Bill Text: IA HF657 | 2023-2024 | 90th General Assembly | Amended
Bill Title: A bill for an act relating to the preservation of biological evidence collected in relation to a criminal investigation, testimony by an incarcerated witness, and postconviction access to investigative files in a criminal case. (Formerly HF 426.)
Spectrum: Committee Bill
Status: (Engrossed - Dead) 2023-03-28 - Fiscal note. [HF657 Detail]
Download: Iowa-2023-HF657-Amended.html
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
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657
(5)
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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
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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
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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.
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(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,
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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.
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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:
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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
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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,
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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
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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.
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