S.F. _____ H.F. _____ 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 13 clear and convincing 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 22 the guilt of the defendant, and not information that is merely 23 impeaching or is substantially cumulative in nature. 24 (2) “Private information” means information for which 25 a person has a reasonable expectation of privacy including 26 but not limited to information the state would need a search 27 warrant to obtain, nonpublic electronic communications, and 28 information that would reveal personal information immaterial 29 to the prosecution. 30 2. Notwithstanding any rule of criminal procedure 31 concerning the issuance of a subpoena, this section is the 32 exclusive mechanism for a criminal defendant or counsel acting 33 on the defendant’s behalf to issue a subpoena for documents or 34 other evidence. 35 -1- LSB 5336XD (3) 90 as/js 1/ 3

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

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