated witness provided the information to the prosecuting attorney or a law enforcement officer. If the prosecuting attorney fails to show by a preponderance of the evidence that an incarcerated witness’s testimony is reliable, the court shall exclude the testimony at trial.
   The bill requires that each prosecuting attorney’s office shall maintain a central record containing any case in which testimony by an incarcerated witness was introduced or was intended to be introduced regarding statements made by a suspect or defendant and the substance of such testimony, and any benefit that was requested by, provided to, or will be provided in the future to an incarcerated witness in connection with testimony provided by the witness. A prosecuting attorney’s office shall forward the information to the division of criminal investigation of the department of public safety. The division shall maintain a statewide database containing the information forwarded. The database shall be accessible only to prosecuting attorneys and shall otherwise remain confidential and not subject to open records requests. If an incarcerated witness receives any benefit in connection with offering or providing testimony against a defendant, the prosecuting attorney shall notify any victim connected to the crime for which the witness was incarcerated.
   The bill defines “benefit” and “incarcerated witness”.
   DIVISION III —— POSTCONVICTION ACCESS TO INVESTIGATIVE FILES IN CRIMINAL CASES. The bill provides that the prosecuting attorney shall make available to a defendant, who has been convicted of a felony or an aggravated misdemeanor, the file in the possession of any law enforcement agency, county attorney, or the attorney general in this state involved in the investigation of the public offenses committed by the defendant or the prosecution of the defendant which the defendant was entitled to at the time of the defendant’s trial. If the prosecuting attorney has a reasonable belief that allowing inspection of any portion of the file by a defendant’s current attorney would place a person in imminent danger, the prosecuting attorney may submit any portion of the file identified for inspection by the court. If upon examination the court finds that the submitted portion of the file would not assist the defendant in investigating, preparing, or presenting a motion for appropriate relief, the court in its discretion may allow the prosecutor to withhold that portion of the file.
   The bill provides that in all criminal matters involving a conviction for a felony or aggravated misdemeanor, a defendant’s previous trial or appellate attorney shall securely retain a copy of the defendant’s file for seven years after completion or termination of representation of the defendant or until the completion of the defendant’s term of imprisonment, whichever occurs first. An electronic copy is sufficient only if an entire file can be digitally copied and preserved. A defendant’s file may be maintained by electronic, photographic, or other media provided that printed copies may be produced and the records are readily accessible to the defendant’s previous trial or appellate attorney. A defendant’s previous trial or appellate attorney shall make available to the defendant or the defendant’s current attorney the complete file relating to the prosecution of the defendant.
   The bill provides that the defendant’s previous trial or appellate attorney may destroy the defendant’s file prior to the end of the required term of retention if the attorney receives written or electronically recorded consent from the defendant. The written or electronic record of the consent to destruction shall be maintained by the attorney for a period of at least six years after completion or termination of representation or the end of the defendant’s sentence, whichever occurs first. Items in the file of monetary value shall not be destroyed. A defendant’s previous trial or appellate attorney destroying a file shall securely store items of intrinsic value or deliver such items to the state unclaimed property agency. The file shall be destroyed in a manner that preserves client confidentiality.
   The bill provides that a defendant’s previous trial or appellate attorney shall not destroy a file prior to the end of the required term of retention if the attorney knows or reasonably should know that a legal malpractice claim is pending related to the representation; a criminal or other governmental investigation is pending related to the representation; a complaint is pending before the Iowa attorney disciplinary board related to the representation; or other litigation is pending related to the representation. If a prosecuting attorney has a reasonable belief that allowing inspection of any portion of the defendant’s file by a defendant’s current attorney would place a person in imminent danger, the prosecuting attorney may submit any portion for inspection by the court. If the court finds that the submitted portion of the file would not assist the defendant in investigating, preparing, or presenting a motion for any appropriate relief, the court may in its discretion allow the prosecuting attorney to withhold that portion of the file.
   The bill provides that the defendant, the defendant’s attorney, investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant shall not disclose to a third party any file received from the prosecuting attorney that is prohibited from public disclosure unless a court orders the disclosure of the file upon a showing of good cause after notice and a hearing to consider the security and privacy interests of a victim or witness, or the file has already been publicly disclosed.
   The actual costs involved in the examination or copying of any file disclosed shall be reimbursed by the defendant. The bill does not require the retention of any file not otherwise required by law or court order.
   The bill defines “file” as papers, documents, statements, photographs, or tangible objects in the possession, custody, or control of the state including any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with a particular case.