Relating to postconviction access to a defendant’s file in the possession of a law enforcement agency, county attorney, the attorney general in this state, and the defendant’s previous trial or appellate attorney

House File 657 relates to the preservation of biological evidence collected in relation to criminal investigations, testimony by an incarcerated witness, and postconviction access to investigative files in a criminal case.

Division I — Preservation of Biological Evidence in Criminal Investigations

Description and Background

Division I provides that all biological evidence collected involving a Class A or Class B felony in an agency’s possession or control must be stored by the agency as follows:

• For cases resulting in a conviction or deferred judgment, biological evidence must be retained for the latter of 20 years from the date the defendant’s conviction becomes final, or the period of time that the defendant or codefendant remains in custody.
• For cases not resulting in a conviction, biological evidence must be preserved and stored until the expiration of the statute of limitations for the offense.
• Biological evidence must be retained in an amount and manner sufficient to develop a DNA profile, in a manner reasonably calculated to prevent contamination or degradation of any biological evidence, and securely with sufficient official documentation to locate the evidence.
• All records documenting the possession, control, storage, or destruction of biological evidence related to a criminal investigation or prosecution of an offense must be retained. Division I provides that upon written request by a defendant, an agency must prepare an inventory of biological evidence relevant to the defendant’s case. If evidence was destroyed through a court order or other written directive, the agency must provide the defendant with a copy of documentation showing adherence to Division I’s requirements, the court order, or the written directive.

Division I includes provisions on the retention of physical evidence that is impracticable to preserve due to size, bulk, or physical character. Division I provides that biological evidence must not be destroyed when a codefendant who was convicted of the same crime remains in custody, and an agency must preserve the biological evidence until all codefendants are released from custody.

Division I provides that to comply with the preservation requirements, an agency may retain the biological evidence or, if a continuous chain of custody can be maintained, transfer the biological evidence to the custody of another agency that will maintain the evidence. Division I allows agencies to destroy or dispose of DNA samples before the period required under certain circumstances.

Division I provides that if upon a request to produce biological evidence an agency is unable to produce biological evidence, the agency must provide an affidavit describing the efforts taken to locate the biological evidence and affirm it could not be located. If the court finds that biological evidence was willfully not preserved in accordance with Division I, the court may conduct a hearing and order appropriate remedies.

Under the Rules of Criminal Procedure, the Judicial Branch currently preserves evidence for 60 days after the expiration of a sentence.

Assumptions

• Division I will increase the length of time some evidence will need to be preserved by the courts, and the amount of evidence in the courts’ possession at one time will increase.
• The courts may need to acquire a physical location for evidence preservation, depending on the amount of additional evidence and storage requirements for the evidence.
• The number of additional court hearings conducted under Division I cannot be estimated.

Fiscal Impact

The Judicial Branch reports that it may need to acquire a dedicated storage space to comply with the extended preservation requirements under Division I. The cost of this storage space is unknown. Additionally, the Judicial Branch may incur increased costs for conducting hearings under Division I, but the extent of this increase cannot be estimated. The Judicial Branch is funded through the General Fund.

Division II — Incarcerated Witness Testimony

Description and Background

Division II relates to incarcerated witness testimony and provides for the following:

• At least 90 days prior to a criminal trial, the prosecuting attorney must disclose its intent to introduce the testimony of an incarcerated witness regarding statements made by a suspect or defendant while such witness and suspect or defendant were both incarcerated.
• The prosecuting attorney must provide specific types of information about the incarcerated witness and the testimony to the defense.
• If the court finds that disclosing the information about the incarcerated witness or the testimony is likely to cause bodily harm to the incarcerated witness or family members or associates of the incarcerated witness, the court may order that such evidence be viewed only by the defense counsel and not by the defendant or others or may issue a protective order.
• If the prosecuting attorney objects to the disclosure of any information related to incarcerated witness testimony, the prosecuting attorney may submit the information to the court for review. The court may permit the withholding of any information the court finds is not required to be disclosed in accordance with the Iowa Rules of Evidence or the United States Constitution.
• Upon motion of a defendant, in a criminal prosecution in which the prosecuting attorney intends to introduce the testimony of an incarcerated witness, the court must conduct a pretrial hearing to determine whether the testimony exhibits reliability and is admissible. If the prosecuting attorney fails to show by a preponderance of the evidence that the testimony is reliable, the court must exclude the testimony at trial.
• A prosecuting attorney’s office must maintain a central record containing information related to cases in which testimony by an incarcerated witness was introduced or intended to be introduced by a prosecuting attorney regarding statements made by a suspect or defendant and the substance of such testimony, and any benefit that was requested by, was provided to, or will be provided to an incarcerated witness in connection with the testimony.
• Each prosecuting attorney’s office must forward this information to the Division of Criminal Investigation (DCI) of the Department of Public Safety (DPS).
• The DCI must maintain a statewide database containing this information, which must only be accessible to prosecuting attorneys and is otherwise confidential and not subject to open records requests.
• If an incarcerated witness receives any benefit in connection with offering or providing testimony against a defendant, the prosecuting attorney must notify any victim connected to the crime for which the witness was incarcerated.

The DCI provides investigative support and expertise to law enforcement agencies across the State. The DCI includes the Criminalistics Laboratory; the Field Operations Bureau, which consists of the Major Crime Unit, the Sex Offender Registry, and the Cyber Crime Unit; the Special Enforcement Operations Bureau, which conducts criminal investigators and provides regulatory enforcement at Iowa’s licensed casinos; and the Support Operations Bureau, which provides administrative support and collects, maintains, and provides information vital to law enforcement agencies and the general public.

Assumptions and Fiscal Impact

The DPS will incur a one-time cost of approximately $50,000 in FY 2024 to create the database. The DPS is primarily funded by the General Fund.

Additionally, the Judicial Branch may incur increased costs due to requests for the inspection of records of incarcerated witness testimony and for pretrial hearings, but the number of such requests and pretrial hearings cannot be estimated, and the fiscal impact is unknown. Division III — Postconviction Access to Investigative Files in Criminal Cases

Description and Background

Division III provides that a prosecuting attorney must make available to a defendant who has been convicted of a felony or an aggravated misdemeanor, any file in possession of the law enforcement agency, county attorney, or Attorney General involved in the investigation related to the prosecution of the defendant to which the defendant was entitled to at the time of the trial. Division III also provides that in all criminal cases involving a conviction for a felony or aggravated misdemeanor, a defendant’s attorney must retain a copy of the defendant’s file for seven years after the completion or termination of representation of the defendant or until the completion of the defendant’s imprisonment, whichever occurs first. The attorney must make the complete file available to the defendant or the defendant’s current attorney. The attorney may destroy the file prior to the end of the term of retention under certain circumstances. If a prosecuting attorney has a reasonable belief that allowing inspection of any portion of the defendant’s file by the defendant’s attorney would place a person in imminent danger, the prosecuting attorney may submit the portion of the file for inspection by the court by filing a motion for a protective order with the court of conviction. Upon examination of the file, the court, at its discretion, may allow the prosecuting attorney to withhold that portion of the file. A defendant, the defendant’s attorney, an investigator, an expert, consulting legal counsel, or other agent of the attorney representing the defendant must not disclose to a third party any file received from the prosecuting attorney that is prohibited from public disclosure unless a court orders the disclosure of the file upon a showing of good cause after notice and a hearing to consider the security and privacy interests of a victim or witness, or the file has already been publicly disclosed.

Division III provides that the actual costs involved in the examination or copying of the disclosed file are required to be reimbursed by the defendant.

Assumptions

• There are approximately 28,000 convictions of aggravated misdemeanors and felonies each year.
• It is unknown how many convictions will be followed by a defendant’s request for files and how often such requests will result in a request by a prosecuting attorney for the inspection of files by the court.
• Each request by a prosecuting attorney for inspection will require a judge to review the files, at the cost of $101 per hour.

Fiscal Impact

The Judicial Branch will incur increased costs under Division III for the inspection of files by judges, but the number of requests and amount of time spent on these requests is unknown. The fiscal impact to the Judicial Branch cannot be estimated. The Judicial Branch is funded through the General Fund.

Sources

• Department of Public Safety
• Judicial Branch