S.F. 2349 Section 1. Section 815.9, subsection 1, unnumbered 1 paragraph 1, Code 2024, is amended to read as follows: 2 For purposes of this chapter , chapters 13B , 229A , 232 , 665 , 3 812 , 814 , and 822 , and section sections 811.1A and 821A.1 , and 4 the rules of criminal procedure, a person is indigent if the 5 person is entitled to an attorney appointed by the court as 6 follows: 7 Sec. 2. NEW SECTION . 821A.1 Defense subpoenas in criminal 8 actions. 9 1. a. A criminal defendant or counsel acting on the 10 defendant’s behalf shall not issue any subpoena for documents 11 or other evidence except upon application to the court. An 12 application shall not be granted unless a defendant proves by a 13 preponderance of the evidence all of the following: 14 (1) There is a compelling need for the evidence sought and 15 that such evidence is material, necessary, exculpatory, and 16 admissible at trial. 17 (2) The evidence sought does not include the private 18 information of a crime victim or any other person except for 19 the defendant’s own private information. 20 b. For the purposes of this subsection: 21 (1) “Exculpatory” means information that tends to negate the 22 guilt of the defendant and not information that is unrelated to 23 the case and is merely impeaching or substantially cumulative 24 in nature. 25 (2) “Private information” means information for which 26 a person has a reasonable expectation of privacy including 27 but not limited to information the state would need a search 28 warrant to obtain, nonpublic electronic communications, and 29 information that would reveal personal information immaterial 30 to the prosecution. 31 2. Notwithstanding any rule of criminal procedure 32 concerning the issuance of a subpoena, this section is the 33 exclusive mechanism for a criminal defendant or counsel acting 34 on the defendant’s behalf to issue a subpoena for documents or 35 -1- LSB 5336SV (2) 90 as/js 1/ 3

S.F. 2349 other evidence. 1 3. An application for a defense subpoena shall not be filed 2 or reviewed ex parte. 3 4. The prosecuting attorney shall not be required to execute 4 or effectuate any order or subpoena issued pursuant to this 5 section. 6 5. A crime victim or other party who is the subject of 7 a subpoena shall not be required by the court to execute a 8 waiver. 9 6. Upon application by a crime victim or the prosecuting 10 attorney, the court shall appoint an attorney to represent a 11 person or entity served with a defense subpoena if the person 12 or entity is determined to be indigent pursuant to section 13 815.9. Counsel appointed pursuant to this subsection shall be 14 paid from the indigent defense fund established pursuant to 15 section 815.11. 16 7. Documents or other evidence obtained through a defense 17 subpoena must be provided to the prosecuting attorney within 18 five business days after the receipt of the documents or other 19 evidence. 20 8. Documents or other evidence obtained through a defense 21 subpoena that does not comply with this section shall not be 22 admissible in any criminal action if offered by the defendant. 23 9. The court may sanction an attorney for knowingly issuing 24 a defense subpoena in violation of this section. 25 10. An applicant for postconviction relief shall not be 26 entitled to relief on a claim of ineffective assistance of 27 counsel as a result of evidence obtained through a defense 28 subpoena. 29 EXPLANATION 30 The inclusion of this explanation does not constitute agreement with 31 the explanation’s substance by the members of the general assembly. 32 This bill relates to defense subpoenas in criminal cases. 33 The bill provides that a criminal defendant or counsel 34 acting on the defendant’s behalf shall not issue any subpoena 35 -2- LSB 5336SV (2) 90 as/js 2/ 3

S.F. 2349 for documents or other evidence except upon application to the 1 court. An application shall not be granted unless a defendant 2 proves by a preponderance of the evidence there is a compelling 3 need for the evidence sought and that such evidence is 4 material, necessary, exculpatory, and admissible at trial; and 5 the evidence sought does not include the private information of 6 a crime victim or any other person except for the defendant’s 7 own private information. 8 Notwithstanding any rule of criminal procedure concerning 9 the issuance of a subpoena, the bill provides that the 10 procedure set forth in the bill is the exclusive mechanism 11 for a criminal defendant or counsel acting on behalf of the 12 defendant to issue a subpoena for documents or other evidence. 13 Documents or other evidence obtained by a subpoena that does 14 not comply with the requirements of the bill shall not be 15 admissible in any criminal action if offered by the defendant, 16 and an attorney who knowingly issues a defense subpoena that 17 does not comply with the requirements of the bill may be 18 sanctioned by the court. An application for a defense subpoena 19 shall not be made or reviewed ex parte. Any documents or 20 evidence obtained by a defense subpoena must be provided to the 21 prosecuting attorney within five business days of obtaining the 22 documents or evidence. 23 The bill provides that upon application by a crime victim or 24 the prosecuting attorney, the court shall appoint an attorney 25 to represent a person or entity served with a defense subpoena, 26 if the person or entity is indigent. 27 The bill provides that an applicant for postconviction 28 relief shall not be entitled to relief on a claim of 29 ineffective assistance of counsel as a result of evidence 30 obtained through a defense subpoena. 31 -3- LSB 5336SV (2) 90 as/js 3/ 3