House File 501 - IntroducedA Bill ForAn Act 1relating to the preservation of biological evidence
2collected in relation to a criminal investigation, testimony
3by an incarcerated witness, and postconviction access to
4investigative files in a criminal case.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2PRESERVATION OF BIOLOGICAL EVIDENCE IN CRIMINAL INVESTIGATIONS
3   Section 1.  Section 81.1, Code 2023, is amended by adding the
4following new subsections:
5   NEW SUBSECTION.  01.  “Agency” means any governmental or
6public entity within the state and its officials or employees
7including but not limited to law enforcement agencies,
8county attorney offices, courts, public hospitals, the state
9criminalistics laboratory or similar qualified laboratory, and
10any other entity or individual charged with the collection,
11storage, or retrieval of biological evidence.
12   NEW SUBSECTION.  1A.  “Biological evidence” means
13any item that contains blood, semen, hair, saliva, skin
14tissue, fingernail scrapings, bone, bodily fluids, or other
15identifiable biological material that was collected as part
16of a criminal investigation or may reasonably be used to
17incriminate or exculpate any person for the offense. This
18applies to material that is cataloged separately or is present
19on other evidence including but not limited to clothing,
20ligatures, bedding or other household materials, drinking cups,
21or cigarettes.
22   NEW SUBSECTION.  1B.  “Custody” means a person who has
23been arrested, is currently incarcerated, has been civilly
24committed, is on parole or probation, or who is subject to sex
25offender registration requirements.
26   Sec. 2.  NEW SECTION.  81.5A  Preservation of biological
27evidence.
   281.  Except as provided in section 709.10 concerning the
29gathering and preservation of sexual abuse evidence collection
30kits, all biological evidence collected involving a felony or
31aggravated misdemeanor in an agency’s possession or control
32shall be preserved and stored by the agency as follows:
   33a.  For cases resulting in a conviction or a deferred
34judgment, biological evidence shall be retained for the latter
35of either of the following:
-1-
   1(1)  Twenty years from the date the defendant’s conviction
2becomes final.
   3(2)  The period of time that the defendant or a codefendant
4remains in custody.
   5b.  Except as provided in section 81.9, for cases not
6resulting in a conviction, biological evidence shall be
7preserved and stored until the expiration of the statute of
8limitations for the alleged offense.
   9c.  A criminal or juvenile justice agency, as defined in
10section 692.1, shall retain biological evidence as provided in
11section 81.13, subsection 2.
   122.  The agency shall retain biological evidence in an amount
13and a manner sufficient to develop a DNA profile from the
14biological material contained in or included on the evidence
15and in a manner reasonably calculated to prevent contamination
16or degradation of any biological evidence that might be
17present, subject to a continuous chain of custody, and securely
18retained with sufficient official documentation to locate the
19evidence.
   203.  All records documenting the possession, control,
21storage, and destruction of biological evidence related to a
22criminal investigation or prosecution of an offense referenced
23in this section shall be retained.
   244.  Upon written request by a defendant, the agency shall
25prepare an inventory of biological evidence relevant to the
26defendant’s case that is in the custody of the agency.
   275.  If evidence was destroyed in accordance with section
2881.5B through a court order or other written directive,
29the agency shall provide the defendant with a copy of the
30documentation showing adherence with this section, the court
31order, or the written directive.
   326.  The agency shall not be required to preserve physical
33evidence on which biological evidence is found that is of such
34a size, bulk, or physical character as to render retention
35impracticable. When such retention is impracticable, a portion
-2-1of the physical evidence likely to contain biological evidence
2shall be removed in a quantity sufficient to permit future DNA
3testing before returning or disposing of the remainder of the
4physical evidence.
   57.  Biological evidence shall not be destroyed when
6a codefendant, convicted of the same crime, remains in
7custody, and the agency shall preserve the evidence until all
8codefendants are released from custody.
9   Sec. 3.  NEW SECTION.  81.5B  Destruction of biological
10evidence.
   11Except as provided in section 709.10 concerning the
12gathering and preservation of sexual abuse evidence collection
13kits, an agency may destroy or dispose of DNA samples before
14the period required in section 81.5A expires if all of the
15following apply:
   161.  No other provision of federal or state law requires the
17agency to preserve the biological evidence.
   182.  a.  The agency sends a notice of intent to dispose
19of biological evidence by certified mail, return receipt
20requested, or by a delivery service that provides proof of
21delivery, to the following:
   22(1)  Any victim as defined in section 915.10.
   23(2)  Any individual who remains in custody based on a
24criminal conviction related to the biological evidence.
   25(3)  The private attorney or public defender of record for
26each individual related to the evidence.
   27(4)  If applicable, the prosecuting agency responsible for
28the prosecution of each individual relating to the biological
29evidence.
   30(5)  If applicable, the office of the attorney general.
   31b.  The notification of intent to dispose of biological
32evidence shall include that the evidence may be destroyed one
33hundred eighty days after the date on which the agency received
34proof of delivery of the notice unless the notified party does
35either of the following:
-3-
   1(1)  Files an application for DNA profiling under section
281.11.
   3(2)  Submits a written request to the agency that the
4biological evidence be retained.
5   Sec. 4.  NEW SECTION.  81.5C  Noncompliance with preservation
6requirements.
   71.  Following a request to produce biological evidence, an
8agency that is unable to produce biological evidence that is
9required to be preserved under section 81.5A shall provide an
10affidavit describing the efforts taken to locate the biological
11evidence and affirm that the biological evidence could not be
12located.
   132.  If the court finds that biological evidence was not
14preserved in accordance with section 81.5A, the court may
15conduct a hearing and impose appropriate sanctions and order
16appropriate remedies.
17DIVISION II
18INCARCERATED WITNESS TESTIMONY
19   Sec. 5.  NEW SECTION.  804A.1  Definitions.
   20As used in this chapter, unless the context otherwise
21requires:
   221.  “Benefit” means any plea bargain, bail consideration,
23reduction or modification of sentence, or any other leniency,
24immunity, financial payment, reward, or amelioration of current
25or future conditions of a sentence that is requested, provided,
26or will be provided in the future in connection with, or in
27exchange for, the testimony of a incarcerated witness.
   282.  “Incarcerated witness” means a person who provides
29testimony, or who intends to provide testimony, during a
30criminal prosecution regarding statements made by a suspect or
31defendant while both the witness and the suspect or defendant
32were incarcerated, and who has requested, has been offered, or
33may in the future receive a benefit in connection with such
34testimony. “Incarcerated witness” does not include a person who
35is a confidential informant, codefendant, percipient witness,
-4-1accomplice, or coconspirator in the criminal prosecution.
2   Sec. 6.  NEW SECTION.  804A.2  Transparency in the use of
3incarcerated witness testimony.
   41.  In any criminal prosecution, not less than ninety days
5prior to a trial, the prosecuting attorney shall disclose its
6intent to introduce the testimony of an incarcerated witness
7regarding statements made by a suspect or defendant, while such
8witness and suspect or defendant were both incarcerated. The
9prosecuting attorney shall provide to the defense all of the
10following:
   11a.  The criminal history of the incarcerated witness,
12including any pending or dismissed criminal charges.
   13b.  The incarcerated witness’s cooperation agreement and any
14benefit that has been requested by, provided to, or will be
15provided in the future to the incarcerated witness.
   16c.  The contents of any statement allegedly given by the
17suspect or defendant to the incarcerated witness and the
18contents of any statement given by the incarcerated witness
19to law enforcement regarding the statements allegedly made by
20the suspect or defendant, including the time and place such
21statements were given.
   22d.  Any information regarding the incarcerated witness
23recanting testimony or statements, including the time and place
24of the recantation, the nature of the recantation, and the
25names of the people present at the recantation.
   26e.  Any information concerning other criminal cases in
27which the testimony of the incarcerated witness was introduced
28or was intended to be introduced by a prosecuting attorney
29regarding statements made by a suspect or defendant, including
30any cooperation agreement and any benefit that the incarcerated
31witness received in such case.
   322.  The court may permit the prosecuting attorney to
33comply with the provisions of this section after the time
34period provided in subsection 1 if the court finds that the
35incarcerated witness was not known or the information described
-5-1in subsection 1 could not be discovered or obtained by the
2prosecuting attorney exercising due diligence within the time
3period.
   43.  If the court finds that disclosing the information
5described in subsection 1 is likely to cause bodily harm to the
6incarcerated witness, the court may do any of the following:
   7a.  Order that such evidence be viewed only by the defense
8counsel and not by the defendant or others.
   9b.  Issue a protective order.
   104.  If the testimony of an incarcerated witness is admitted
11into evidence, the jury shall be instructed that such testimony
12was provided by an incarcerated witness and informed of any
13benefit that has been requested by, provided to, or will
14be provided in the future to the incarcerated witness in
15connection with providing such testimony.
16   Sec. 7.  NEW SECTION.  804A.3  Pretrial hearing —
17incarcerated witness testimony.
   181.  In a criminal prosecution in which the prosecuting
19attorney intends to introduce the testimony of an incarcerated
20witness, upon motion of the defendant, the court shall conduct
21a pretrial hearing to determine whether the incarcerated
22witness’s testimony exhibits reliability and is admissible
23based on the following factors:
   24a.  The extent to which the incarcerated witness’s testimony
25is confirmed by other evidence.
   26b.  The specificity of the testimony.
   27c.  The extent to which the testimony contains details that
28would be known only by the perpetrator of the offense.
   29d.  The extent to which the details of the testimony could be
30obtained from a source other than the suspect or defendant.
   31e.  The circumstances under which the incarcerated witness
32provided the information to the prosecuting attorney or a law
33enforcement officer, including whether the incarcerated witness
34was responding to leading questions.
   352.  If the prosecuting attorney fails to show by a
-6-1preponderance of the evidence that an incarcerated witness’s
2testimony is reliable, the court shall exclude the testimony at
3trial.
4   Sec. 8.  NEW SECTION.  804A.4  Tracking the use of
5incarcerated witness testimony.
   61.  A prosecuting attorney’s office shall maintain a central
7record containing all of the following:
   8a.  Any case in which testimony by an incarcerated
9witness was introduced or was intended to be introduced by a
10prosecuting attorney regarding statements made by a suspect or
11defendant and the substance of such testimony.
   12b.  Any benefit that was requested by, provided to, or
13will be provided in the future to an incarcerated witness in
14connection with testimony provided by the witness.
   152.  Each prosecuting attorney’s office shall forward the
16information described in subsection 1 to the division of
17criminal investigation of the department of public safety. The
18division shall maintain a statewide database containing the
19information forwarded pursuant to this section. The database
20shall be accessible only to prosecuting attorneys and shall
21otherwise remain confidential and not subject to open records
22requests.
   233.  If an incarcerated witness receives any benefit in
24connection with offering or providing testimony against a
25defendant, the prosecuting attorney shall notify any victim
26connected to the crime for which the witness was incarcerated.
27DIVISION III
28POSTCONVICTION ACCESS TO INVESTIGATIVE FILES IN CRIMINAL CASES
29   Sec. 9.  NEW SECTION.  701.13  Postconviction file access —
30discoverable materials.
   311.  For purposes of this section, “file” means all papers,
32documents, statements, photographs, or tangible objects in
33the possession, custody, or control of the state including
34any results or reports of physical or mental examinations and
35of scientific tests or experiments made in connection with a
-7-1particular criminal case.
   22.  Except as provided in subsection 3, a prosecuting
3attorney, to the extent allowed by law, shall make available to
4a defendant who has been convicted of a felony or an aggravated
5misdemeanor, any file in the possession of a law enforcement
6agency, county attorney, or the attorney general in this state
7involved in the investigation of any felony or aggravated
8misdemeanor committed by the defendant relating to the
9prosecution of the defendant that the defendant was entitled to
10at the time of the defendant’s trial.
   113.  In all criminal cases involving a conviction for a felony
12or an aggravated misdemeanor, all of the following shall apply:
   13a.  Except as provided in subsection 4, a defendant’s
14previous trial or appellate attorney shall securely retain a
15copy of the defendant’s file for seven years after completion
16or termination of representation of the defendant or until the
17completion of the defendant’s term of imprisonment, whichever
18occurs first. An electronic copy is sufficient only if an
19entire file can be digitally copied and preserved.
   20b.  A defendant’s file may be maintained by electronic,
21photographic, or other media provided that printed copies may
22be produced and the records are readily accessible to the
23defendant’s previous trial or appellate attorney.
   24c.  A defendant’s previous trial or appellate attorney shall
25make available to the defendant or the defendant’s current
26attorney the complete file relating to the prosecution of the
27defendant.
   284.  a.  A defendant’s previous trial or appellate attorney
29may destroy the defendant’s file prior to the end of the term
30of retention described in subsection 3 if the attorney receives
31written or electronically recorded consent from the defendant.
32The written or electronic record of the consent to destruction
33shall be maintained by the attorney for a period of at least
34six years after completion or termination of representation or
35the end of the defendant’s sentence, whichever occurs first.
-8-
   1b.  Items in the file of monetary value shall not be
2destroyed.
   3c.  A defendant’s previous trial or appellate attorney
4destroying a file pursuant to this subsection shall securely
5store items of intrinsic value or deliver such items to the
6state unclaimed property agency.
   7d.  The file shall be destroyed in a manner that preserves
8client confidentiality.
   95.  A defendant’s previous trial or appellate attorney shall
10not destroy a file pursuant to subsection 4 if the attorney
11knows or reasonably should know any of the following:
   12a.  A legal malpractice claim is pending related to the
13representation.
   14b.  A criminal or other governmental investigation is pending
15related to the representation.
   16c.  A complaint is pending before the Iowa attorney
17disciplinary board related to the representation.
   18d.  Other litigation is pending related to the
19representation.
   206.  If a prosecuting attorney has a reasonable belief
21that allowing inspection of any portion of the defendant’s
22file by a defendant’s current attorney would place a person
23in imminent danger, the prosecuting attorney may submit any
24portion of the file so identified for inspection by the court.
25If upon examination of the file the court finds that the
26submitted portion of the file would not assist the defendant
27in investigating, preparing, or presenting a motion for any
28appropriate relief, the court may in its discretion allow the
29prosecutor to withhold that portion of the file.
   307.  A defendant, the defendant’s current attorney,
31investigator, expert, consulting legal counsel, or other agent
32of the attorney representing the defendant shall not disclose
33to a third party any file received from the prosecuting
34attorney under this section that is prohibited from public
35disclosure unless any of the following apply:
-9-
   1a.  A court orders the disclosure of the file upon a showing
2of good cause after notice and a hearing to consider the
3security and privacy interests of a victim or witness.
   4b.  The file has already been publicly disclosed.
   58.  The actual costs involved in the examination or copying
6of the disclosed file pursuant to this section shall be
7reimbursed by the defendant.
   89.  This section does not require the retention of any file
9not otherwise required by law or court order.
10EXPLANATION
11The inclusion of this explanation does not constitute agreement with
12the explanation’s substance by the members of the general assembly.
   13This bill relates to the preservation of biological evidence
14collected in relation to a criminal investigation, testimony
15by an incarcerated witness, and postconviction access to
16investigative files in a criminal case.
   17DIVISION I — PRESERVATION OF BIOLOGICAL EVIDENCE IN
18CRIMINAL INVESTIGATIONS. The bill provides that except as
19provided in Code section 709.10 (gathering and preservation of
20sexual abuse evidence collection kits), all biological evidence
21collected involving a felony or aggravated misdemeanor in an
22agency’s possession or control shall be preserved and stored by
23the agency as follows: for cases resulting in a conviction or
24a deferred judgment, the biological evidence shall be retained
25for the latter of 20 years from the date the defendant’s
26conviction becomes final or the period of time that the
27defendant or a codefendant remains in custody; and for cases
28not resulting in a conviction, the biological evidence shall
29be preserved and stored until the expiration of the statute of
30limitations for the alleged offense. The agency shall retain
31biological evidence in an amount and a manner sufficient to
32develop a DNA profile from the biological evidence and in
33a manner reasonably calculated to prevent contamination or
34degradation of any biological evidence that might be present,
35subject to a continuous chain of custody, and securely retained
-10-1with sufficient official documentation to locate the evidence.
   2The bill provides that upon written request by a defendant,
3the agency shall prepare an inventory of biological evidence
4relevant to the defendant’s case that is in the custody of the
5agency. If biological evidence was destroyed in accordance
6with the bill through a court order or other written directive,
7the agency shall provide the defendant with a copy of the
8documentation showing adherence with the new Code section, the
9court order, or the written directive.
   10The bill provides that the agency shall not be required to
11preserve physical evidence on which biological evidence is
12found that is of such a size, bulk, or physical character as to
13render retention impracticable. A portion of the biological
14evidence likely to contain biological evidence shall be removed
15in a quantity sufficient to permit future DNA testing before
16returning or disposing of the remainder of the biological
17evidence. Biological evidence shall not be destroyed when
18a codefendant, convicted of the same crime, remains in
19custody, and the agency shall preserve the evidence until all
20codefendants are released from custody.
   21The bill provides that the agency may destroy or dispose of
22biological evidence before the period required expires if no
23other provision of federal or state law requires the agency
24to preserve the biological evidence and the agency sends a
25notice of intent to dispose of biological evidence by certified
26mail, return receipt requested, or by a delivery service that
27provides proof of delivery to any victim, any individual who
28remains in custody based on a criminal conviction related
29to the biological evidence, the private attorney or public
30defender of record for each individual related to the
31biological evidence, and, if applicable, the prosecuting agency
32responsible for the prosecution of each individual relating to
33the biological evidence and the attorney general. A notified
34person may file an application for DNA profiling or submit a
35written request to the agency that the biological evidence be
-11-1retained.
   2The bill provides that an agency that receives a request
3to produce biological evidence that the agency is unable to
4produce shall provide an affidavit describing the efforts
5taken to locate the biological evidence and affirm that
6the biological evidence could not be located. If the court
7finds that biological evidence was not preserved as required
8under the bill, the court may conduct a hearing and impose
9appropriate sanctions and order appropriate remedies.
   10The bill defines “agency”, “biological evidence”, and
11“custody”.
   12DIVISION II — INCARCERATED WITNESS TESTIMONY. The
13bill provides that in any criminal prosecution, not less
14than 90 days prior to a trial, the prosecuting attorney
15shall disclose its intent to introduce the testimony of an
16incarcerated witness regarding statements made by a suspect or
17defendant, while such witness and suspect or defendant were
18both incarcerated. The prosecuting attorney shall provide to
19the defense all of the following: the criminal history of
20the incarcerated witness, including any pending or dismissed
21criminal charges; the incarcerated witness’s cooperation
22agreement and any benefit that has been requested by, provided
23to, or will be provided in the future to the incarcerated
24witness; any statement allegedly given by the suspect or
25defendant to the incarcerated witness and any statement given
26by the incarcerated witness to law enforcement regarding the
27statements allegedly made by the suspect or defendant; any
28information regarding the incarcerated witness recanting
29testimony or statements; and any information concerning other
30criminal cases in which the testimony of the incarcerated
31witness was introduced or was intended to be introduced by a
32prosecuting attorney.
   33The bill provides that if the court finds that disclosing
34the information described in the bill is likely to cause bodily
35harm to the incarcerated witness, the court may order that such
-12-1evidence be viewed only by the defense counsel or may issue a
2protective order. If the testimony of an incarcerated witness
3is admitted into evidence, the jury shall be instructed that
4such testimony was provided by an incarcerated witness and
5informed of any benefit that has been requested by, provided
6to, or will be provided in the future to the incarcerated
7witness in connection with providing such testimony.
   8The bill provides that in a criminal prosecution in which
9the prosecuting attorney intends to introduce the testimony
10of an incarcerated witness, upon motion of the defendant, the
11court shall conduct a pretrial hearing to determine whether
12the incarcerated witness’s testimony exhibits reliability and
13is admissible based on the following factors: the extent to
14which the incarcerated witness’s testimony is confirmed by
15other evidence; the specificity of the testimony; the extent
16to which the testimony contains details that would be known
17only by the perpetrator of the offense; the extent to which the
18details of the testimony could be obtained from a source other
19than the suspect or defendant; and the circumstances under
20which the incarcerated witness provided the information to the
21prosecuting attorney or a law enforcement officer. If the
22prosecuting attorney fails to show by a preponderance of the
23evidence that an incarcerated witness’s testimony is reliable,
24the court shall exclude the testimony at trial.
   25The bill requires that each prosecuting attorney’s office
26shall maintain a central record containing any case in which
27testimony by an incarcerated witness was introduced or was
28intended to be introduced regarding statements made by a
29suspect or defendant and the substance of such testimony, and
30any benefit that was requested by, provided to, or will be
31provided in the future to an incarcerated witness in connection
32with testimony provided by the witness. A prosecuting
33attorney’s office shall forward the information to the division
34of criminal investigation of the department of public safety.
35The division shall maintain a statewide database containing
-13-1the information forwarded. The database shall be accessible
2only to prosecuting attorneys and shall otherwise remain
3confidential and not subject to open records requests. If
4an incarcerated witness receives any benefit in connection
5with offering or providing testimony against a defendant, the
6prosecuting attorney shall notify any victim connected to the
7crime for which the witness was incarcerated.
   8The bill defines “benefit” and “incarcerated witness”.
   9DIVISION III — POSTCONVICTION ACCESS TO INVESTIGATIVE FILES
10IN A CRIMINAL CASE. The bill provides that the prosecuting
11attorney, to the extent allowed by law, shall make available
12to a defendant, who has been convicted of a felony or an
13aggravated misdemeanor, the file in the possession of any law
14enforcement agency, county attorney, or the attorney general
15in this state involved in the investigation of the public
16offenses committed by the defendant or the prosecution of the
17defendant which the defendant was entitled to at the time of
18the defendant’s trial. If the prosecuting attorney has a
19reasonable belief that allowing inspection of any portion of
20the file by the attorney for the defendant would place a person
21in imminent danger, the prosecuting attorney may submit any
22portion of the file identified for inspection by the court. If
23upon examination the court finds that the submitted portion
24of the file would not assist the defendant in investigating,
25preparing, or presenting a motion for appropriate relief, the
26court in its discretion may allow the prosecutor to withhold
27that portion of the file.
   28The bill provides that in all criminal matters involving
29a conviction for a felony or aggravated misdemeanor, a
30defendant’s previous trial or appellate attorney shall securely
31retain a copy of the defendant’s file for seven years after
32completion or termination of representation of the defendant or
33until the completion of the defendant’s term of imprisonment,
34whichever occurs first. An electronic copy is sufficient only
35if an entire file can be digitally copied and preserved. A
-14-1defendant’s file, except for items of intrinsic value, may be
2maintained by electronic, photographic, or other media provided
3that printed copies may be produced and the records are readily
4accessible to the attorney. A defendant’s previous trial or
5appellate attorney shall make available to the defendant or the
6defendant’s current attorney the complete file relating to the
7prosecution of the defendant.
   8The bill provides that the defendant’s previous trial or
9appellate attorney may destroy the defendant’s file prior to
10the end of the required term of retention if the attorney
11receives written or electronically recorded consent from the
12defendant. The written or electronic record of the consent
13to destruction shall be maintained by the attorney for a
14period of at least six years after completion or termination
15of representation or the end of the defendant’s sentence,
16whichever occurs first. Items in the file with intrinsic
17value shall never be destroyed and shall be securely stored
18or delivered to the state unclaimed property agency. The
19file shall be destroyed in a manner that preserves client
20confidentiality.
   21The bill provides that an attorney shall not destroy a
22file prior to the end of the required term of retention if
23the attorney knows or reasonably should know that a legal
24malpractice claim is pending related to the representation; a
25criminal or other governmental investigation is pending related
26to the representation; a complaint is pending before the Iowa
27attorney disciplinary board related to the representation; or
28other litigation is pending related to the representation.
   29The bill provides that the defendant, the defendant’s
30attorney, investigator, expert, consulting legal counsel, or
31other agent of the attorney representing the defendant shall
32not disclose to a third party any file received from the
33prosecuting attorney that is prohibited from public disclosure
34unless a court orders the disclosure of the materials of such
35file upon a showing of good cause after notice and a hearing
-15-1to consider the security and privacy interests of a victim or
2witness, or the file has already been publicly disclosed.
   3The actual costs involved in the examination or copying of
4any file disclosed shall be reimbursed by the defendant. The
5bill does not require the retention of any file not otherwise
6required by law or court order.
   7The bill defines “file” as papers, documents, statements,
8photographs, or tangible objects in the possession, custody,
9or control of the state including any results or reports of
10physical or mental examinations and of scientific tests or
11experiments made in connection with a particular case.
-16-
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