Bill Summary – FastDemocracy

Fiscal Note
                                        Fiscal Services Division
HF 657 – Postconviction, Access to Records (LSB2472HV.1)
Staff Contact: Isabel Waller (515.281.6561) isabel.waller@legis.iowa.gov
Fiscal Note Version – As amended and passed by the House
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.
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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.
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•   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.
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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
                                                                         /s/ Jennifer Acton
                                                                          March 28, 2023
Doc ID 1371156
The fiscal note for this Bill was prepared pursuant to Joint Rule 17 and the Iowa Code. Data used in
developing this fiscal note is available from the Fiscal Services Division of the Legislative Services
Agency upon request.
                                            www.legis.iowa.gov
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Statutes affected: 
Introduced: 81.1
Reprinted: 81.1