HF 2639 (LSB 6055HV (3) 91)

HOUSE FILE 2639

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO HF 2135)

A BILL FOR

An Act relating to limitations on discovery depositions involving minor victims.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  701.14  Discovery depositions involving minor victims —— procedures and protections.
   1.  As used in this section:
   a.  “Deponent abuse” means conduct by an attorney during a deposition that:
   (1)  Employs questions or comments designed primarily to humiliate, intimidate, or emotionally distress the minor deponent rather than to elicit relevant information.
   (2)  Requires the minor deponent to repeatedly describe the same traumatic events when such repetition serves no legitimate discovery purpose.
   (3)  Uses a tone, volume, or manner of questioning that is threatening, mocking, or belittling toward the minor deponent.
   (4)  Makes statements that blame or shame the minor deponent for the alleged criminal conduct.
   (5)  Asks questions about the minor deponent’s sexual history or reputation that are not directly relevant to the charged offense and admissible under applicable rules of evidence.
   (6)  Continues questioning after the minor deponent has exhibited significant emotional distress without allowing a reasonable recess.
   (7)  Engages in any other conduct that a reasonable person would recognize as designed to cause unnecessary psychological harm to the minor deponent.
   b.  “Forensic interview” means a video and audio recorded statement obtained by a forensic interviewer employed by an accredited child advocacy center or child protection center, conducted substantially in accordance with a nationally recognized protocol for interviewing children.
   c.  “Minor” means a person under eighteen years of age.
   d.  “Trauma-informed practices” means approaches to questioning that minimize retraumatization while still permitting thorough inquiry, including but not limited to developmentally appropriate language, nonleading questions when possible, and awareness of trauma responses.
   2.  Notwithstanding any other provision of law, there is a rebuttable presumption in favor of permitting a discovery deposition of a minor victim in a criminal action when defense counsel demonstrates to the court, by a preponderance of the evidence, that such deposition is critical to the defendant’s ability to receive an adequate and fair trial.
   3.  Defense counsel seeking to depose a minor victim shall file a written application with the court, which may be submitted under seal and heard in camera at the request of either party. The application shall set forth with particularity:
   a.  The specific factual matters or areas of inquiry that defense counsel seeks to explore through the deposition.
   b.  The reasons why the requested information is critical to the defense including but not limited to:
   (1)  Facts necessary to complete the investigation that are known only to the proposed deponent.
   (2)  Ambiguities, inconsistencies, or gaps in the minor victim’s prior statements that require clarification.
   (3)  Information needed to evaluate or challenge the credibility of the allegations.
   (4)  Facts relevant to an affirmative defense or to negating an element of the charged offense.
   (5)  Information necessary to identify or locate other witnesses or evidence.
   (6)  Matters that could not reasonably be explored through alternative discovery methods.
   c.  A description of efforts made to obtain the information through other discovery methods, including but not limited to review of the forensic interview, written interrogatories, requests for production, or depositions of other witnesses.
   d.  An estimate of the time reasonably necessary to complete the deposition.
   e.  A proposed plan for minimizing trauma to the minor deponent, including proposed location, timing, and any accommodations.
   4.  In ruling on an application under subsection 3, the court shall weigh:
   a.  The importance of the requested information to the defendant’s ability to present a meaningful defense.
   b.  Whether the information sought is available through less intrusive means, including review of the forensic interview or other discovery.
   c.  The age and developmental level of the minor victim.
   d.  The nature and severity of the alleged offense.
   e.  The potential psychological impact on the minor victim.
   f.  The length of time since the alleged offense occurred.
   g.  Whether the minor victim has received therapeutic treatment that could be disrupted by the deposition.
   h.  The existence and quality of any forensic interview or other recorded statement.
   i.  Any other factors the court deems relevant to balancing the defendant’s constitutional rights against the welfare of the minor victim.
   5.  If the court grants the application, the court shall issue an order specifying all of the following:
   a.  The specific topics or areas of inquiry permitted.
   b.  Topics or questions that are prohibited.
   c.  The maximum duration of the deposition.
   d.  Any other limitations the court deems appropriate to protect the minor victim while permitting meaningful discovery.
   6.  All depositions of minor victims conducted pursuant to this section shall be subject to the following mandatory protections:
   a.  (1)  The deposition shall be conducted at a location chosen by the minor deponent or counsel for the minor deponent, which may include:
   (a)  A child advocacy center or child protection center.
   (b)  The office of the prosecuting attorney.
   (c)  A neutral location approved by the court.
   (d)  Any other location where the minor deponent feels safe and comfortable.
   (2)  The deposition shall not be conducted in a jail, prison, law enforcement facility, or the office of defense counsel unless the minor deponent affirmatively consents.
   b.  The deposition shall be scheduled at a time that minimizes disruption to the minor deponent’s school attendance, therapeutic appointments, and regular activities.
   c.  The deposition shall be recorded by video and audio. The recording shall be maintained under seal by the court and shall not be disclosed except as provided by court order.
   d.  (1)  The minor deponent shall be entitled to have present during the deposition any of the following:
   (a)  A parent, guardian, or other supportive adult of the minor’s choosing, provided such person is not a defendant or potential witness in the case.
   (b)  A victim advocate or support animal, at the minor deponent’s request.
   (c)  A therapist or mental health professional familiar with the minor deponent, at the minor deponent’s request.
   (2)  Support persons in attendance pursuant to subparagraph (1) shall not answer questions on behalf of the minor deponent, coach the minor deponent, or otherwise interfere with the deposition, but may provide comfort through physical proximity and may request recesses when the minor deponent exhibits significant distress.
   e.  The minor deponent or any support person may request breaks at any time. Breaks shall be granted liberally. In no event shall the minor deponent be required to participate in questioning for more than one hour without a break of at least fifteen minutes.
   f.  The minor deponent shall be entitled to have counsel present during the deposition to assert objections and protect the minor deponent’s interests. If the minor deponent is not otherwise represented, the court shall appoint counsel or a guardian ad litem to represent the minor deponent’s interests at the deposition.
   g.  (1)  Only one attorney for each party shall be permitted to question the minor deponent.
   (2)  Questions shall be phrased in language appropriate to the minor deponent’s age and developmental level.
   (3)  Compound, confusing, or misleading questions shall not be permitted.
   (4)  The attorney conducting the deposition shall use trauma-informed practices.
   h.  Upon request of the minor deponent or counsel for the minor deponent:
   (1)  The minor deponent may testify from behind a screen or one-way mirror that shields the minor deponent from direct view of the defendant, while permitting the defendant to observe the minor deponent.
   (2)  The deposition may be conducted via contemporaneous two-way video technology that permits the minor deponent to be in a separate room from the defendant and defense counsel.
   (3)  The room shall be arranged to minimize intimidation, which may include seating the minor deponent at the same level as counsel, removing the defendant from the minor deponent’s direct line of sight, or other accommodations.
   i.  The defendant may be excluded from the room where the minor deponent is physically located but shall have the right to observe the deposition via contemporaneous video transmission and to communicate with defense counsel through electronic means.
   7.  Prior to conducting a deposition of a minor victim under this section, the attorney conducting the deposition shall file a certification with the court attesting that:
   a.  The attorney has reviewed the court’s order regarding permitted and prohibited areas of inquiry.
   b.  The attorney has reviewed materials on trauma-informed questioning of minors.
   c.  The attorney understands and will comply with the mandatory protections set forth in this section.
   d.  The attorney understands the sanctions that may be imposed for deponent abuse.
   8.  a.  Counsel for the minor deponent or the prosecuting attorney may object to any question that exceeds the scope permitted by the court’s order or that constitutes deponent abuse. Upon such objection, the minor deponent shall not be required to answer until the objection is resolved.
   b.  If a pattern of improper questioning emerges, counsel for the minor deponent or the prosecuting attorney may suspend the deposition and seek immediate telephonic review by the court.
   c.  The court may, upon review, terminate the deposition, limit its scope further, or impose immediate sanctions.
   9.  a.  Upon motion of the prosecuting attorney, counsel for the minor deponent, or upon the court’s own motion, the court shall conduct a hearing to determine whether deponent abuse occurred during a deposition conducted under this section.
   b.  If the court finds by a preponderance of the evidence that deponent abuse occurred, the court shall impose one or more of the following sanctions:
   (1)  A fine against the offending attorney of not less than one thousand dollars and not more than twenty-five thousand dollars per instance of abuse.
   (2)  An order requiring the offending attorney or the attorney’s client to pay all costs associated with the deposition, including but not limited to court reporter fees, videographer fees, fees for counsel for the minor deponent, and fees for any mental health professionals required to be present.
   (3)  An order requiring the offending attorney or the attorney’s client to pay for any additional therapeutic treatment required by the minor deponent as a result of the deponent abuse.
   (4)  An order excluding from evidence at trial any testimony obtained through abusive questioning.
   (5)  An order permitting the prosecuting attorney to inform the jury that testimony was excluded due to defense counsel’s abusive conduct, or permitting an adverse inference instruction.
   (6)  Immediate termination of the deposition with no right to reconvene.
   (7)  An order prohibiting the offending attorney from conducting any further depositions of minors in any case for a period of not less than one year.
   (8)  Referral of the offending attorney to the appropriate attorney disciplinary authority for professional misconduct.
   (9)  A finding of contempt of court, with appropriate civil or criminal penalties.
   (10)  In cases of egregious or repeated abuse, preclusion of defenses, or other case-dispositive sanctions as the court deems just.
   c.  The court shall state on the record or in a written order the specific conduct constituting deponent abuse and the reasons for the sanctions imposed.
   d.  Sanctions under this subsection are in addition to any other remedies available under the Iowa rules of civil procedure, the Iowa rules of criminal procedure, or other applicable law.
   e.  An attorney sanctioned under this subsection may appeal the sanction, but such appeal shall not stay the effect of the sanction unless the court so orders.
   10.  a.  A deposition taken under this section may be used at trial in accordance with the Iowa rules of evidence and the Iowa rules of criminal procedure.
   b.  Nothing in this section shall be construed to limit the minor victim’s right to testify at trial or the defendant’s right to confront and cross-examine the minor victim at trial.
   11.  a.  All applications, orders, and proceedings under this section may be conducted under seal and in camera upon request of any party.
   b.  The video recording of any deposition conducted under this section shall be maintained under seal and shall not be released, copied, or disseminated except by court order for purposes directly related to the criminal proceeding.
   c.  Violation of the confidentiality provisions of this subsection shall be punishable as contempt of court and may result in sanctions as provided in subsection 9.
   12.  a.  This section shall be construed to balance the defendant’s constitutional rights to due process and effective assistance of counsel with the state’s compelling interest in protecting minor victims from unnecessary trauma and promoting the accurate and reliable testimony of child witnesses.
   b.  Nothing in this section shall be construed to limit any rights of the defendant under the Constitution of the United States or the Constitution of the State of Iowa.
   c.  If any provision of this section or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this section that can be given effect without the invalid provision or application.
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 limitations on discovery depositions involving minor victims.
   The bill provides that there shall be a rebuttable presumption in favor of permitting a discovery deposition of a minor victim in a criminal action when defense counsel demonstrates to the court, by a preponderance of the evidence, that such deposition is critical to the defendant’s ability to receive an adequate and fair trial. Defense counsel seeking to depose a minor victim must file a written application with the court, which sets forth with particularity: the specific factual matters or areas of inquiry that defense counsel seeks to explore through the deposition; the reasons why the requested information is critical to the defense; a description of efforts made to obtain the information through other discovery methods, including but not limited to review of the forensic interview, written interrogatories, requests for production, or depositions of other witnesses; an estimate of the time reasonably necessary to complete the deposition; and a proposed plan for minimizing trauma to the minor deponent, including proposed location, timing, and any accommodations.
   The bill provides that in ruling on an application the court shall weigh: the importance of the requested information to the defendant’s ability to present a meaningful defense; whether the information sought is available through less intrusive means, including review of the forensic interview or other discovery; the age and developmental level of the minor victim; the nature and severity of the alleged offense; the potential psychological impact on the minor victim; the length of time since the alleged offense occurred; whether the minor victim has received therapeutic treatment that could be disrupted by the deposition; the existence and quality of any forensic interview or other recorded statement; and any other factors the court deems relevant to balancing the defendant’s constitutional rights against the welfare of the minor victim. If the court grants the application, the court shall issue an order specifying: the specific topics or areas of inquiry permitted; topics or questions that are prohibited; the maximum duration of the deposition; and any other limitations the court deems appropriate to protect the minor victim while permitting meaningful discovery.
   The bill specifies that all depositions of minor victims conducted pursuant to this section shall be subject to the following mandatory protections: the deposition shall be conducted at a location chosen by the minor deponent or counsel for the minor deponent; the deposition shall not be conducted in a jail, prison, law enforcement facility, or the office of defense counsel unless the minor deponent affirmatively consents; the deposition shall be scheduled at a time that minimizes disruption to the minor deponent’s school attendance, therapeutic appointments, and regular activities; and the deposition shall be recorded by video and audio. The minor deponent shall be entitled to have present during the deposition: a parent, guardian, or other supportive adult of the minor’s choosing, provided such person is not a defendant or potential witness in the case; a victim advocate or support animal, at the minor deponent’s request; and a therapist or mental health professional familiar with the minor deponent, at the minor deponent’s request. The minor deponent may testify from behind a screen or one-way mirror that shields the minor deponent from direct view of the defendant, while permitting the defendant to observe the minor deponent. The deposition may be conducted via contemporaneous two-way video technology that permits the minor deponent to be in a separate room from the defendant and defense counsel. Counsel for the minor deponent or the prosecuting attorney may object to any question that exceeds the scope permitted by the court’s order or that constitutes deponent abuse. Upon such objection, the minor deponent shall not be required to answer until the objection is resolved. If a pattern of improper questioning emerges, counsel for the minor deponent or the prosecuting attorney may suspend the deposition and seek immediate telephonic review by the court. The court may, upon review, terminate the deposition, limit its scope further, or impose immediate sanctions.
   The bill provides that upon motion of the prosecuting attorney or counsel for the minor deponent, or upon the court’s own motion, the court shall conduct a hearing to determine whether deponent abuse occurred during a deposition conducted under this section. If the court finds by a preponderance of the evidence that deponent abuse occurred, the court shall impose one or more of the following sanctions: a fine against the offending attorney of not less than $1,000 and not more than $25,000 per instance of abuse; an order requiring the offending attorney or the attorney’s client to pay all costs associated with the deposition; an order requiring the offending attorney or the attorney’s client to pay for any additional therapeutic treatment required by the minor deponent as a result of the deponent abuse; an order excluding from evidence at trial any testimony obtained through abusive questioning; an order permitting the prosecuting attorney to inform the jury that testimony was excluded due to defense counsel’s abusive conduct, or permitting an adverse inference instruction; immediate termination of the deposition with no right to reconvene; an order prohibiting the offending attorney from conducting any further depositions of minors in any case for a period of not less than one year; referral of the offending attorney to the appropriate attorney disciplinary authority for professional misconduct; a finding of contempt of court, with appropriate civil or criminal penalties; or in cases of egregious or repeated abuse, preclusion of defenses, or other case-dispositive sanctions as the court deems just.
   The bill defines “deponent abuse”, “forensic interview”, “minor”, and “trauma-informed practices”.