House File 657 - ReprintedA 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.
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 identifiable biological material that is cataloged
19separately or is present on other evidence including but not
20limited to clothing, ligatures, bedding or other household
21materials, drinking cups, or cigarettes.
22   NEW SUBSECTION.  1B.  “Custody” means a person who has
23been arrested, is currently incarcerated, or has been civilly
25   Sec. 2.  NEW SECTION.  81.5A  Preservation of biological
   271.  Except as provided in section 81.58 concerning the
28destruction of biological evidence and section 709.10
29concerning the gathering and preservation of sexual abuse
30evidence collection kits, all biological evidence collected
31involving a class “A” or class “B” felony in an agency’s
32possession or control shall be preserved and stored by the
33agency as follows:
   34a.  For cases resulting in a conviction or a deferred
35judgment, biological evidence shall be retained for the latter
-1-1of either of the following:
   2(1)  Twenty years from the date the defendant’s conviction
3becomes final.
   4(2)  The period of time that the defendant or a codefendant
5remains in custody.
   6b.  Except as provided in section 81.9, for cases not
7resulting in a conviction, biological evidence shall be
8preserved and stored until the expiration of the statute of
9limitations for the alleged offense.
   10c.  A criminal or juvenile justice agency, as defined in
11section 692.1, shall retain biological evidence as provided in
12section 81.13, subsection 2.
   132.  The agency shall retain biological evidence in an
14amount and a manner sufficient to develop a DNA profile from
15the biological evidence contained in or include on physical
16evidence and in a manner reasonably calculated to prevent
17contamination or degradation of any biological evidence that
18might be present, subject to a continuous chain of custody,
19and securely retained with sufficient official documentation
20to locate the evidence.
   213.  All records documenting the possession, control,
22storage, and destruction of biological evidence related to a
23criminal investigation or prosecution of an offense referenced
24in this section shall be retained.
   254.  Upon written request by a defendant, the agency shall
26prepare an inventory of biological evidence relevant to the
27defendant’s case that is in the custody of the agency.
   285.  If evidence was destroyed in accordance with section
2981.5B through a court order or other written directive,
30the agency shall provide the defendant with a copy of the
31documentation showing adherence with this section, the court
32order, or the written directive.
   336.  The agency shall not be required to preserve physical
34evidence on which biological evidence is found that is of such
35a size, bulk, or physical character as to render retention
-2-1impracticable. When such retention is impracticable, a portion
2of the physical evidence likely to contain biological evidence
3shall be removed in a quantity sufficient to permit future DNA
4testing before returning or disposing of the remainder of the
5physical evidence.
   67.  Biological evidence shall not be destroyed when a
7codefendant, convicted of the same crime, remains in custody,
8and the agency shall preserve the biological evidence until all
9codefendants are released from custody.
   108.  To comply with the preservation requirements described
11in this section, an agency may do the following:
   12a.  Retain the biological evidence.
   13b.  If a continuous chain of custody can be maintained,
14transfer the biological evidence to the custody of another
15agency which will maintain the evidence.
   169.  This section shall not be construed to require the
17state or any other entity to pay for or require the testing of
18biological evidence not otherwise required by another provision
19of federal or state law.
20   Sec. 3.  NEW SECTION.  81.5B  Destruction of biological
   22Except as provided in section 709.10 concerning the
23gathering and preservation of sexual abuse evidence collection
24kits, an agency may destroy or dispose of DNA samples before
25the period required in section 81.5A expires if all of the
26following apply:
   271.  No other provision of federal or state law requires the
28agency to preserve the biological evidence.
   292.  a.  The agency sends a notice of intent to dispose
30of biological evidence by certified mail, return receipt
31requested, or by a delivery service that provides proof of
32delivery, to the following:
   33(1)  Any victim as defined in section 915.10.
   34(2)  Any individual who remains in custody based on a
35criminal conviction related to the biological evidence.
   1(3)  The private attorney or public defender of record for
2each individual related to the biological evidence.
   3(4)  If applicable, the prosecuting agency responsible for
4the prosecution of each individual relating to the biological
   6(5)  If applicable, the office of the attorney general.
   7b.  The notification of intent to dispose of biological
8evidence shall include that the evidence may be destroyed one
9hundred eighty days after the date on which the agency received
10proof of delivery of the notice unless the notified party does
11either of the following:
   12(1)  Files an application for DNA profiling under section
   14(2)  Submits a written request to the agency that the
15biological evidence be retained.
16   Sec. 4.  NEW SECTION.  81.5C  Noncompliance with preservation
   181.  Following a request to produce biological evidence, an
19agency that is unable to produce biological evidence that is
20required to be preserved under section 81.5A shall provide an
21affidavit describing the efforts taken to locate the biological
22evidence and affirm that the biological evidence could not be
   242.  If the court finds that biological evidence was willfully
25not preserved in accordance with section 81.5A, the court may
26conduct a hearing and order appropriate remedies.
29   Sec. 5.  NEW SECTION.  804A.1  Definitions.
   30As used in this chapter, unless the context otherwise
   321.  “Benefit” means any plea bargain, bail consideration,
33reduction or modification of sentence, or any other leniency,
34immunity, financial payment, reward, or amelioration of current
35or future conditions of a sentence that is requested, provided,
-4-1or will be provided in the future in connection with, or in
2exchange for, the testimony of a incarcerated witness.
   32.  “Incarcerated witness” means a person who provides
4testimony, or who intends to provide testimony, during a
5criminal prosecution regarding statements made by a suspect or
6defendant while both the witness and the suspect or defendant
7were incarcerated, and who has requested, has been offered, or
8may in the future receive a benefit in connection with such
9testimony. “Incarcerated witness” does not include a person who
10is a confidential informant, codefendant, percipient witness,
11accomplice, or coconspirator in the criminal prosecution.
12   Sec. 6.  NEW SECTION.  804A.2  Transparency in the use of
13incarcerated witness testimony.
   141.  In any criminal prosecution, not less than ninety days
15prior to a trial, the prosecuting attorney shall disclose its
16intent to introduce the testimony of an incarcerated witness
17regarding statements made by a suspect or defendant, while such
18witness and suspect or defendant were both incarcerated. The
19prosecuting attorney shall provide to the defense all of the
   21a.  The criminal history of the incarcerated witness,
22including any pending or dismissed criminal charges.
   23b.  The incarcerated witness’s cooperation agreement and any
24benefit that has been requested by, provided to, or will be
25provided in the future to the incarcerated witness.
   26c.  The contents of any statement allegedly given by the
27suspect or defendant to the incarcerated witness and the
28contents of any statement given by the incarcerated witness
29to law enforcement regarding the statements allegedly made by
30the suspect or defendant, including the time and place such
31statements were given.
   32d.  Any information regarding the incarcerated witness
33recanting testimony or statements, including the time and place
34of the recantation, the nature of the recantation, and the
35names of the people present at the recantation.
   1e.  Any information concerning other criminal cases in which
2the testimony of the incarcerated witness was introduced by a
3prosecuting attorney regarding statements made by a suspect or
4defendant, including any cooperation agreement and any benefit
5that the incarcerated witness received in such case.
   62.  The court may permit the prosecuting attorney to
7comply with the provisions of this section after the time
8period provided in subsection 1 if the court finds that the
9incarcerated witness was not known or the information described
10in subsection 1 could not be discovered or obtained by the
11prosecuting attorney exercising due diligence within the time
   133.  If the court finds that disclosing the information
14described in subsection 1 is likely to cause bodily harm to the
15incarcerated witness or family members or associates of the
16incarcerated witness, the court may do any of the following:
   17a.  Order that such evidence be viewed only by the defense
18counsel and not by the defendant or others.
   19b.  Issue a protective order.
   204.  If the prosecuting attorney objects to the disclosure
21of any information described in this section, the prosecuting
22attorney may submit the information to the court for review.
23Upon review of the information, the court may permit the
24prosecuting attorney to withhold any information the court
25finds is not required to be disclosed in accordance with the
26Iowa rules of evidence or the Constitution of the United
28   Sec. 7.  NEW SECTION.  804A.3  Pretrial hearing —
29incarcerated witness testimony.
   301.  In a criminal prosecution in which the prosecuting
31attorney intends to introduce the testimony of an incarcerated
32witness, upon motion of the defendant, the court shall conduct
33a pretrial hearing to determine whether the incarcerated
34witness’s testimony exhibits reliability and is admissible
35based on the following factors:
   1a.  The extent to which the incarcerated witness’s testimony
2is confirmed by other evidence.
   3b.  The specificity of the testimony.
   4c.  The extent to which the testimony contains details that
5would be known only by the perpetrator of the offense.
   6d.  The extent to which the details of the testimony could be
7obtained from a source other than the suspect or defendant.
   8e.  The circumstances under which the incarcerated witness
9provided the information to the prosecuting attorney or a law
10enforcement officer, including whether the incarcerated witness
11was responding to leading questions.
   122.  If the prosecuting attorney fails to show by a
13preponderance of the evidence that an incarcerated witness’s
14testimony is reliable, the court shall exclude the testimony at
16   Sec. 8.  NEW SECTION.  804A.4  Tracking the use of
17incarcerated witness testimony.
   181.  A prosecuting attorney’s office shall maintain a central
19record containing all of the following:
   20a.  Any case known to the prosecuting attorney in which
21testimony by an incarcerated witness was introduced or was
22intended to be introduced by a prosecuting attorney regarding
23statements made by a suspect or defendant and the substance of
24such testimony.
   25b.  Any benefit known to the prosecuting attorney that was
26requested by, provided to, or will be provided in the future to
27an incarcerated witness in connection with testimony provided
28by the witness.
   292.  Each prosecuting attorney’s office shall forward the
30information described in subsection 1 to the division of
31criminal investigation of the department of public safety. The
32division shall maintain a statewide database containing the
33information forwarded pursuant to this section. The database
34and all central records described in subsection 1 shall be
35accessible only to prosecuting attorneys and shall otherwise
-7-1remain confidential and not subject to open records requests.
   23.  If an incarcerated witness receives any benefit in
3connection with offering or providing testimony against a
4defendant, the prosecuting attorney shall notify any victim
5connected to the crime for which the witness was incarcerated.
8   Sec. 9.  NEW SECTION.  701.13  Postconviction file access —
9discoverable materials.
   101.  For purposes of this section, “file” means all papers,
11documents, statements, photographs, or tangible objects in
12the possession, custody, or control of the state including
13any results or reports of physical or mental examinations and
14of scientific tests or experiments made in connection with a
15particular criminal case.
   162.  Except as provided in subsection 3, a prosecuting
17attorney shall make available to a defendant who has been
18convicted of a felony or an aggravated misdemeanor, any
19file in the possession of a law enforcement agency, county
20attorney, or the attorney general in this state involved in
21the investigation of any felony or aggravated misdemeanor
22committed by the defendant relating to the prosecution of the
23defendant that the defendant was entitled to at the time of the
24defendant’s trial. Nothing in this subsection shall require
25the disclosure of the content of an attorney work product.
   263.  In all criminal cases involving a conviction for a felony
27or an aggravated misdemeanor, all of the following shall apply:
   28a.  Except as provided in subsection 4, a defendant’s
29previous trial or appellate attorney shall securely retain a
30copy of the defendant’s file for seven years after completion
31or termination of representation of the defendant or until the
32completion of the defendant’s term of imprisonment, whichever
33occurs first. An electronic copy is sufficient only if an
34entire file can be digitally copied and preserved.
   35b.  A defendant’s file may be maintained by electronic,
-8-1photographic, or other media provided that printed copies may
2be produced and the records are readily accessible to the
3defendant’s previous trial or appellate attorney.
   4c.  A defendant’s previous trial or appellate attorney shall
5make available to the defendant or the defendant’s current
6attorney the complete file relating to the prosecution of the
   84.  a.  A defendant’s previous trial or appellate attorney
9may destroy the defendant’s file prior to the end of the term
10of retention described in subsection 3 if the attorney receives
11written or electronically recorded consent from the defendant.
12The written or electronic record of the consent to destruction
13shall be maintained by the attorney for a period of at least
14six years after completion or termination of representation or
15the end of the defendant’s sentence, whichever occurs first.
   16b.  Items in the file of monetary value shall not be
   18c.  A defendant’s previous trial or appellate attorney
19destroying a file pursuant to this subsection shall securely
20store items of monetary value or deliver such items to the
21state unclaimed property agency.
   22d.  The file shall be destroyed in a manner that preserves
23client confidentiality.
   245.  A defendant’s previous trial or appellate attorney shall
25not destroy a file pursuant to subsection 4 if the attorney
26knows or reasonably should know any of the following:
   27a.  A legal malpractice claim is pending related to the
   29b.  A criminal or other governmental investigation is pending
30related to the representation.
   31c.  A complaint is pending before the Iowa attorney
32disciplinary board related to the representation.
   33d.  Other litigation is pending related to the
   356.  If a prosecuting attorney has a reasonable belief that
-9-1allowing inspection of any portion of the defendant’s file by a
2defendant’s current attorney would place a person in imminent
3danger, the prosecuting attorney may submit any portion of
4the file so identified for inspection by the court by filing
5a motion for a protective order with the court of conviction.
6If upon examination of the file the court finds that the
7submitted portion of the file would not assist the defendant
8in investigating, preparing, or presenting a motion for any
9appropriate relief, the court may in its discretion allow the
10prosecuting attorney to withhold that portion of the file.
   117.  A defendant, the defendant’s current attorney,
12investigator, expert, consulting legal counsel, or other agent
13of the attorney representing the defendant shall not disclose
14to a third party any file received from the prosecuting
15attorney under this section that is prohibited from public
16disclosure unless any of the following apply:
   17a.  A court orders the disclosure of the file upon a showing
18of good cause after notice and a hearing to consider the
19security and privacy interests of a victim or witness.
   20b.  The file has already been publicly disclosed.
   218.  The actual costs involved in the examination or copying
22of the disclosed file pursuant to this section shall be
23reimbursed by the defendant.
   249.  This section does not require the retention of any file
25not otherwise required by law or court order.