House File 657 - Reprinted HOUSE FILE 657 BY COMMITTEE ON JUDICIARY (SUCCESSOR TO HF 426) (As Amended and Passed by the House March 21, 2023 ) A BILL FOR An Act relating to the preservation of biological evidence 1 collected in relation to a criminal investigation, testimony 2 by an incarcerated witness, and postconviction access to 3 investigative files in a criminal case. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 HF 657 (5) 90 as/rh/md

H.F. 657 DIVISION I 1 PRESERVATION OF BIOLOGICAL EVIDENCE IN CRIMINAL INVESTIGATIONS 2 Section 1. Section 81.1, Code 2023, 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 identifiable biological material that is cataloged 18 separately or is present on other evidence including but not 19 limited to clothing, ligatures, bedding or other household 20 materials, drinking cups, or cigarettes. 21 NEW SUBSECTION . 1B. “Custody” means a person who has 22 been arrested, is currently incarcerated, or has been civilly 23 committed. 24 Sec. 2. NEW SECTION . 81.5A Preservation of biological 25 evidence. 26 1. Except as provided in section 81.58 concerning the 27 destruction of biological evidence and section 709.10 28 concerning the gathering and preservation of sexual abuse 29 evidence collection kits, all biological evidence collected 30 involving a class “A” or class “B” felony in an agency’s 31 possession or control shall be preserved and stored by the 32 agency as follows: 33 a. For cases resulting in a conviction or a deferred 34 judgment, biological evidence shall be retained for the latter 35 -1- HF 657 (5) 90 as/rh/md 1/ 10

H.F. 657 of either of the following: 1 (1) Twenty years from the date the defendant’s conviction 2 becomes final. 3 (2) The period of time that the defendant or a codefendant 4 remains in custody. 5 b. Except as provided in section 81.9, for cases not 6 resulting in a conviction, biological evidence shall be 7 preserved and stored until the expiration of the statute of 8 limitations for the alleged offense. 9 c. A criminal or juvenile justice agency, as defined in 10 section 692.1, shall retain biological evidence as provided in 11 section 81.13, subsection 2. 12 2. The agency shall retain biological evidence in an 13 amount and a manner sufficient to develop a DNA profile from 14 the biological evidence contained in or include on physical 15 evidence and in a manner reasonably calculated to prevent 16 contamination or degradation of any biological evidence that 17 might be present, subject to a continuous chain of custody, 18 and securely retained with sufficient official documentation 19 to locate the evidence. 20 3. All records documenting the possession, control, 21 storage, and destruction of biological evidence related to a 22 criminal investigation or prosecution of an offense referenced 23 in this section shall be retained. 24 4. Upon written request by a defendant, the agency shall 25 prepare an inventory of biological evidence relevant to the 26 defendant’s case that is in the custody of the agency. 27 5. If evidence was destroyed in accordance with section 28 81.5B through a court order or other written directive, 29 the agency shall provide the defendant with a copy of the 30 documentation showing adherence with this section, the court 31 order, or the written directive. 32 6. The agency shall not be required to preserve physical 33 evidence on which biological evidence is found that is of such 34 a size, bulk, or physical character as to render retention 35 -2- HF 657 (5) 90 as/rh/md 2/ 10

H.F. 657 impracticable. When such retention is impracticable, a portion 1 of the physical evidence likely to contain biological evidence 2 shall be removed in a quantity sufficient to permit future DNA 3 testing before returning or disposing of the remainder of the 4 physical evidence. 5 7. Biological evidence shall not be destroyed when a 6 codefendant, convicted of the same crime, remains in custody, 7 and the agency shall preserve the biological evidence until all 8 codefendants are released from custody. 9 8. To comply with the preservation requirements described 10 in this section, an agency may do the following: 11 a. Retain the biological evidence. 12 b. If a continuous chain of custody can be maintained, 13 transfer the biological evidence to the custody of another 14 agency which will maintain the evidence. 15 9. This section shall not be construed to require the 16 state or any other entity to pay for or require the testing of 17 biological evidence not otherwise required by another provision 18 of federal or state law. 19 Sec. 3. NEW SECTION . 81.5B Destruction of biological 20 evidence. 21 Except as provided in section 709.10 concerning the 22 gathering and preservation of sexual abuse evidence collection 23 kits, an agency may destroy or dispose of DNA samples before 24 the period required in section 81.5A expires if all of the 25 following apply: 26 1. No other provision of federal or state law requires the 27 agency to preserve the biological evidence. 28 2. a. The agency sends a notice of intent to dispose 29 of biological evidence by certified mail, return receipt 30 requested, or by a delivery service that provides proof of 31 delivery, to the following: 32 (1) Any victim as defined in section 915.10. 33 (2) Any individual who remains in custody based on a 34 criminal conviction related to the biological evidence. 35 -3- HF 657 (5) 90 as/rh/md 3/ 10

H.F. 657 (3) The private attorney or public defender of record for 1 each individual related to the biological evidence. 2 (4) If applicable, the prosecuting agency responsible for 3 the prosecution of each individual relating to the biological 4 evidence. 5 (5) If applicable, the office of the attorney general. 6 b. The notification of intent to dispose of biological 7 evidence shall include that the evidence may be destroyed one 8 hundred eighty days after the date on which the agency received 9 proof of delivery of the notice unless the notified party does 10 either of the following: 11 (1) Files an application for DNA profiling under section 12 81.11. 13 (2) Submits a written request to the agency that the 14 biological evidence be retained. 15 Sec. 4. NEW SECTION . 81.5C Noncompliance with preservation 16 requirements. 17 1. Following a request to produce biological evidence, an 18 agency that is unable to produce biological evidence that is 19 required to be preserved under section 81.5A shall provide an 20 affidavit describing the efforts taken to locate the biological 21 evidence and affirm that the biological evidence could not be 22 located. 23 2. If the court finds that biological evidence was willfully 24 not preserved in accordance with section 81.5A, the court may 25 conduct a hearing and order appropriate remedies. 26 DIVISION II 27 INCARCERATED WITNESS TESTIMONY 28 Sec. 5. NEW SECTION . 804A.1 Definitions. 29 As used in this chapter, unless the context otherwise 30 requires: 31 1. “Benefit” means any plea bargain, bail consideration, 32 reduction or modification of sentence, or any other leniency, 33 immunity, financial payment, reward, or amelioration of current 34 or future conditions of a sentence that is requested, provided, 35 -4- HF 657 (5) 90 as/rh/md 4/ 10

H.F. 657 or will be provided in the future in connection with, or in 1 exchange for, the testimony of a incarcerated witness. 2 2. “Incarcerated witness” means a person who provides 3 testimony, or who intends to provide testimony, during a 4 criminal prosecution regarding statements made by a suspect or 5 defendant while both the witness and the suspect or defendant 6 were incarcerated, and who has requested, has been offered, or 7 may in the future receive a benefit in connection with such 8 testimony. “Incarcerated witness” does not include a person who 9 is a confidential informant, codefendant, percipient witness, 10 accomplice, or coconspirator in the criminal prosecution. 11 Sec. 6. NEW SECTION . 804A.2 Transparency in the use of 12 incarcerated witness testimony. 13 1. In any criminal prosecution, not less than ninety days 14 prior to a trial, the prosecuting attorney shall disclose its 15 intent to introduce the testimony of an incarcerated witness 16 regarding statements made by a suspect or defendant, while such 17 witness and suspect or defendant were both incarcerated. The 18 prosecuting attorney shall provide to the defense all of the 19 following: 20 a. The criminal history of the incarcerated witness, 21 including any pending or dismissed criminal charges. 22 b. The incarcerated witness’s cooperation agreement and any 23 benefit that has been requested by, provided to, or will be 24 provided in the future to the incarcerated witness. 25 c. The contents of any statement allegedly given by the 26 suspect or defendant to the incarcerated witness and the 27 contents of any statement given by the incarcerated witness 28 to law enforcement regarding the statements allegedly made by 29 the suspect or defendant, including the time and place such 30 statements were given. 31 d. Any information regarding the incarcerated witness 32 recanting testimony or statements, including the time and place 33 of the recantation, the nature of the recantation, and the 34 names of the people present at the recantation. 35 -5- HF 657 (5) 90 as/rh/md 5/ 10

H.F. 657 e. Any information concerning other criminal cases in which 1 the testimony of the incarcerated witness was introduced by a 2 prosecuting attorney regarding statements made by a suspect or 3 defendant, including any cooperation agreement and any benefit 4 that the incarcerated witness received in such case. 5 2. The court may permit the prosecuting attorney to 6 comply with the provisions of this section after the time 7 period provided in subsection 1 if the court finds that the 8 incarcerated witness was not known or the information described 9 in subsection 1 could not be discovered or obtained by the 10 prosecuting attorney exercising due diligence within the time 11 period. 12 3. If the court finds that disclosing the information 13 described in subsection 1 is likely to cause bodily harm to the 14 incarcerated witness or family members or associates of the 15 incarcerated witness, the court may do any of the following: 16 a. Order that such evidence be viewed only by the defense 17 counsel and not by the defendant or others. 18 b. Issue a protective order. 19 4. If the prosecuting attorney objects to the disclosure 20 of any information described in this section, the prosecuting 21 attorney may submit the information to the court for review. 22 Upon review of the information, the court may permit the 23 prosecuting attorney to withhold any information the court 24 finds is not required to be disclosed in accordance with the 25 Iowa rules of evidence or the Constitution of the United 26 States. 27 Sec. 7. NEW SECTION . 804A.3 Pretrial hearing —— 28 incarcerated witness testimony. 29 1. In a criminal prosecution in which the prosecuting 30 attorney intends to introduce the testimony of an incarcerated 31 witness, upon motion of the defendant, the court shall conduct 32 a pretrial hearing to determine whether the incarcerated 33 witness’s testimony exhibits reliability and is admissible 34 based on the following factors: 35 -6- HF 657 (5) 90 as/rh/md 6/ 10

H.F. 657 a. The extent to which the incarcerated witness’s testimony 1 is confirmed by other evidence. 2 b. The specificity of the testimony. 3 c. The extent to which the testimony contains details that 4 would be known only by the perpetrator of the offense. 5 d. The extent to which the details of the testimony could be 6 obtained from a source other than the suspect or defendant. 7 e. The circumstances under which the incarcerated witness 8 provided the information to the prosecuting attorney or a law 9 enforcement officer, including whether the incarcerated witness 10 was responding to leading questions. 11 2. If the prosecuting attorney fails to show by a 12 preponderance of the evidence that an incarcerated witness’s 13 testimony is reliable, the court shall exclude the testimony at 14 trial. 15 Sec. 8. NEW SECTION . 804A.4 Tracking the use of 16 incarcerated witness testimony. 17 1. A prosecuting attorney’s office shall maintain a central 18 record containing all of the following: 19 a. Any case known to the prosecuting attorney in which 20 testimony by an incarcerated witness was introduced or was 21 intended to be introduced by a prosecuting attorney regarding 22 statements made by a suspect or defendant and the substance of 23 such testimony. 24 b. Any benefit known to the prosecuting attorney that was 25 requested by, provided to, or will be provided in the future to 26 an incarcerated witness in connection with testimony provided 27 by the witness. 28 2. Each prosecuting attorney’s office shall forward the 29 information described in subsection 1 to the division of 30 criminal investigation of the department of public safety. The 31 division shall maintain a statewide database containing the 32 information forwarded pursuant to this section. The database 33 and all central records described in subsection 1 shall be 34 accessible only to prosecuting attorneys and shall otherwise 35 -7- HF 657 (5) 90 as/rh/md 7/ 10

H.F. 657 remain confidential and not subject to open records requests. 1 3. If an incarcerated witness receives any benefit in 2 connection with offering or providing testimony against a 3 defendant, the prosecuting attorney shall notify any victim 4 connected to the crime for which the witness was incarcerated. 5 DIVISION III 6 POSTCONVICTION ACCESS TO INVESTIGATIVE FILES IN CRIMINAL CASES 7 Sec. 9. NEW SECTION . 701.13 Postconviction file access —— 8 discoverable materials. 9 1. For purposes of this section, “file” means all papers, 10 documents, statements, photographs, or tangible objects in 11 the possession, custody, or control of the state including 12 any results or reports of physical or mental examinations and 13 of scientific tests or experiments made in connection with a 14 particular criminal case. 15 2. Except as provided in subsection 3, a prosecuting 16 attorney shall make available to a defendant who has been 17 convicted of a felony or an aggravated misdemeanor, any 18 file in the possession of a law enforcement agency, county 19 attorney, or the attorney general in this state involved in 20 the investigation of any felony or aggravated misdemeanor 21 committed by the defendant relating to the prosecution of the 22 defendant that the defendant was entitled to at the time of the 23 defendant’s trial. Nothing in this subsection shall require 24 the disclosure of the content of an attorney work product. 25 3. In all criminal cases involving a conviction for a felony 26 or an aggravated misdemeanor, all of the following shall apply: 27 a. Except as provided in subsection 4, a defendant’s 28 previous trial or appellate attorney shall securely retain a 29 copy of the defendant’s file for seven years after completion 30 or termination of representation of the defendant or until the 31 completion of the defendant’s term of imprisonment, whichever 32 occurs first. An electronic copy is sufficient only if an 33 entire file can be digitally copied and preserved. 34 b. A defendant’s file may be maintained by electronic, 35 -8- HF 657 (5) 90 as/rh/md 8/ 10

H.F. 657 photographic, or other media provided that printed copies may 1 be produced and the records are readily accessible to the 2 defendant’s previous trial or appellate attorney. 3 c. A defendant’s previous trial or appellate attorney shall 4 make available to the defendant or the defendant’s current 5 attorney the complete file relating to the prosecution of the 6 defendant. 7 4. a. A defendant’s previous trial or appellate attorney 8 may destroy the defendant’s file prior to the end of the term 9 of retention described in subsection 3 if the attorney receives 10 written or electronically recorded consent from the defendant. 11 The written or electronic record of the consent to destruction 12 shall be maintained by the attorney for a period of at least 13 six years after completion or termination of representation or 14 the end of the defendant’s sentence, whichever occurs first. 15 b. Items in the file of monetary value shall not be 16 destroyed. 17 c. A defendant’s previous trial or appellate attorney 18 destroying a file pursuant to this subsection shall securely 19 store items of monetary value or deliver such items to the 20 state unclaimed property agency. 21 d. The file shall be destroyed in a manner that preserves 22 client confidentiality. 23 5. A defendant’s previous trial or appellate attorney shall 24 not destroy a file pursuant to subsection 4 if the attorney 25 knows or reasonably should know any of the following: 26 a. A legal malpractice claim is pending related to the 27 representation. 28 b. A criminal or other governmental investigation is pending 29 related to the representation. 30 c. A complaint is pending before the Iowa attorney 31 disciplinary board related to the representation. 32 d. Other litigation is pending related to the 33 representation. 34 6. If a prosecuting attorney has a reasonable belief that 35 -9- HF 657 (5) 90 as/rh/md 9/ 10

H.F. 657 allowing inspection of any portion of the defendant’s file by a 1 defendant’s current attorney would place a person in imminent 2 danger, the prosecuting attorney may submit any portion of 3 the file so identified for inspection by the court by filing 4 a motion for a protective order with the court of conviction. 5 If upon examination of the file the court finds that the 6 submitted portion of the file would not assist the defendant 7 in investigating, preparing, or presenting a motion for any 8 appropriate relief, the court may in its discretion allow the 9 prosecuting attorney to withhold that portion of the file. 10 7. A defendant, the defendant’s current attorney, 11 investigator, expert, consulting legal counsel, or other agent 12 of the attorney representing the defendant shall not disclose 13 to a third party any file received from the prosecuting 14 attorney under this section that is prohibited from public 15 disclosure unless any of the following apply: 16 a. A court orders the disclosure of the file upon a showing 17 of good cause after notice and a hearing to consider the 18 security and privacy interests of a victim or witness. 19 b. The file has already been publicly disclosed. 20 8. The actual costs involved in the examination or copying 21 of the disclosed file pursuant to this section shall be 22 reimbursed by the defendant. 23 9. This section does not require the retention of any file 24 not otherwise required by law or court order. 25 -10- HF 657 (5) 90 as/rh/md 10/ 10