H.F. 2639 Section 1. NEW SECTION . 701.14 Discovery depositions 1 involving minor victims —— procedures and protections. 2 1. As used in this section: 3 a. “Deponent abuse” means conduct by an attorney during a 4 deposition that: 5 (1) Employs questions or comments designed primarily to 6 humiliate, intimidate, or emotionally distress the minor 7 deponent rather than to elicit relevant information. 8 (2) Requires the minor deponent to repeatedly describe the 9 same traumatic events when such repetition serves no legitimate 10 discovery purpose. 11 (3) Uses a tone, volume, or manner of questioning that is 12 threatening, mocking, or belittling toward the minor deponent. 13 (4) Makes statements that blame or shame the minor deponent 14 for the alleged criminal conduct. 15 (5) Asks questions about the minor deponent’s sexual 16 history or reputation that are not directly relevant to the 17 charged offense and admissible under applicable rules of 18 evidence. 19 (6) Continues questioning after the minor deponent has 20 exhibited significant emotional distress without allowing a 21 reasonable recess. 22 (7) Engages in any other conduct that a reasonable person 23 would recognize as designed to cause unnecessary psychological 24 harm to the minor deponent. 25 b. “Forensic interview” means a video and audio recorded 26 statement obtained by a forensic interviewer employed by an 27 accredited child advocacy center or child protection center, 28 conducted substantially in accordance with a nationally 29 recognized protocol for interviewing children. 30 c. “Minor” means a person under eighteen years of age. 31 d. “Trauma-informed practices” means approaches to 32 questioning that minimize retraumatization while still 33 permitting thorough inquiry, including but not limited to 34 developmentally appropriate language, nonleading questions when 35 -1- LSB 6055HV (3) 91 as/js 1/ 11

H.F. 2639 possible, and awareness of trauma responses. 1 2. Notwithstanding any other provision of law, there is 2 a rebuttable presumption in favor of permitting a discovery 3 deposition of a minor victim in a criminal action when defense 4 counsel demonstrates to the court, by a preponderance of the 5 evidence, that such deposition is critical to the defendant’s 6 ability to receive an adequate and fair trial. 7 3. Defense counsel seeking to depose a minor victim 8 shall file a written application with the court, which may 9 be submitted under seal and heard in camera at the request 10 of either party. The application shall set forth with 11 particularity: 12 a. The specific factual matters or areas of inquiry that 13 defense counsel seeks to explore through the deposition. 14 b. The reasons why the requested information is critical to 15 the defense including but not limited to: 16 (1) Facts necessary to complete the investigation that are 17 known only to the proposed deponent. 18 (2) Ambiguities, inconsistencies, or gaps in the minor 19 victim’s prior statements that require clarification. 20 (3) Information needed to evaluate or challenge the 21 credibility of the allegations. 22 (4) Facts relevant to an affirmative defense or to negating 23 an element of the charged offense. 24 (5) Information necessary to identify or locate other 25 witnesses or evidence. 26 (6) Matters that could not reasonably be explored through 27 alternative discovery methods. 28 c. A description of efforts made to obtain the information 29 through other discovery methods, including but not limited to 30 review of the forensic interview, written interrogatories, 31 requests for production, or depositions of other witnesses. 32 d. An estimate of the time reasonably necessary to complete 33 the deposition. 34 e. A proposed plan for minimizing trauma to the minor 35 -2- LSB 6055HV (3) 91 as/js 2/ 11

H.F. 2639 deponent, including proposed location, timing, and any 1 accommodations. 2 4. In ruling on an application under subsection 3, the court 3 shall weigh: 4 a. The importance of the requested information to the 5 defendant’s ability to present a meaningful defense. 6 b. Whether the information sought is available through less 7 intrusive means, including review of the forensic interview or 8 other discovery. 9 c. The age and developmental level of the minor victim. 10 d. The nature and severity of the alleged offense. 11 e. The potential psychological impact on the minor victim. 12 f. The length of time since the alleged offense occurred. 13 g. Whether the minor victim has received therapeutic 14 treatment that could be disrupted by the deposition. 15 h. The existence and quality of any forensic interview or 16 other recorded statement. 17 i. Any other factors the court deems relevant to balancing 18 the defendant’s constitutional rights against the welfare of 19 the minor victim. 20 5. If the court grants the application, the court shall 21 issue an order specifying all of the following: 22 a. The specific topics or areas of inquiry permitted. 23 b. Topics or questions that are prohibited. 24 c. The maximum duration of the deposition. 25 d. Any other limitations the court deems appropriate to 26 protect the minor victim while permitting meaningful discovery. 27 6. All depositions of minor victims conducted pursuant 28 to this section shall be subject to the following mandatory 29 protections: 30 a. (1) The deposition shall be conducted at a location 31 chosen by the minor deponent or counsel for the minor deponent, 32 which may include: 33 (a) A child advocacy center or child protection center. 34 (b) The office of the prosecuting attorney. 35 -3- LSB 6055HV (3) 91 as/js 3/ 11

H.F. 2639 (c) A neutral location approved by the court. 1 (d) Any other location where the minor deponent feels safe 2 and comfortable. 3 (2) The deposition shall not be conducted in a jail, prison, 4 law enforcement facility, or the office of defense counsel 5 unless the minor deponent affirmatively consents. 6 b. The deposition shall be scheduled at a time that 7 minimizes disruption to the minor deponent’s school attendance, 8 therapeutic appointments, and regular activities. 9 c. The deposition shall be recorded by video and audio. The 10 recording shall be maintained under seal by the court and shall 11 not be disclosed except as provided by court order. 12 d. (1) The minor deponent shall be entitled to have present 13 during the deposition any of the following: 14 (a) A parent, guardian, or other supportive adult of the 15 minor’s choosing, provided such person is not a defendant or 16 potential witness in the case. 17 (b) A victim advocate or support animal, at the minor 18 deponent’s request. 19 (c) A therapist or mental health professional familiar with 20 the minor deponent, at the minor deponent’s request. 21 (2) Support persons in attendance pursuant to subparagraph 22 (1) shall not answer questions on behalf of the minor deponent, 23 coach the minor deponent, or otherwise interfere with the 24 deposition, but may provide comfort through physical proximity 25 and may request recesses when the minor deponent exhibits 26 significant distress. 27 e. The minor deponent or any support person may request 28 breaks at any time. Breaks shall be granted liberally. In no 29 event shall the minor deponent be required to participate in 30 questioning for more than one hour without a break of at least 31 fifteen minutes. 32 f. The minor deponent shall be entitled to have counsel 33 present during the deposition to assert objections and protect 34 the minor deponent’s interests. If the minor deponent is not 35 -4- LSB 6055HV (3) 91 as/js 4/ 11

H.F. 2639 otherwise represented, the court shall appoint counsel or a 1 guardian ad litem to represent the minor deponent’s interests 2 at the deposition. 3 g. (1) Only one attorney for each party shall be permitted 4 to question the minor deponent. 5 (2) Questions shall be phrased in language appropriate to 6 the minor deponent’s age and developmental level. 7 (3) Compound, confusing, or misleading questions shall not 8 be permitted. 9 (4) The attorney conducting the deposition shall use 10 trauma-informed practices. 11 h. Upon request of the minor deponent or counsel for the 12 minor deponent: 13 (1) The minor deponent may testify from behind a screen or 14 one-way mirror that shields the minor deponent from direct view 15 of the defendant, while permitting the defendant to observe the 16 minor deponent. 17 (2) The deposition may be conducted via contemporaneous 18 two-way video technology that permits the minor deponent to be 19 in a separate room from the defendant and defense counsel. 20 (3) The room shall be arranged to minimize intimidation, 21 which may include seating the minor deponent at the same level 22 as counsel, removing the defendant from the minor deponent’s 23 direct line of sight, or other accommodations. 24 i. The defendant may be excluded from the room where 25 the minor deponent is physically located but shall have the 26 right to observe the deposition via contemporaneous video 27 transmission and to communicate with defense counsel through 28 electronic means. 29 7. Prior to conducting a deposition of a minor victim under 30 this section, the attorney conducting the deposition shall file 31 a certification with the court attesting that: 32 a. The attorney has reviewed the court’s order regarding 33 permitted and prohibited areas of inquiry. 34 b. The attorney has reviewed materials on trauma-informed 35 -5- LSB 6055HV (3) 91 as/js 5/ 11

H.F. 2639 questioning of minors. 1 c. The attorney understands and will comply with the 2 mandatory protections set forth in this section. 3 d. The attorney understands the sanctions that may be 4 imposed for deponent abuse. 5 8. a. Counsel for the minor deponent or the prosecuting 6 attorney may object to any question that exceeds the scope 7 permitted by the court’s order or that constitutes deponent 8 abuse. Upon such objection, the minor deponent shall not be 9 required to answer until the objection is resolved. 10 b. If a pattern of improper questioning emerges, counsel for 11 the minor deponent or the prosecuting attorney may suspend the 12 deposition and seek immediate telephonic review by the court. 13 c. The court may, upon review, terminate the deposition, 14 limit its scope further, or impose immediate sanctions. 15 9. a. Upon motion of the prosecuting attorney, counsel for 16 the minor deponent, or upon the court’s own motion, the court 17 shall conduct a hearing to determine whether deponent abuse 18 occurred during a deposition conducted under this section. 19 b. If the court finds by a preponderance of the evidence 20 that deponent abuse occurred, the court shall impose one or 21 more of the following sanctions: 22 (1) A fine against the offending attorney of not less than 23 one thousand dollars and not more than twenty-five thousand 24 dollars per instance of abuse. 25 (2) An order requiring the offending attorney or the 26 attorney’s client to pay all costs associated with the 27 deposition, including but not limited to court reporter fees, 28 videographer fees, fees for counsel for the minor deponent, 29 and fees for any mental health professionals required to be 30 present. 31 (3) An order requiring the offending attorney or the 32 attorney’s client to pay for any additional therapeutic 33 treatment required by the minor deponent as a result of the 34 deponent abuse. 35 -6- LSB 6055HV (3) 91 as/js 6/ 11

H.F. 2639 (4) An order excluding from evidence at trial any testimony 1 obtained through abusive questioning. 2 (5) An order permitting the prosecuting attorney to 3 inform the jury that testimony was excluded due to defense 4 counsel’s abusive conduct, or permitting an adverse inference 5 instruction. 6 (6) Immediate termination of the deposition with no right 7 to reconvene. 8 (7) An order prohibiting the offending attorney from 9 conducting any further depositions of minors in any case for a 10 period of not less than one year. 11 (8) Referral of the offending attorney to the appropriate 12 attorney disciplinary authority for professional misconduct. 13 (9) A finding of contempt of court, with appropriate civil 14 or criminal penalties. 15 (10) In cases of egregious or repeated abuse, preclusion 16 of defenses, or other case-dispositive sanctions as the court 17 deems just. 18 c. The court shall state on the record or in a written 19 order the specific conduct constituting deponent abuse and the 20 reasons for the sanctions imposed. 21 d. Sanctions under this subsection are in addition to 22 any other remedies available under the Iowa rules of civil 23 procedure, the Iowa rules of criminal procedure, or other 24 applicable law. 25 e. An attorney sanctioned under this subsection may appeal 26 the sanction, but such appeal shall not stay the effect of the 27 sanction unless the court so orders. 28 10. a. A deposition taken under this section may be used 29 at trial in accordance with the Iowa rules of evidence and the 30 Iowa rules of criminal procedure. 31 b. Nothing in this section shall be construed to limit the 32 minor victim’s right to testify at trial or the defendant’s 33 right to confront and cross-examine the minor victim at trial. 34 11. a. All applications, orders, and proceedings under this 35 -7- LSB 6055HV (3) 91 as/js 7/ 11

H.F. 2639 section may be conducted under seal and in camera upon request 1 of any party. 2 b. The video recording of any deposition conducted under 3 this section shall be maintained under seal and shall not be 4 released, copied, or disseminated except by court order for 5 purposes directly related to the criminal proceeding. 6 c. Violation of the confidentiality provisions of this 7 subsection shall be punishable as contempt of court and may 8 result in sanctions as provided in subsection 9. 9 12. a. This section shall be construed to balance the 10 defendant’s constitutional rights to due process and effective 11 assistance of counsel with the state’s compelling interest in 12 protecting minor victims from unnecessary trauma and promoting 13 the accurate and reliable testimony of child witnesses. 14 b. Nothing in this section shall be construed to limit any 15 rights of the defendant under the Constitution of the United 16 States or the Constitution of the State of Iowa. 17 c. If any provision of this section or its application to 18 any person or circumstance is held invalid, the invalidity does 19 not affect other provisions or applications of this section 20 that can be given effect without the invalid provision or 21 application. 22 EXPLANATION 23 The inclusion of this explanation does not constitute agreement with 24 the explanation’s substance by the members of the general assembly. 25 This bill relates to limitations on discovery depositions 26 involving minor victims. 27 The bill provides that there shall be a rebuttable 28 presumption in favor of permitting a discovery deposition 29 of a minor victim in a criminal action when defense counsel 30 demonstrates to the court, by a preponderance of the evidence, 31 that such deposition is critical to the defendant’s ability to 32 receive an adequate and fair trial. Defense counsel seeking 33 to depose a minor victim must file a written application 34 with the court, which sets forth with particularity: the 35 -8- LSB 6055HV (3) 91 as/js 8/ 11

H.F. 2639 specific factual matters or areas of inquiry that defense 1 counsel seeks to explore through the deposition; the reasons 2 why the requested information is critical to the defense; a 3 description of efforts made to obtain the information through 4 other discovery methods, including but not limited to review of 5 the forensic interview, written interrogatories, requests for 6 production, or depositions of other witnesses; an estimate of 7 the time reasonably necessary to complete the deposition; and 8 a proposed plan for minimizing trauma to the minor deponent, 9 including proposed location, timing, and any accommodations. 10 The bill provides that in ruling on an application the court 11 shall weigh: the importance of the requested information 12 to the defendant’s ability to present a meaningful defense; 13 whether the information sought is available through less 14 intrusive means, including review of the forensic interview 15 or other discovery; the age and developmental level of the 16 minor victim; the nature and severity of the alleged offense; 17 the potential psychological impact on the minor victim; the 18 length of time since the alleged offense occurred; whether the 19 minor victim has received therapeutic treatment that could be 20 disrupted by the deposition; the existence and quality of any 21 forensic interview or other recorded statement; and any other 22 factors the court deems relevant to balancing the defendant’s 23 constitutional rights against the welfare of the minor victim. 24 If the court grants the application, the court shall issue an 25 order specifying: the specific topics or areas of inquiry 26 permitted; topics or questions that are prohibited; the maximum 27 duration of the deposition; and any other limitations the court 28 deems appropriate to protect the minor victim while permitting 29 meaningful discovery. 30 The bill specifies that all depositions of minor victims 31 conducted pursuant to this section shall be subject to the 32 following mandatory protections: the deposition shall be 33 conducted at a location chosen by the minor deponent or 34 counsel for the minor deponent; the deposition shall not 35 -9- LSB 6055HV (3) 91 as/js 9/ 11

H.F. 2639 be conducted in a jail, prison, law enforcement facility, 1 or the office of defense counsel unless the minor deponent 2 affirmatively consents; the deposition shall be scheduled at a 3 time that minimizes disruption to the minor deponent’s school 4 attendance, therapeutic appointments, and regular activities; 5 and the deposition shall be recorded by video and audio. The 6 minor deponent shall be entitled to have present during the 7 deposition: a parent, guardian, or other supportive adult of 8 the minor’s choosing, provided such person is not a defendant 9 or potential witness in the case; a victim advocate or support 10 animal, at the minor deponent’s request; and a therapist or 11 mental health professional familiar with the minor deponent, at 12 the minor deponent’s request. The minor deponent may testify 13 from behind a screen or one-way mirror that shields the minor 14 deponent from direct view of the defendant, while permitting 15 the defendant to observe the minor deponent. The deposition 16 may be conducted via contemporaneous two-way video technology 17 that permits the minor deponent to be in a separate room from 18 the defendant and defense counsel. Counsel for the minor 19 deponent or the prosecuting attorney may object to any question 20 that exceeds the scope permitted by the court’s order or that 21 constitutes deponent abuse. Upon such objection, the minor 22 deponent shall not be required to answer until the objection 23 is resolved. If a pattern of improper questioning emerges, 24 counsel for the minor deponent or the prosecuting attorney 25 may suspend the deposition and seek immediate telephonic 26 review by the court. The court may, upon review, terminate 27 the deposition, limit its scope further, or impose immediate 28 sanctions. 29 The bill provides that upon motion of the prosecuting 30 attorney or counsel for the minor deponent, or upon the court’s 31 own motion, the court shall conduct a hearing to determine 32 whether deponent abuse occurred during a deposition conducted 33 under this section. If the court finds by a preponderance 34 of the evidence that deponent abuse occurred, the court 35 -10- LSB 6055HV (3) 91 as/js 10/ 11

H.F. 2639 shall impose one or more of the following sanctions: a fine 1 against the offending attorney of not less than $1,000 and not 2 more than $25,000 per instance of abuse; an order requiring 3 the offending attorney or the attorney’s client to pay all 4 costs associated with the deposition; an order requiring the 5 offending attorney or the attorney’s client to pay for any 6 additional therapeutic treatment required by the minor deponent 7 as a result of the deponent abuse; an order excluding from 8 evidence at trial any testimony obtained through abusive 9 questioning; an order permitting the prosecuting attorney to 10 inform the jury that testimony was excluded due to defense 11 counsel’s abusive conduct, or permitting an adverse inference 12 instruction; immediate termination of the deposition with no 13 right to reconvene; an order prohibiting the offending attorney 14 from conducting any further depositions of minors in any 15 case for a period of not less than one year; referral of the 16 offending attorney to the appropriate attorney disciplinary 17 authority for professional misconduct; a finding of contempt 18 of court, with appropriate civil or criminal penalties; or in 19 cases of egregious or repeated abuse, preclusion of defenses, 20 or other case-dispositive sanctions as the court deems just. 21 The bill defines “deponent abuse”, “forensic interview”, 22 “minor”, and “trauma-informed practices”. 23 -11- LSB 6055HV (3) 91 as/js 11/ 11