Senate bill would limit ‘fishing expeditions’ by criminal defendants in court

Opponents worry proposal would lead to wrongful convictions

By: - February 23, 2023 5:19 pm

Long-standing Iowa criminal procedure gives broad authority to defendants to issue subpoenas, which could be challenged in court for being “unreasonable or oppressive.” (Photo via Canva)

Criminal defendants have too much power to harass their victims with wide-ranging court requests for cellphone and computer data and other potentially sensitive information, Republican leaders in the Iowa Senate and prosecutors said Thursday.

Senate File 204 is meant to fix that, supporters said. It was advanced from a Senate subcommittee and will be taken up by the full Judiciary Committee next week, said Sen. Brad Zaun, an Urbandale Republican who leads that committee. Some worry that the bill’s changes to criminal court procedure might lead to wrongful convictions.

Zaun said the bill has several changes that he and his colleagues had sought from the judiciary as it reviewed and revised court procedures in recent years. Chief among them is limiting what criminal defendants can subpoena from witnesses.

“We have completely lost the whole concept of expectation of privacy for third parties, particularly victims,” Black Hawk County Attorney Brian Williams said during the Thursday subcommittee hearing. He added: “When you hear horror stories, it is not the exception, it is the rule.”

Long-standing Iowa criminal procedure gives broad authority to defendants to issue subpoenas, which could be challenged in court for being “unreasonable or oppressive.” But that has still allowed defendants to obtain a considerable amount of private information that might not be pertinent to their prosecutions, said Jessica Reynolds, executive director of the Iowa County Attorneys Association.

She said a defendant’s ability to conduct a “fishing expedition” via subpoena has a “chilling effect” on prosecutions because witnesses and victims might be reluctant to testify or report crimes.

“Imagine for a moment, if you will, that you are the victim of sexual assault,” Reynolds said. “And not only do you have to sit in a room in a deposition with your accuser and say what happened — and say that at trial — but you get a defense subpoena dropped on you. And that defense subpoena is for your cellphone, your laptop computer, your diary.”

Late last year, Iowa Supreme Court Chief Justice Susan Christensen signed an order to adopt new rules about those subpoenas to become effective in July 2023 that included several new restrictions. But Sen. Dan Dawson, R-Council Bluffs, who led the subcommittee hearing on Thursday, said further modifications were necessary.

The new bill would prevent defendants from obtaining legitimate subpoenas for documents or other evidence unless there is a compelling need for the evidence and it doesn’t contain private information of people other than the defendant. The defendant would have to prove those points to a judge based on a high standard of “clear and convincing evidence” before allowing a subpoena.

The bill further makes it a crime for a defense attorney to issue a subpoena in violation of the new procedure — a simple misdemeanor punishable by up to 30 days in jail.

“As it’s written, this would limit the ability of a defendant to get some of the subpoenas under a standard that is higher than what is for the prosecutor,” said Tricia Rojo Bushnell, executive director for the Midwest Innocence Project, which advocates for policies to help prevent wrongful convictions. She added: “The defendant has to have access to a process that lets them get reliable evidence.”

Sen. Nate Boulton, D-Des Moines, said other proposed legislation that would reinstate a death penalty for certain crimes in Iowa puts an enhanced focus on avoiding those wrongful convictions.

“When we talk about limiting exculpatory evidence and the rights of defendants and putting life on the line, that really has to be something that’s done with absolute certainty in terms of getting this right,” Boulton said.

Several county and state prosecutors spoke in favor of the bill. Sac County Attorney Ben Smith said he has worked as a defense attorney and a prosecutor and that “this proposed law strikes a balance.”

“Witness intimidation is a problem,” he said. “It’s a real thing.”

The bill also includes a provision that would eliminate a requirement for a defendant to be physically present at the deposition of a witness who is younger than 18. Children’s advocates say young witnesses can be rattled by their presence.

The bill would also: prevent certain felons and sex offenders from serving as jurors; require the consent of the Iowa Attorney General’s Office for conditional guilty pleas in which the office will likely litigate an appeal; and restrict defendants from conducting depositions prior to being charged with a crime.

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Jared Strong
Jared Strong

Senior reporter Jared Strong has written about Iowans and the important issues that affect them for more than 15 years, previously for the Carroll Times Herald and the Des Moines Register.