House Study Bill 36 - Introduced HOUSE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON HOLT) A BILL FOR An Act relating to investigative procedure, including the 1 preservation of biological evidence collected in relation 2 to a criminal investigation, testimony by an incarcerated 3 witness, and postconviction access to investigative files in 4 a criminal case. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 6 TLSB 1585YC (2) 91 as/js

H.F. _____ DIVISION I 1 PRESERVATION OF BIOLOGICAL EVIDENCE IN CRIMINAL INVESTIGATIONS 2 Section 1. Section 81.1, Code 2025, is amended by adding the 3 following new subsections: 4 NEW SUBSECTION . 01. “Agency” means any governmental or 5 public entity within the state and its officials or employees 6 including but not limited to law enforcement agencies, 7 county attorney offices, courts, public hospitals, the state 8 criminalistics laboratory or similar qualified laboratory, and 9 any other entity or individual charged with the collection, 10 storage, or retrieval of biological evidence. 11 NEW SUBSECTION . 1A. “Biological evidence” means 12 any item that contains blood, semen, hair, saliva, skin 13 tissue, fingernail scrapings, bone, bodily fluids, or other 14 identifiable biological material that was collected as part 15 of a criminal investigation or may reasonably be used to 16 incriminate or exculpate any person for the offense. This 17 applies to material that is cataloged separately or is present 18 on other evidence including but not limited to clothing, 19 ligatures, bedding or other household materials, drinking cups, 20 or cigarettes. 21 NEW SUBSECTION . 1B. “Custody” means a person who has 22 been arrested, is currently incarcerated, has been civilly 23 committed, is on parole or probation, or who is subject to sex 24 offender registration requirements. 25 Sec. 2. NEW SECTION . 81.5A Preservation of biological 26 evidence. 27 1. Except as provided in section 709.10 concerning the 28 gathering and preservation of sexual abuse evidence collection 29 kits, all biological evidence collected involving a felony or 30 aggravated misdemeanor in an agency’s possession or control 31 shall be preserved and stored by the agency as follows: 32 a. For cases resulting in a conviction or a deferred 33 judgment, biological evidence shall be retained for the latter 34 of either of the following: 35 -1- LSB 1585YC (2) 91 as/js 1/ 16

H.F. _____ (1) Twenty years from the date the defendant’s conviction 1 becomes final. 2 (2) The period of time that the defendant or a codefendant 3 remains in custody. 4 b. Except as provided in section 81.9, for cases not 5 resulting in a conviction, biological evidence shall be 6 preserved and stored until the expiration of the statute of 7 limitations for the alleged offense. 8 c. A criminal or juvenile justice agency, as defined in 9 section 692.1, shall retain biological evidence as provided in 10 section 81.13, subsection 2. 11 2. The agency shall retain biological evidence in an amount 12 and a manner sufficient to develop a DNA profile from the 13 biological material contained in or included on the evidence 14 and in a manner reasonably calculated to prevent contamination 15 or degradation of any biological evidence that might be 16 present, subject to a continuous chain of custody, and securely 17 retained with sufficient official documentation to locate the 18 evidence. 19 3. All records documenting the possession, control, 20 storage, and destruction of biological evidence related to a 21 criminal investigation or prosecution of an offense referenced 22 in this section shall be retained. 23 4. Upon written request by a defendant, the agency shall 24 prepare an inventory of biological evidence relevant to the 25 defendant’s case that is in the custody of the agency. 26 5. If evidence was destroyed in accordance with section 27 81.5B through a court order or other written directive, 28 the agency shall provide the defendant with a copy of the 29 documentation showing adherence with this section, the court 30 order, or the written directive. 31 6. The agency shall not be required to preserve physical 32 evidence on which biological evidence is found that is of such 33 a size, bulk, or physical character as to render retention 34 impracticable. When such retention is impracticable, a portion 35 -2- LSB 1585YC (2) 91 as/js 2/ 16

H.F. _____ of the physical evidence likely to contain biological evidence 1 shall be removed in a quantity sufficient to permit future DNA 2 testing before returning or disposing of the remainder of the 3 physical evidence. 4 7. Biological evidence shall not be destroyed when 5 a codefendant, convicted of the same crime, remains in 6 custody, and the agency shall preserve the evidence until all 7 codefendants are released from custody. 8 Sec. 3. NEW SECTION . 81.5B Destruction of biological 9 evidence. 10 Except as provided in section 709.10 concerning the 11 gathering and preservation of sexual abuse evidence collection 12 kits, an agency may destroy or dispose of DNA samples before 13 the period required in section 81.5A expires if all of the 14 following apply: 15 1. No other provision of federal or state law requires the 16 agency to preserve the biological evidence. 17 2. a. The agency sends a notice of intent to dispose 18 of biological evidence by certified mail, return receipt 19 requested, or by a delivery service that provides proof of 20 delivery, to the following: 21 (1) Any victim as defined in section 915.10. 22 (2) Any individual who remains in custody based on a 23 criminal conviction related to the biological evidence. 24 (3) The private attorney or public defender of record for 25 each individual related to the evidence. 26 (4) If applicable, the prosecuting agency responsible for 27 the prosecution of each individual relating to the biological 28 evidence. 29 (5) If applicable, the office of the attorney general. 30 b. The notification of intent to dispose of biological 31 evidence shall include that the evidence may be destroyed one 32 hundred eighty days after the date on which the agency received 33 proof of delivery of the notice unless the notified party does 34 either of the following: 35 -3- LSB 1585YC (2) 91 as/js 3/ 16

H.F. _____ (1) Files an application for DNA profiling under section 1 81.11. 2 (2) Submits a written request to the agency that the 3 biological evidence be retained. 4 Sec. 4. NEW SECTION . 81.5C Noncompliance with preservation 5 requirements. 6 1. Following a request to produce biological evidence, an 7 agency that is unable to produce biological evidence that is 8 required to be preserved under section 81.5A shall provide an 9 affidavit describing the efforts taken to locate the biological 10 evidence and affirm that the biological evidence could not be 11 located. 12 2. If the court finds that biological evidence was not 13 preserved in accordance with section 81.5A, the court may 14 conduct a hearing and impose appropriate sanctions and order 15 appropriate remedies. 16 DIVISION II 17 INCARCERATED WITNESS TESTIMONY 18 Sec. 5. NEW SECTION . 804A.1 Definitions. 19 As used in this chapter, unless the context otherwise 20 requires: 21 1. “Benefit” means any plea bargain, bail consideration, 22 reduction or modification of sentence, or any other leniency, 23 immunity, financial payment, reward, or amelioration of current 24 or future conditions of a sentence that is requested, provided, 25 or will be provided in the future in connection with, or in 26 exchange for, the testimony of a incarcerated witness. 27 2. “Incarcerated witness” means a person who provides 28 testimony, or who intends to provide testimony, during a 29 criminal prosecution regarding statements made by a suspect or 30 defendant while both the witness and the suspect or defendant 31 were incarcerated, and who has requested, has been offered, or 32 may in the future receive a benefit in connection with such 33 testimony. “Incarcerated witness” does not include a person who 34 is a confidential informant, codefendant, percipient witness, 35 -4- LSB 1585YC (2) 91 as/js 4/ 16

H.F. _____ accomplice, or coconspirator in the criminal prosecution. 1 Sec. 6. NEW SECTION . 804A.2 Transparency in the use of 2 incarcerated witness testimony. 3 1. In any criminal prosecution, not less than ninety days 4 prior to a trial, the prosecuting attorney shall disclose its 5 intent to introduce the testimony of an incarcerated witness 6 regarding statements made by a suspect or defendant, while such 7 witness and suspect or defendant were both incarcerated. The 8 prosecuting attorney shall provide to the defense all of the 9 following: 10 a. The criminal history of the incarcerated witness, 11 including any pending or dismissed criminal charges. 12 b. The incarcerated witness’s cooperation agreement and any 13 benefit that has been requested by, provided to, or will be 14 provided in the future to the incarcerated witness. 15 c. The contents of any statement allegedly given by the 16 suspect or defendant to the incarcerated witness and the 17 contents of any statement given by the incarcerated witness 18 to law enforcement regarding the statements allegedly made by 19 the suspect or defendant, including the time and place such 20 statements were given. 21 d. Any information regarding the incarcerated witness 22 recanting testimony or statements, including the time and place 23 of the recantation, the nature of the recantation, and the 24 names of the people present at the recantation. 25 e. Any information concerning other criminal cases in 26 which the testimony of the incarcerated witness was introduced 27 or was intended to be introduced by a prosecuting attorney 28 regarding statements made by a suspect or defendant, including 29 any cooperation agreement and any benefit that the incarcerated 30 witness received in such case. 31 2. The court may permit the prosecuting attorney to 32 comply with the provisions of this section after the time 33 period provided in subsection 1 if the court finds that the 34 incarcerated witness was not known or the information described 35 -5- LSB 1585YC (2) 91 as/js 5/ 16

H.F. _____ in subsection 1 could not be discovered or obtained by the 1 prosecuting attorney exercising due diligence within the time 2 period. 3 3. If the court finds that disclosing the information 4 described in subsection 1 is likely to cause bodily harm to the 5 incarcerated witness, the court may do any of the following: 6 a. Order that such evidence be viewed only by the defense 7 counsel and not by the defendant or others. 8 b. Issue a protective order. 9 4. If the testimony of an incarcerated witness is admitted 10 into evidence, the jury shall be instructed that such testimony 11 was provided by an incarcerated witness and informed of any 12 benefit that has been requested by, provided to, or will 13 be provided in the future to the incarcerated witness in 14 connection with providing such testimony. 15 Sec. 7. NEW SECTION . 804A.3 Pretrial hearing —— 16 incarcerated witness testimony. 17 1. In a criminal prosecution in which the prosecuting 18 attorney intends to introduce the testimony of an incarcerated 19 witness, upon motion of the defendant, the court shall conduct 20 a pretrial hearing to determine whether the incarcerated 21 witness’s testimony exhibits reliability and is admissible 22 based on the following factors: 23 a. The extent to which the incarcerated witness’s testimony 24 is confirmed by other evidence. 25 b. The specificity of the testimony. 26 c. The extent to which the testimony contains details that 27 would be known only by the perpetrator of the offense. 28 d. The extent to which the details of the testimony could be 29 obtained from a source other than the suspect or defendant. 30 e. The circumstances under which the incarcerated witness 31 provided the information to the prosecuting attorney or a law 32 enforcement officer, including whether the incarcerated witness 33 was responding to leading questions. 34 2. If the prosecuting attorney fails to show by a 35 -6- LSB 1585YC (2) 91 as/js 6/ 16

H.F. _____ preponderance of the evidence that an incarcerated witness’s 1 testimony is reliable, the court shall exclude the testimony at 2 trial. 3 Sec. 8. NEW SECTION . 804A.4 Tracking the use of 4 incarcerated witness testimony. 5 1. A prosecuting attorney’s office shall maintain a central 6 record containing all of the following: 7 a. Any case in which testimony by an incarcerated 8 witness was introduced or was intended to be introduced by a 9 prosecuting attorney regarding statements made by a suspect or 10 defendant and the substance of such testimony. 11 b. Any benefit that was requested by, provided to, or 12 will be provided in the future to an incarcerated witness in 13 connection with testimony provided by the witness. 14 2. Each prosecuting attorney’s office shall forward the 15 information described in subsection 1 to the division of 16 criminal investigation of the department of public safety. The 17 division shall maintain a statewide database containing the 18 information forwarded pursuant to this section. The database 19 shall be accessible only to prosecuting attorneys and shall 20 otherwise remain confidential and not subject to open records 21 requests. 22 3. If an incarcerated witness receives any benefit in 23 connection with offering or providing testimony against a 24 defendant, the prosecuting attorney shall notify any victim 25 connected to the crime for which the witness was incarcerated. 26 DIVISION III 27 POSTCONVICTION ACCESS TO INVESTIGATIVE FILES IN CRIMINAL CASES 28 Sec. 9. NEW SECTION . 701.14 Postconviction file access —— 29 discoverable materials. 30 1. For purposes of this section, “file” means all papers, 31 documents, statements, photographs, or tangible objects in 32 the possession, custody, or control of the state including 33 any results or reports of physical or mental examinations and 34 of scientific tests or experiments made in connection with a 35 -7- LSB 1585YC (2) 91 as/js 7/ 16

H.F. _____ particular criminal case. 1 2. Except as provided in subsection 3, for the purpose of 2 developing a claim for postconviction relief under chapter 822, 3 a prosecuting attorney shall make available to an attorney for 4 a defendant, the defendant having been convicted of a felony or 5 an aggravated misdemeanor, any file in the possession of a law 6 enforcement agency, county attorney, or the attorney general 7 in this state involved in the investigation of any felony or 8 aggravated misdemeanor committed by the defendant relating 9 to the prosecution of the defendant that the defendant was 10 entitled to at the time of the defendant’s trial. 11 3. In all criminal cases involving a conviction for a felony 12 or an aggravated misdemeanor, all of the following shall apply: 13 a. Except as provided in subsection 4, a defendant’s 14 previous trial or appellate attorney shall securely retain a 15 copy of the defendant’s file for seven years after completion 16 or termination of representation of the defendant or until the 17 completion of the defendant’s term of imprisonment, whichever 18 occurs first. An electronic copy is sufficient only if an 19 entire file can be digitally copied and preserved. 20 b. A defendant’s file may be maintained by electronic, 21 photographic, or other media provided that printed copies may 22 be produced and the records are readily accessible to the 23 defendant’s previous trial or appellate attorney. 24 c. A defendant’s previous trial or appellate attorney shall 25 make available to the defendant or the defendant’s current 26 attorney the complete file relating to the prosecution of the 27 defendant. 28 4. a. A defendant’s previous trial or appellate attorney 29 may destroy the defendant’s file prior to the end of the term 30 of retention described in subsection 3 if the attorney receives 31 written or electronically recorded consent from the defendant. 32 The written or electronic record of the consent to destruction 33 shall be maintained by the attorney for a period of at least 34 six years after completion or termination of representation or 35 -8- LSB 1585YC (2) 91 as/js 8/ 16

H.F. _____ the end of the defendant’s sentence, whichever occurs first. 1 b. Items in the file of monetary value shall not be 2 destroyed. 3 c. A defendant’s previous trial or appellate attorney 4 destroying a file pursuant to this subsection shall securely 5 store items of intrinsic value or deliver such items to the 6 state unclaimed property agency. 7 d. The file shall be destroyed in a manner that preserves 8 client confidentiality. 9 5. A defendant’s previous trial or appellate attorney shall 10 not destroy a file pursuant to subsection 4 if the attorney 11 knows or reasonably should know any of the following: 12 a. A legal malpractice claim is pending related to the 13 representation. 14 b. A criminal or other governmental investigation is pending 15 related to the representation. 16 c. A complaint is pending before the Iowa attorney 17 disciplinary board related to the representation. 18 d. Other litigation is pending related to the 19 representation. 20 6. If a prosecuting attorney has a reasonable belief 21 that allowing inspection of any portion of the defendant’s 22 file by a defendant’s current attorney would place a person 23 in imminent danger, the prosecuting attorney may submit any 24 portion of the file so identified for inspection by the court. 25 If upon examination of the file the court finds that the 26 submitted portion of the file would not assist the defendant 27 in investigating, preparing, or presenting a motion for any 28 appropriate relief, the court may in its discretion allow the 29 prosecutor to withhold that portion of the file. 30 7. A defendant, the defendant’s current attorney, 31 investigator, expert, consulting legal counsel, or other agent 32 of the attorney representing the defendant shall not disclose 33 to a third party any file received from the prosecuting 34 attorney under this section that is prohibited from public 35 -9- LSB 1585YC (2) 91 as/js 9/ 16

H.F. _____ disclosure unless any of the following apply: 1 a. A court orders the disclosure of the file upon a showing 2 of good cause after notice and a hearing to consider the 3 security and privacy interests of a victim or witness. 4 b. The file has already been publicly disclosed. 5 8. The actual costs involved in the examination or copying 6 of the disclosed file pursuant to this section shall be 7 reimbursed by the defendant. 8 9. This section does not require the retention of any file 9 not otherwise required by law or court order. 10 EXPLANATION 11 The inclusion of this explanation does not constitute agreement with 12 the explanation’s substance by the members of the general assembly. 13 This bill relates to investigative procedure, including the 14 preservation of biological evidence collected in relation to a 15 criminal investigation, testimony by an incarcerated witness, 16 and postconviction access to investigative files in a criminal 17 case. 18 DIVISION I —— PRESERVATION OF BIOLOGICAL EVIDENCE IN 19 CRIMINAL INVESTIGATIONS. The bill provides that except as 20 provided in Code section 709.10 (gathering and preservation 21 of sexual abuse evidence collection kits), all biological 22 evidence collected involving a felony or aggravated misdemeanor 23 in an agency’s possession or control shall be preserved and 24 stored by the agency as follows: for cases resulting in a 25 conviction or a deferred judgment, the biological evidence 26 shall be retained for the latter of 20 years from the date the 27 defendant’s conviction becomes final or the period of time that 28 the defendant or a codefendant remains in custody; and for 29 cases not resulting in a conviction, the biological evidence 30 shall be preserved and stored until the expiration of the 31 statute of limitations for the alleged offense. The agency 32 shall retain biological material contained in or included on 33 the biological evidence in an amount and a manner sufficient 34 to develop a DNA profile from the biological evidence and in 35 -10- LSB 1585YC (2) 91 as/js 10/ 16

H.F. _____ a manner reasonably calculated to prevent contamination or 1 degradation of any biological evidence that might be present, 2 subject to a continuous chain of custody, and securely retained 3 with sufficient official documentation to locate the evidence. 4 The bill provides that upon written request by a defendant, 5 the agency shall prepare an inventory of biological evidence 6 relevant to the defendant’s case that is in the custody of the 7 agency. If biological evidence was destroyed in accordance 8 with the bill through a court order or other written directive, 9 the agency shall provide the defendant with a copy of the 10 documentation showing adherence with the new Code section, the 11 court order, or the written directive. 12 The bill provides that the agency shall not be required 13 to preserve physical evidence on which biological evidence 14 is found that is of such a size, bulk, or physical character 15 as to render retention impracticable. A portion of the 16 physical evidence likely to contain biological evidence shall 17 be removed in a quantity sufficient to permit future DNA 18 testing before returning or disposing of the remainder of the 19 physical evidence. Biological evidence shall not be destroyed 20 when a codefendant, convicted of the same crime, remains in 21 custody, and the agency shall preserve the evidence until all 22 codefendants are released from custody. 23 The bill provides that the agency may destroy or dispose 24 of a DNA sample before the period required expires if no 25 other provision of federal or state law requires the agency 26 to preserve the biological evidence and the agency sends a 27 notice of intent to dispose of biological evidence by certified 28 mail, return receipt requested, or by a delivery service that 29 provides proof of delivery to any victim, any individual who 30 remains in custody based on a criminal conviction related 31 to the biological evidence, the private attorney or public 32 defender of record for each individual related to the 33 biological evidence, and, if applicable, the prosecuting agency 34 responsible for the prosecution of each individual relating to 35 -11- LSB 1585YC (2) 91 as/js 11/ 16

H.F. _____ the biological evidence and the attorney general. A notified 1 person may file an application for DNA profiling or submit a 2 written request to the agency that the biological evidence be 3 retained. 4 The bill provides that an agency that receives a request 5 to produce biological evidence that the agency is unable to 6 produce shall provide an affidavit describing the efforts 7 taken to locate the biological evidence and affirm that 8 the biological evidence could not be located. If the court 9 finds that biological evidence was not preserved as required 10 under the bill, the court may conduct a hearing and impose 11 appropriate sanctions and order appropriate remedies. 12 The bill defines “agency”, “biological evidence”, and 13 “custody”. 14 DIVISION II —— INCARCERATED WITNESS TESTIMONY. The 15 bill provides that in any criminal prosecution, not less 16 than 90 days prior to a trial, the prosecuting attorney 17 shall disclose its intent to introduce the testimony of an 18 incarcerated witness regarding statements made by a suspect or 19 defendant, while such witness and suspect or defendant were 20 both incarcerated. The prosecuting attorney shall provide to 21 the defense all of the following: the criminal history of 22 the incarcerated witness, including any pending or dismissed 23 criminal charges; the incarcerated witness’s cooperation 24 agreement and any benefit that has been requested by, provided 25 to, or will be provided in the future to the incarcerated 26 witness; any statement allegedly given by the suspect or 27 defendant to the incarcerated witness and any statement given 28 by the incarcerated witness to law enforcement regarding the 29 statements allegedly made by the suspect or defendant; any 30 information regarding the incarcerated witness recanting 31 testimony or statements; and any information concerning other 32 criminal cases in which the testimony of the incarcerated 33 witness was introduced or was intended to be introduced by a 34 prosecuting attorney. The bill provides that the court may 35 -12- LSB 1585YC (2) 91 as/js 12/ 16

H.F. _____ permit the prosecuting attorney to comply with the duty to 1 disclose the prosecuting attorney’s intent to introduce the 2 testimony of an incarcerated witness after the 90-day time 3 period if the court finds that the incarcerated witness was not 4 known or the information described could not be discovered or 5 obtained by the prosecuting attorney exercising due diligence 6 within the 90-day time period. 7 The bill provides that if the court finds that disclosing 8 the information described in the bill is likely to cause bodily 9 harm to the incarcerated witness, the court may order that such 10 evidence be viewed only by the defense counsel or may issue a 11 protective order. If the testimony of an incarcerated witness 12 is admitted into evidence, the jury shall be instructed that 13 such testimony was provided by an incarcerated witness and 14 informed of any benefit that has been requested by, provided 15 to, or will be provided in the future to the incarcerated 16 witness in connection with providing such testimony. 17 The bill provides that in a criminal prosecution in which 18 the prosecuting attorney intends to introduce the testimony 19 of an incarcerated witness, upon motion of the defendant, the 20 court shall conduct a pretrial hearing to determine whether 21 the incarcerated witness’s testimony exhibits reliability and 22 is admissible based on the following factors: the extent to 23 which the incarcerated witness’s testimony is confirmed by 24 other evidence; the specificity of the testimony; the extent 25 to which the testimony contains details that would be known 26 only by the perpetrator of the offense; the extent to which the 27 details of the testimony could be obtained from a source other 28 than the suspect or defendant; and the circumstances under 29 which the incarcerated witness provided the information to the 30 prosecuting attorney or a law enforcement officer. If the 31 prosecuting attorney fails to show by a preponderance of the 32 evidence that an incarcerated witness’s testimony is reliable, 33 the court shall exclude the testimony at trial. 34 The bill requires that each prosecuting attorney’s office 35 -13- LSB 1585YC (2) 91 as/js 13/ 16

H.F. _____ shall maintain a central record containing any case in which 1 testimony by an incarcerated witness was introduced or was 2 intended to be introduced regarding statements made by a 3 suspect or defendant and the substance of such testimony, and 4 any benefit that was requested by, provided to, or will be 5 provided in the future to an incarcerated witness in connection 6 with testimony provided by the witness. A prosecuting 7 attorney’s office shall forward the information to the division 8 of criminal investigation of the department of public safety. 9 The division shall maintain a statewide database containing 10 the information forwarded. The database shall be accessible 11 only to prosecuting attorneys and shall otherwise remain 12 confidential and not subject to open records requests. If 13 an incarcerated witness receives any benefit in connection 14 with offering or providing testimony against a defendant, the 15 prosecuting attorney shall notify any victim connected to the 16 crime for which the witness was incarcerated. 17 The bill defines “benefit” and “incarcerated witness”. 18 DIVISION III —— POSTCONVICTION ACCESS TO INVESTIGATIVE FILES 19 IN CRIMINAL CASES. The bill provides that the prosecuting 20 attorney shall make available to an attorney for a defendant, 21 the defendant having been convicted of a felony or an 22 aggravated misdemeanor, the file in the possession of any law 23 enforcement agency, county attorney, or the attorney general 24 in this state involved in the investigation of the public 25 offenses committed by the defendant or the prosecution of 26 the defendant that the defendant was entitled to at the time 27 of the defendant’s trial. If the prosecuting attorney has a 28 reasonable belief that allowing inspection of any portion of 29 the file by a defendant’s current attorney would place a person 30 in imminent danger, the prosecuting attorney may submit any 31 portion of the file identified for inspection by the court. If 32 upon examination the court finds that the submitted portion 33 of the file would not assist the defendant in investigating, 34 preparing, or presenting a motion for appropriate relief, the 35 -14- LSB 1585YC (2) 91 as/js 14/ 16

H.F. _____ court in its discretion may allow the prosecutor to withhold 1 that portion of the file. 2 The bill provides that in all criminal matters involving 3 a conviction for a felony or aggravated misdemeanor, a 4 defendant’s previous trial or appellate attorney shall securely 5 retain a copy of the defendant’s file for seven years after 6 completion or termination of representation of the defendant or 7 until the completion of the defendant’s term of imprisonment, 8 whichever occurs first. An electronic copy is sufficient only 9 if an entire file can be digitally copied and preserved. A 10 defendant’s file may be maintained by electronic, photographic, 11 or other media provided that printed copies may be produced and 12 the records are readily accessible to the defendant’s previous 13 trial or appellate attorney. A defendant’s previous trial or 14 appellate attorney shall make available to the defendant or the 15 defendant’s current attorney the complete file relating to the 16 prosecution of the defendant. 17 The bill provides that the defendant’s previous trial or 18 appellate attorney may destroy the defendant’s file prior to 19 the end of the required term of retention if the attorney 20 receives written or electronically recorded consent from the 21 defendant. The written or electronic record of the consent 22 to destruction shall be maintained by the attorney for a 23 period of at least six years after completion or termination 24 of representation or the end of the defendant’s sentence, 25 whichever occurs first. Items in the file of monetary value 26 shall not be destroyed. A defendant’s previous trial or 27 appellate attorney destroying a file shall securely store items 28 of intrinsic value or deliver such items to the state unclaimed 29 property agency. The file shall be destroyed in a manner that 30 preserves client confidentiality. 31 The bill provides that a defendant’s previous trial or 32 appellate attorney shall not destroy a file prior to the 33 end of the required term of retention if the attorney knows 34 or reasonably should know that a legal malpractice claim 35 -15- LSB 1585YC (2) 91 as/js 15/ 16

H.F. _____ is pending related to the representation; a criminal or 1 other governmental investigation is pending related to the 2 representation; a complaint is pending before the Iowa attorney 3 disciplinary board related to the representation; or other 4 litigation is pending related to the representation. If a 5 prosecuting attorney has a reasonable belief that allowing 6 inspection of any portion of the defendant’s file by a 7 defendant’s current attorney would place a person in imminent 8 danger, the prosecuting attorney may submit any portion 9 for inspection by the court. If the court finds that the 10 submitted portion of the file would not assist the defendant 11 in investigating, preparing, or presenting a motion for any 12 appropriate relief, the court may in its discretion allow the 13 prosecuting attorney to withhold that portion of the file. 14 The bill provides that the defendant, the defendant’s 15 attorney, investigator, expert, consulting legal counsel, or 16 other agent of the attorney representing the defendant shall 17 not disclose to a third party any file received from the 18 prosecuting attorney that is prohibited from public disclosure 19 unless a court orders the disclosure of the file upon a showing 20 of good cause after notice and a hearing to consider the 21 security and privacy interests of a victim or witness, or the 22 file has already been publicly disclosed. 23 The actual costs involved in the examination or copying of 24 any file disclosed shall be reimbursed by the defendant. The 25 bill does not require the retention of any file not otherwise 26 required by law or court order. 27 The bill defines “file” as papers, documents, statements, 28 photographs, or tangible objects in the possession, custody, 29 or control of the state including any results or reports of 30 physical or mental examinations and of scientific tests or 31 experiments made in connection with a particular case. 32 -16- LSB 1585YC (2) 91 as/js 16/ 16