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SF 2349 – Criminal Procedure, Defense Subpoenas (LSB5336SV)
Staff Contact: Molly Kilker (515.725.1286) molly.kilker@legis.iowa.gov
Fiscal Note Version – New
Description
Senate File 2349 relates to defense subpoenas in criminal actions and provides the following:
• A criminal defendant or counsel acting on the defendant’s behalf may not issue any
subpoena for documents or evidence except upon application to the court. The defendant
must prove by a preponderance of the evidence all of the following:
• There is a compelling need for the evidence sought, and the evidence is material,
necessary, exculpatory, and admissible at trial.
• The evidence sought does not include the private information of a crime victim or any
other person except for the defendant’s private information.
• Notwithstanding any rule of criminal procedure concerning the issuance of a subpoena, the
Bill serves as the exclusive mechanism for a criminal defendant or counsel acting on the
defendant’s behalf to issue a subpoena for documents or other evidence.
• An application for a defense subpoena must not be filed or reviewed ex parte.
• The prosecuting attorney is not required to execute or effectuate any order or subpoena
issued pursuant to the Bill.
• A crime victim or other party who is the subject of a subpoena must not be required by the
court to execute a waiver.
• Upon application by a crime victim or the prosecuting attorney, the court must appoint an
attorney to represent the person or entity served with a defense subpoena if the person or
entity is determined to be indigent. Counsel appointed for this purpose pursuant to the Bill
must be paid from the Indigent Defense Fund.
• Documents or other evidence obtained through a defense subpoena must be provided to
the prosecuting attorney within five business days after the receipt of the documents or
other evidence.
• Documents or other evidence obtained through a defense subpoena that does not comply
with the requirements in the Bill are not admissible in any criminal action if offered by the
defendant.
• The court may sanction an attorney for knowingly issuing a defense subpoena in violation of
the Bill.
• An applicant for postconviction relief is not entitled to relief on a claim of ineffective
assistance of counsel as a result of evidence obtained through a defense subpoena.
Background
Iowa Code section 815.9(1) provides the qualifications for indigency. Iowa Code section 815.11
establishes the Indigent Defense Fund. The Indigent Defense Fund consists of funds
appropriated by the General Assembly from the General Fund to the Office of the State Public
Defender (SPD) for indigent legal defense by a court-appointed attorney. Approximately $22.7
million was expended from the Indigent Defense Fund in FY 2023 for processing criminal
claims. The average cost per criminal case in FY 2023 was $524 per case.
Fiscal Note
Fiscal Services Division 2
Assumptions
• Expanding representation by the SPD to indigent individuals who receive a defense
subpoena may significantly increase costs to the Indigent Defense Fund due to an increase
in attorney time spent on criminal cases; the time needed for investigation; the number of
motions, hearings, trials, and appeals; and the use of expert witnesses. The number of
individuals to which this will apply cannot be estimated.
• The requirement to provide information obtained through a subpoena to the prosecutor
within five days may also increase costs to the Indigent Defense Fund due to additional staff
needed to comply.
• The SPD will require 15.0 Investigator 2 full-time equivalent (FTE) positions at a cost of
$67,000 each to meet the increased investigatory needs of public defender employees and
contract attorneys.
• The number of applications to the court for defense subpoenas is unknown.
• The average cost per criminal case is estimated to double from $524 to $1,048 per case.
Fiscal Impact
The total fiscal impact of Senate File 2349 cannot be estimated, but the costs to the SPD are
anticipated to be significant. Under the Bill, the amount of attorney time spent on a case is
estimated to increase due to the increased numbers of motions, hearings, and investigations,
and fewer resolutions before trials which may increase the average cost per criminal case
handled by court-appointed attorneys. The costs will be incurred by the Indigent Defense Fund.
Additionally, the SPD estimates the need to hire 15.0 Investigator 2 FTE positions, for a total
cost of $1.0 million to the SPD operating budget.
Sources
Office of the State Public Defender
Legislative Services Agency
/s/ Jennifer Acton
February 27, 2024
Doc ID 1447313
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