House File 501 - Introduced
HOUSE FILE 501
BY JONES
A BILL FOR
1 An Act relating to the preservation of biological evidence
2 collected in relation to a criminal investigation, testimony
3 by an incarcerated witness, and postconviction access to
4 investigative files in a criminal case.
5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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1 DIVISION I
2 PRESERVATION OF BIOLOGICAL EVIDENCE IN CRIMINAL INVESTIGATIONS
3 Section 1. Section 81.1, Code 2023, is amended by adding the
4 following new subsections:
5 NEW SUBSECTION. 01. “Agency” means any governmental or
6 public entity within the state and its officials or employees
7 including but not limited to law enforcement agencies,
8 county attorney offices, courts, public hospitals, the state
9 criminalistics laboratory or similar qualified laboratory, and
10 any other entity or individual charged with the collection,
11 storage, or retrieval of biological evidence.
12 NEW SUBSECTION. 1A. “Biological evidence” means
13 any item that contains blood, semen, hair, saliva, skin
14 tissue, fingernail scrapings, bone, bodily fluids, or other
15 identifiable biological material that was collected as part
16 of a criminal investigation or may reasonably be used to
17 incriminate or exculpate any person for the offense. This
18 applies to material that is cataloged separately or is present
19 on other evidence including but not limited to clothing,
20 ligatures, bedding or other household materials, drinking cups,
21 or cigarettes.
22 NEW SUBSECTION. 1B. “Custody” means a person who has
23 been arrested, is currently incarcerated, has been civilly
24 committed, is on parole or probation, or who is subject to sex
25 offender registration requirements.
26 Sec. 2. NEW SECTION. 81.5A Preservation of biological
27 evidence.
28 1. Except as provided in section 709.10 concerning the
29 gathering and preservation of sexual abuse evidence collection
30 kits, all biological evidence collected involving a felony or
31 aggravated misdemeanor in an agency’s possession or control
32 shall be preserved and stored by the 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 of either of the following:
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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 amount
13 and a manner sufficient to develop a DNA profile from the
14 biological material contained in or included on the evidence
15 and in a manner reasonably calculated to prevent contamination
16 or degradation of any biological evidence that might be
17 present, subject to a continuous chain of custody, and securely
18 retained with sufficient official documentation to locate the
19 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 impracticable. When such retention is impracticable, a portion
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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
6 a codefendant, convicted of the same crime, remains in
7 custody, and the agency shall preserve the evidence until all
8 codefendants are released from custody.
9 Sec. 3. NEW SECTION. 81.5B Destruction of biological
10 evidence.
11 Except as provided in section 709.10 concerning the
12 gathering and preservation of sexual abuse evidence collection
13 kits, an agency may destroy or dispose of DNA samples before
14 the period required in section 81.5A expires if all of the
15 following apply:
16 1. No other provision of federal or state law requires the
17 agency to preserve the biological evidence.
18 2. a. The agency sends a notice of intent to dispose
19 of biological evidence by certified mail, return receipt
20 requested, or by a delivery service that provides proof of
21 delivery, to the following:
22 (1) Any victim as defined in section 915.10.
23 (2) Any individual who remains in custody based on a
24 criminal conviction related to the biological evidence.
25 (3) The private attorney or public defender of record for
26 each individual related to the evidence.
27 (4) If applicable, the prosecuting agency responsible for
28 the prosecution of each individual relating to the biological
29 evidence.
30 (5) If applicable, the office of the attorney general.
31 b. The notification of intent to dispose of biological
32 evidence shall include that the evidence may be destroyed one
33 hundred eighty days after the date on which the agency received
34 proof of delivery of the notice unless the notified party does
35 either of the following:
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1 (1) Files an application for DNA profiling under section
2 81.11.
3 (2) Submits a written request to the agency that the
4 biological evidence be retained.
5 Sec. 4. NEW SECTION. 81.5C Noncompliance with preservation
6 requirements.
7 1. Following a request to produce biological evidence, an
8 agency that is unable to produce biological evidence that is
9 required to be preserved under section 81.5A shall provide an
10 affidavit describing the efforts taken to locate the biological
11 evidence and affirm that the biological evidence could not be
12 located.
13 2. If the court finds that biological evidence was not
14 preserved in accordance with section 81.5A, the court may
15 conduct a hearing and impose appropriate sanctions and order
16 appropriate remedies.
17 DIVISION II
18 INCARCERATED WITNESS TESTIMONY
19 Sec. 5. NEW SECTION. 804A.1 Definitions.
20 As used in this chapter, unless the context otherwise
21 requires:
22 1. “Benefit” means any plea bargain, bail consideration,
23 reduction or modification of sentence, or any other leniency,
24 immunity, financial payment, reward, or amelioration of current
25 or future conditions of a sentence that is requested, provided,
26 or will be provided in the future in connection with, or in
27 exchange for, the testimony of a incarcerated witness.
28 2. “Incarcerated witness” means a person who provides
29 testimony, or who intends to provide testimony, during a
30 criminal prosecution regarding statements made by a suspect or
31 defendant while both the witness and the suspect or defendant
32 were incarcerated, and who has requested, has been offered, or
33 may in the future receive a benefit in connection with such
34 testimony. “Incarcerated witness” does not include a person who
35 is a confidential informant, codefendant, percipient witness,
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1 accomplice, or coconspirator in the criminal prosecution.
2 Sec. 6. NEW SECTION. 804A.2 Transparency in the use of
3 incarcerated witness testimony.
4 1. In any criminal prosecution, not less than ninety days
5 prior to a trial, the prosecuting attorney shall disclose its
6 intent to introduce the testimony of an incarcerated witness
7 regarding statements made by a suspect or defendant, while such
8 witness and suspect or defendant were both incarcerated. The
9 prosecuting attorney shall provide to the defense all of the
10 following:
11 a. The criminal history of the incarcerated witness,
12 including any pending or dismissed criminal charges.
13 b. The incarcerated witness’s cooperation agreement and any
14 benefit that has been requested by, provided to, or will be
15 provided in the future to the incarcerated witness.
16 c. The contents of any statement allegedly given by the
17 suspect or defendant to the incarcerated witness and the
18 contents of any statement given by the incarcerated witness
19 to law enforcement regarding the statements allegedly made by
20 the suspect or defendant, including the time and place such
21 statements were given.
22 d. Any information regarding the incarcerated witness
23 recanting testimony or statements, including the time and place
24 of the recantation, the nature of the recantation, and the
25 names of the people present at the recantation.
26 e. Any information concerning other criminal cases in
27 which the testimony of the incarcerated witness was introduced
28 or was intended to be introduced by a prosecuting attorney
29 regarding statements made by a suspect or defendant, including
30 any cooperation agreement and any benefit that the incarcerated
31 witness received in such case.
32 2. The court may permit the prosecuting attorney to
33 comply with the provisions of this section after the time
34 period provided in subsection 1 if the court finds that the
35 incarcerated witness was not known or the information described
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1 in subsection 1 could not be discovered or obtained by the
2 prosecuting attorney exercising due diligence within the time
3 period.
4 3. If the court finds that disclosing the information
5 described in subsection 1 is likely to cause bodily harm to the
6 incarcerated witness, the court may do any of the following:
7 a. Order that such evidence be viewed only by the defense
8 counsel and not by the defendant or others.
9 b. Issue a protective order.
10 4. If the testimony of an incarcerated witness is admitted
11 into evidence, the jury shall be instructed that such testimony
12 was provided by an incarcerated witness and informed of any
13 benefit that has been requested by, provided to, or will
14 be provided in the future to the incarcerated witness in
15 connection with providing such testimony.
16 Sec. 7. NEW SECTION. 804A.3 Pretrial hearing ——
17 incarcerated witness testimony.
18 1. In a criminal prosecution in which the prosecuting
19 attorney intends to introduce the testimony of an incarcerated
20 witness, upon motion of the defendant, the court shall conduct
21 a pretrial hearing to determine whether the incarcerated
22 witness’s testimony exhibits reliability and is admissible
23 based on the following factors:
24 a. The extent to which the incarcerated witness’s testimony
25 is confirmed by other evidence.
26 b. The specificity of the testimony.
27 c. The extent to which the testimony contains details that
28 would be known only by the perpetrator of the offense.
29 d. The extent to which the details of the testimony could be
30 obtained from a source other than the suspect or defendant.
31 e. The circumstances under which the incarcerated witness
32 provided the information to the prosecuting attorney or a law
33 enforcement officer, including whether the incarcerated witness
34 was responding to leading questions.
35 2. If the prosecuting attorney fails to show by a
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1 preponderance of the evidence that an incarcerated witness’s
2 testimony is reliable, the court shall exclude the testimony at
3 trial.
4 Sec. 8. NEW SECTION. 804A.4 Tracking the use of
5 incarcerated witness testimony.
6 1. A prosecuting attorney’s office shall maintain a central
7 record containing all of the following:
8 a. Any case in which testimony by an incarcerated
9 witness was introduced or was intended to be introduced by a
10 prosecuting attorney regarding statements made by a suspect or
11 defendant and the substance of such testimony.
12 b. Any benefit that was requested by, provided to, or
13 will be provided in the future to an incarcerated witness in
14 connection with testimony provided by the witness.
15 2. Each prosecuting attorney’s office shall forward the
16 information described in subsection 1 to the division of
17 criminal investigation of the department of public safety. The
18 division shall maintain a statewide database containing the
19 information forwarded pursuant to this section. The database
20 shall be accessible only to prosecuting attorneys and shall
21 otherwise remain confidential and not subject to open records
22 requests.
23 3. If an incarcerated witness receives any benefit in
24 connection with offering or providing testimony against a
25 defendant, the prosecuting attorney shall notify any victim
26 connected to the crime for which the witness was incarcerated.
27 DIVISION III
28 POSTCONVICTION ACCESS TO INVESTIGATIVE FILES IN CRIMINAL CASES
29 Sec. 9. NEW SECTION. 701.13 Postconviction file access ——
30 discoverable materials.
31 1. For purposes of this section, “file” means all papers,
32 documents, statements, photographs, or tangible objects in
33 the possession, custody, or control of the state including
34 any results or reports of physical or mental examinations and
35 of scientific tests or experiments made in connection with a
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1 particular criminal case.
2 2. Except as provided in subsection 3, a prosecuting
3 attorney, to the extent allowed by law, shall make available to
4 a defendant who has been convicted of a felony or an aggravated
5 misdemeanor, any file in the possession of a law enforcement
6 agency, county attorney, or the attorney general in this state
7 involved in the investigation of any felony or aggravated
8 misdemeanor committed by the defendant relating to the
9 prosecution of the defendant that the defendant was entitled to
10 at the time of the defendant’s trial.
11 3. In all criminal cases involving a conviction for a felony
12 or an aggravated misdemeanor, all of the following shall apply:
13 a. Except as provided in subsection 4, a defendant’s
14 previous trial or appellate attorney shall securely retain a
15 copy of the defendant’s file for seven years after completion
16 or termination of representation of the defendant or until the
17 completion of the defendant’s term of imprisonment, whichever
18 occurs first. An electronic copy is sufficient only if an
19 entire file can be digitally copied and preserved.
20 b. A defendant’s file may be maintained by electronic,
21 photographic, or other media provided that printed copies may
22 be produced and the records are readily accessible to the
23 defendant’s previous trial or appellate attorney.
24 c. A defendant’s previous trial or appellate attorney shall
25 make available to the defendant or the defendant’s current
26 attorney the complete file relating to the prosecution of the
27 defendant.
28 4. a. A defendant’s previous trial or appellate attorney
29 may destroy the defendant’s file prior to the end of the term
30 of retention described in subsection 3 if the attorney receives
31 written or electronically recorded consent from the defendant.
32 The written or electronic record of the consent to destruction
33 shall be maintained by the attorney for a period of at least
34 six years after completion or termination of representation or
35