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House
File
2639
-
Introduced
HOUSE
FILE
2639
BY
COMMITTEE
ON
JUDICIARY
(SUCCESSOR
TO
HF
2135)
A
BILL
FOR
An
Act
relating
to
limitations
on
discovery
depositions
1
involving
minor
victims.
2
BE
IT
ENACTED
BY
THE
GENERAL
ASSEMBLY
OF
THE
STATE
OF
IOWA:
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Section
1.
NEW
SECTION
.
701.14
Discovery
depositions
1
involving
minor
victims
——
procedures
and
protections.
2
1.
As
used
in
this
section:
3
a.
“Deponent
abuse”
means
conduct
by
an
attorney
during
a
4
deposition
that:
5
(1)
Employs
questions
or
comments
designed
primarily
to
6
humiliate,
intimidate,
or
emotionally
distress
the
minor
7
deponent
rather
than
to
elicit
relevant
information.
8
(2)
Requires
the
minor
deponent
to
repeatedly
describe
the
9
same
traumatic
events
when
such
repetition
serves
no
legitimate
10
discovery
purpose.
11
(3)
Uses
a
tone,
volume,
or
manner
of
questioning
that
is
12
threatening,
mocking,
or
belittling
toward
the
minor
deponent.
13
(4)
Makes
statements
that
blame
or
shame
the
minor
deponent
14
for
the
alleged
criminal
conduct.
15
(5)
Asks
questions
about
the
minor
deponent’s
sexual
16
history
or
reputation
that
are
not
directly
relevant
to
the
17
charged
offense
and
admissible
under
applicable
rules
of
18
evidence.
19
(6)
Continues
questioning
after
the
minor
deponent
has
20
exhibited
significant
emotional
distress
without
allowing
a
21
reasonable
recess.
22
(7)
Engages
in
any
other
conduct
that
a
reasonable
person
23
would
recognize
as
designed
to
cause
unnecessary
psychological
24
harm
to
the
minor
deponent.
25
b.
“Forensic
interview”
means
a
video
and
audio
recorded
26
statement
obtained
by
a
forensic
interviewer
employed
by
an
27
accredited
child
advocacy
center
or
child
protection
center,
28
conducted
substantially
in
accordance
with
a
nationally
29
recognized
protocol
for
interviewing
children.
30
c.
“Minor”
means
a
person
under
eighteen
years
of
age.
31
d.
“Trauma-informed
practices”
means
approaches
to
32
questioning
that
minimize
retraumatization
while
still
33
permitting
thorough
inquiry,
including
but
not
limited
to
34
developmentally
appropriate
language,
nonleading
questions
when
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possible,
and
awareness
of
trauma
responses.
1
2.
Notwithstanding
any
other
provision
of
law,
there
is
2
a
rebuttable
presumption
in
favor
of
permitting
a
discovery
3
deposition
of
a
minor
victim
in
a
criminal
action
when
defense
4
counsel
demonstrates
to
the
court,
by
a
preponderance
of
the
5
evidence,
that
such
deposition
is
critical
to
the
defendant’s
6
ability
to
receive
an
adequate
and
fair
trial.
7
3.
Defense
counsel
seeking
to
depose
a
minor
victim
8
shall
file
a
written
application
with
the
court,
which
may
9
be
submitted
under
seal
and
heard
in
camera
at
the
request
10
of
either
party.
The
application
shall
set
forth
with
11
particularity:
12
a.
The
specific
factual
matters
or
areas
of
inquiry
that
13
defense
counsel
seeks
to
explore
through
the
deposition.
14
b.
The
reasons
why
the
requested
information
is
critical
to
15
the
defense
including
but
not
limited
to:
16
(1)
Facts
necessary
to
complete
the
investigation
that
are
17
known
only
to
the
proposed
deponent.
18
(2)
Ambiguities,
inconsistencies,
or
gaps
in
the
minor
19
victim’s
prior
statements
that
require
clarification.
20
(3)
Information
needed
to
evaluate
or
challenge
the
21
credibility
of
the
allegations.
22
(4)
Facts
relevant
to
an
affirmative
defense
or
to
negating
23
an
element
of
the
charged
offense.
24
(5)
Information
necessary
to
identify
or
locate
other
25
witnesses
or
evidence.
26
(6)
Matters
that
could
not
reasonably
be
explored
through
27
alternative
discovery
methods.
28
c.
A
description
of
efforts
made
to
obtain
the
information
29
through
other
discovery
methods,
including
but
not
limited
to
30
review
of
the
forensic
interview,
written
interrogatories,
31
requests
for
production,
or
depositions
of
other
witnesses.
32
d.
An
estimate
of
the
time
reasonably
necessary
to
complete
33
the
deposition.
34
e.
A
proposed
plan
for
minimizing
trauma
to
the
minor
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deponent,
including
proposed
location,
timing,
and
any
1
accommodations.
2
4.
In
ruling
on
an
application
under
subsection
3,
the
court
3
shall
weigh:
4
a.
The
importance
of
the
requested
information
to
the
5
defendant’s
ability
to
present
a
meaningful
defense.
6
b.
Whether
the
information
sought
is
available
through
less
7
intrusive
means,
including
review
of
the
forensic
interview
or
8
other
discovery.
9
c.
The
age
and
developmental
level
of
the
minor
victim.
10
d.
The
nature
and
severity
of
the
alleged
offense.
11
e.
The
potential
psychological
impact
on
the
minor
victim.
12
f.
The
length
of
time
since
the
alleged
offense
occurred.
13
g.
Whether
the
minor
victim
has
received
therapeutic
14
treatment
that
could
be
disrupted
by
the
deposition.
15
h.
The
existence
and
quality
of
any
forensic
interview
or
16
other
recorded
statement.
17
i.
Any
other
factors
the
court
deems
relevant
to
balancing
18
the
defendant’s
constitutional
rights
against
the
welfare
of
19
the
minor
victim.
20
5.
If
the
court
grants
the
application,
the
court
shall
21
issue
an
order
specifying
all
of
the
following:
22
a.
The
specific
topics
or
areas
of
inquiry
permitted.
23
b.
Topics
or
questions
that
are
prohibited.
24
c.
The
maximum
duration
of
the
deposition.
25
d.
Any
other
limitations
the
court
deems
appropriate
to
26
protect
the
minor
victim
while
permitting
meaningful
discovery.
27
6.
All
depositions
of
minor
victims
conducted
pursuant
28
to
this
section
shall
be
subject
to
the
following
mandatory
29
protections:
30
a.
(1)
The
deposition
shall
be
conducted
at
a
location
31
chosen
by
the
minor
deponent
or
counsel
for
the
minor
deponent,
32
which
may
include:
33
(a)
A
child
advocacy
center
or
child
protection
center.
34
(b)
The
office
of
the
prosecuting
attorney.
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(c)
A
neutral
location
approved
by
the
court.
1
(d)
Any
other
location
where
the
minor
deponent
feels
safe
2
and
comfortable.
3
(2)
The
deposition
shall
not
be
conducted
in
a
jail,
prison,
4
law
enforcement
facility,
or
the
office
of
defense
counsel
5
unless
the
minor
deponent
affirmatively
consents.
6
b.
The
deposition
shall
be
scheduled
at
a
time
that
7
minimizes
disruption
to
the
minor
deponent’s
school
attendance,
8
therapeutic
appointments,
and
regular
activities.
9
c.
The
deposition
shall
be
recorded
by
video
and
audio.
The
10
recording
shall
be
maintained
under
seal
by
the
court
and
shall
11
not
be
disclosed
except
as
provided
by
court
order.
12
d.
(1)
The
minor
deponent
shall
be
entitled
to
have
present
13
during
the
deposition
any
of
the
following:
14
(a)
A
parent,
guardian,
or
other
supportive
adult
of
the
15
minor’s
choosing,
provided
such
person
is
not
a
defendant
or
16
potential
witness
in
the
case.
17
(b)
A
victim
advocate
or
support
animal,
at
the
minor
18
deponent’s
request.
19
(c)
A
therapist
or
mental
health
professional
familiar
with
20
the
minor
deponent,
at
the
minor
deponent’s
request.
21
(2)
Support
persons
in
attendance
pursuant
to
subparagraph
22
(1)
shall
not
answer
questions
on
behalf
of
the
minor
deponent,
23
coach
the
minor
deponent,
or
otherwise
interfere
with
the
24
deposition,
but
may
provide
comfort
through
physical
proximity
25
and
may
request
recesses
when
the
minor
deponent
exhibits
26
significant
distress.
27
e.
The
minor
deponent
or
any
support
person
may
request
28
breaks
at
any
time.
Breaks
shall
be
granted
liberally.
In
no
29
event
shall
the
minor
deponent
be
required
to
participate
in
30
questioning
for
more
than
one
hour
without
a
break
of
at
least
31
fifteen
minutes.
32
f.
The
minor
deponent
shall
be
entitled
to
have
counsel
33
present
during
the
deposition
to
assert
objections
and
protect
34
the
minor
deponent’s
interests.
If
the
minor
deponent
is
not
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otherwise
represented,
the
court
shall
appoint
counsel
or
a
1
guardian
ad
litem
to
represent
the
minor
deponent’s
interests
2
at
the
deposition.
3
g.
(1)
Only
one
attorney
for
each
party
shall
be
permitted
4
to
question
the
minor
deponent.
5
(2)
Questions
shall
be
phrased
in
language
appropriate
to
6
the
minor
deponent’s
age
and
developmental
level.
7
(3)
Compound,
confusing,
or
misleading
questions
shall
not
8
be
permitted.
9
(4)
The
attorney
conducting
the
deposition
shall
use
10
trauma-informed
practices.
11
h.
Upon
request
of
the
minor
deponent
or
counsel
for
the
12
minor
deponent:
13
(1)
The
minor
deponent
may
testify
from
behind
a
screen
or
14
one-way
mirror
that
shields
the
minor
deponent
from
direct
view
15
of
the
defendant,
while
permitting
the
defendant
to
observe
the
16
minor
deponent.
17
(2)
The
deposition
may
be
conducted
via
contemporaneous
18
two-way
video
technology
that
permits
the
minor
deponent
to
be
19
in
a
separate
room
from
the
defendant
and
defense
counsel.
20
(3)
The
room
shall
be
arranged
to
minimize
intimidation,
21
which
may
include
seating
the
minor
deponent
at
the
same
level
22
as
counsel,
removing
the
defendant
from
the
minor
deponent’s
23
direct
line
of
sight,
or
other
accommodations.
24
i.
The
defendant
may
be
excluded
from
the
room
where
25
the
minor
deponent
is
physically
located
but
shall
have
the
26
right
to
observe
the
deposition
via
contemporaneous
video
27
transmission
and
to
communicate
with
defense
counsel
through
28
electronic
means.
29
7.
Prior
to
conducting
a
deposition
of
a
minor
victim
under
30
this
section,
the
attorney
conducting
the
deposition
shall
file
31
a
certification
with
the
court
attesting
that:
32
a.
The
attorney
has
reviewed
the
court’s
order
regarding
33
permitted
and
prohibited
areas
of
inquiry.
34
b.
The
attorney
has
reviewed
materials
on
trauma-informed
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questioning
of
minors.
1
c.
The
attorney
understands
and
will
comply
with
the
2
mandatory
protections
set
forth
in
this
section.
3
d.
The
attorney
understands
the
sanctions
that
may
be
4
imposed
for
deponent
abuse.
5
8.
a.
Counsel
for
the
minor
deponent
or
the
prosecuting
6
attorney
may
object
to
any
question
that
exceeds
the
scope
7
permitted
by
the
court’s
order
or
that
constitutes
deponent
8
abuse.
Upon
such
objection,
the
minor
deponent
shall
not
be
9
required
to
answer
until
the
objection
is
resolved.
10
b.
If
a
pattern
of
improper
questioning
emerges,
counsel
for
11
the
minor
deponent
or
the
prosecuting
attorney
may
suspend
the
12
deposition
and
seek
immediate
telephonic
review
by
the
court.
13
c.
The
court
may,
upon
review,
terminate
the
deposition,
14
limit
its
scope
further,
or
impose
immediate
sanctions.
15
9.
a.
Upon
motion
of
the
prosecuting
attorney,
counsel
for
16
the
minor
deponent,
or
upon
the
court’s
own
motion,
the
court
17
shall
conduct
a
hearing
to
determine
whether
deponent
abuse
18
occurred
during
a
deposition
conducted
under
this
section.
19
b.
If
the
court
finds
by
a
preponderance
of
the
evidence
20
that
deponent
abuse
occurred,
the
court
shall
impose
one
or
21
more
of
the
following
sanctions:
22
(1)
A
fine
against
the
offending
attorney
of
not
less
than
23
one
thousand
dollars
and
not
more
than
twenty-five
thousand
24
dollars
per
instance
of
abuse.
25
(2)
An
order
requiring
the
offending
attorney
or
the
26
attorney’s
client
to
pay
all
costs
associated
with
the
27
deposition,
including
but
not
limited
to
court
reporter
fees,
28
videographer
fees,
fees
for
counsel
for
the
minor
deponent,
29
and
fees
for
any
mental
health
professionals
required
to
be
30
present.
31
(3)
An
order
requiring
the
offending
attorney
or
the
32
attorney’s
client
to
pay
for
any
additional
therapeutic
33
treatment
required
by
the
minor
deponent
as
a
result
of
the
34
deponent
abuse.
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(4)
An
order
excluding
from
evidence
at
trial
any
testimony
1
obtained
through
abusive
questioning.
2
(5)
An
order
permitting
the
prosecuting
attorney
to
3
inform
the
jury
that
testimony
was
excluded
due
to
defense
4
counsel’s
abusive
conduct,
or
permitting
an
adverse
inference
5
instruction.
6
(6)
Immediate
termination
of
the
deposition
with
no
right
7
to
reconvene.
8
(7)
An
order
prohibiting
the
offending
attorney
from
9
conducting
any
further
depositions
of
minors
in
any
case
for
a
10
period
of
not
less
than
one
year.
11
(8)
Referral
of
the
offending
attorney
to
the
appropriate
12
attorney
disciplinary
authority
for
professional
misconduct.
13
(9)
A
finding
of
contempt
of
court,
with
appropriate
civil
14
or
criminal
penalties.
15
(10)
In
cases
of
egregious
or
repeated
abuse,
preclusion
16
of
defenses,
or
other
case-dispositive
sanctions
as
the
court
17
deems
just.
18
c.
The
court
shall
state
on
the
record
or
in
a
written
19
order
the
specific
conduct
constituting
deponent
abuse
and
the
20
reasons
for
the
sanctions
imposed.
21
d.
Sanctions
under
this
subsection
are
in
addition
to
22
any
other
remedies
available
under
the
Iowa
rules
of
civil
23
procedure,
the
Iowa
rules
of
criminal
procedure,
or
other
24
applicable
law.
25
e.
An
attorney
sanctioned
under
this
subsection
may
appeal
26
the
sanction,
but
such
appeal
shall
not
stay
the
effect
of
the
27
sanction
unless
the
court
so
orders.
28
10.
a.
A
deposition
taken
under
this
section
may
be
used
29
at
trial
in
accordance
with
the
Iowa
rules
of
evidence
and
the
30
Iowa
rules
of
criminal
procedure.
31
b.
Nothing
in
this
section
shall
be
construed
to
limit
the
32
minor
victim’s
right
to
testify
at
trial
or
the
defendant’s
33
right
to
confront
and
cross-examine
the
minor
victim
at
trial.
34
11.
a.
All
applications,
orders,
and
proceedings
under
this
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section
may
be
conducted
under
seal
and
in
camera
upon
request
1
of
any
party.
2
b.
The
video
recording
of
any
deposition
conducted
under
3
this
section
shall
be
maintained
under
seal
and
shall
not
be
4
released,
copied,
or
disseminated
except
by
court
order
for
5
purposes
directly
related
to
the
criminal
proceeding.
6
c.
Violation
of
the
confidentiality
provisions
of
this
7
subsection
shall
be
punishable
as
contempt
of
court
and
may
8
result
in
sanctions
as
provided
in
subsection
9.
9
12.
a.
This
section
shall
be
construed
to
balance
the
10
defendant’s
constitutional
rights
to
due
process
and
effective
11
assistance
of
counsel
with
the
state’s
compelling
interest
in
12
protecting
minor
victims
from
unnecessary
trauma
and
promoting
13
the
accurate
and
reliable
testimony
of
child
witnesses.
14
b.
Nothing
in
this
section
shall
be
construed
to
limit
any
15
rights
of
the
defendant
under
the
Constitution
of
the
United
16
States
or
the
Constitution
of
the
State
of
Iowa.
17
c.
If
any
provision
of
this
section
or
its
application
to
18
any
person
or
circumstance
is
held
invalid,
the
invalidity
does
19
not
affect
other
provisions
or
applications
of
this
section
20
that
can
be
given
effect
without
the
invalid
provision
or
21
application.
22
EXPLANATION
23
The
inclusion
of
this
explanation
does
not
constitute
agreement
with
24
the
explanation’s
substance
by
the
members
of
the
general
assembly.
25
This
bill
relates
to
limitations
on
discovery
depositions
26
involving
minor
victims.
27
The
bill
provides
that
there
shall
be
a
rebuttable
28
presumption
in
favor
of
permitting
a
discovery
deposition
29
of
a
minor
victim
in
a
criminal
action
when
defense
counsel
30
demonstrates
to
the
court,
by
a
preponderance
of
the
evidence,
31
that
such
deposition
is
critical
to
the
defendant’s
ability
to
32
receive
an
adequate
and
fair
trial.
Defense
counsel
seeking
33
to
depose
a
minor
victim
must
file
a
written
application
34
with
the
court,
which
sets
forth
with
particularity:
the
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specific
factual
matters
or
areas
of
inquiry
that
defense
1
counsel
seeks
to
explore
through
the
deposition;
the
reasons
2
why
the
requested
information
is
critical
to
the
defense;
a
3
description
of
efforts
made
to
obtain
the
information
through
4
other
discovery
methods,
including
but
not
limited
to
review
of
5
the
forensic
interview,
written
interrogatories,
requests
for
6
production,
or
depositions
of
other
witnesses;
an
estimate
of
7
the
time
reasonably
necessary
to
complete
the
deposition;
and
8
a
proposed
plan
for
minimizing
trauma
to
the
minor
deponent,
9
including
proposed
location,
timing,
and
any
accommodations.
10
The
bill
provides
that
in
ruling
on
an
application
the
court
11
shall
weigh:
the
importance
of
the
requested
information
12
to
the
defendant’s
ability
to
present
a
meaningful
defense;
13
whether
the
information
sought
is
available
through
less
14
intrusive
means,
including
review
of
the
forensic
interview
15
or
other
discovery;
the
age
and
developmental
level
of
the
16
minor
victim;
the
nature
and
severity
of
the
alleged
offense;
17
the
potential
psychological
impact
on
the
minor
victim;
the
18
length
of
time
since
the
alleged
offense
occurred;
whether
the
19
minor
victim
has
received
therapeutic
treatment
that
could
be
20
disrupted
by
the
deposition;
the
existence
and
quality
of
any
21
forensic
interview
or
other
recorded
statement;
and
any
other
22
factors
the
court
deems
relevant
to
balancing
the
defendant’s
23
constitutional
rights
against
the
welfare
of
the
minor
victim.
24
If
the
court
grants
the
application,
the
court
shall
issue
an
25
order
specifying:
the
specific
topics
or
areas
of
inquiry
26
permitted;
topics
or
questions
that
are
prohibited;
the
maximum
27
duration
of
the
deposition;
and
any
other
limitations
the
court
28
deems
appropriate
to
protect
the
minor
victim
while
permitting
29
meaningful
discovery.
30
The
bill
specifies
that
all
depositions
of
minor
victims
31
conducted
pursuant
to
this
section
shall
be
subject
to
the
32
following
mandatory
protections:
the
deposition
shall
be
33
conducted
at
a
location
chosen
by
the
minor
deponent
or
34
counsel
for
the
minor
deponent;
the
deposition
shall
not
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be
conducted
in
a
jail,
prison,
law
enforcement
facility,
1
or
the
office
of
defense
counsel
unless
the
minor
deponent
2
affirmatively
consents;
the
deposition
shall
be
scheduled
at
a
3
time
that
minimizes
disruption
to
the
minor
deponent’s
school
4
attendance,
therapeutic
appointments,
and
regular
activities;
5
and
the
deposition
shall
be
recorded
by
video
and
audio.
The
6
minor
deponent
shall
be
entitled
to
have
present
during
the
7
deposition:
a
parent,
guardian,
or
other
supportive
adult
of
8
the
minor’s
choosing,
provided
such
person
is
not
a
defendant
9
or
potential
witness
in
the
case;
a
victim
advocate
or
support
10
animal,
at
the
minor
deponent’s
request;
and
a
therapist
or
11
mental
health
professional
familiar
with
the
minor
deponent,
at
12
the
minor
deponent’s
request.
The
minor
deponent
may
testify
13
from
behind
a
screen
or
one-way
mirror
that
shields
the
minor
14
deponent
from
direct
view
of
the
defendant,
while
permitting
15
the
defendant
to
observe
the
minor
deponent.
The
deposition
16
may
be
conducted
via
contemporaneous
two-way
video
technology
17
that
permits
the
minor
deponent
to
be
in
a
separate
room
from
18
the
defendant
and
defense
counsel.
Counsel
for
the
minor
19
deponent
or
the
prosecuting
attorney
may
object
to
any
question
20
that
exceeds
the
scope
permitted
by
the
court’s
order
or
that
21
constitutes
deponent
abuse.
Upon
such
objection,
the
minor
22
deponent
shall
not
be
required
to
answer
until
the
objection
23
is
resolved.
If
a
pattern
of
improper
questioning
emerges,
24
counsel
for
the
minor
deponent
or
the
prosecuting
attorney
25
may
suspend
the
deposition
and
seek
immediate
telephonic
26
review
by
the
court.
The
court
may,
upon
review,
terminate
27
the
deposition,
limit
its
scope
further,
or
impose
immediate
28
sanctions.
29
The
bill
provides
that
upon
motion
of
the
prosecuting
30
attorney
or
counsel
for
the
minor
deponent,
or
upon
the
court’s
31
own
motion,
the
court
shall
conduct
a
hearing
to
determine
32
whether
deponent
abuse
occurred
during
a
deposition
conducted
33
under
this
section.
If
the
court
finds
by
a
preponderance
34
of
the
evidence
that
deponent
abuse
occurred,
the
court
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shall
impose
one
or
more
of
the
following
sanctions:
a
fine
1
against
the
offending
attorney
of
not
less
than
$1,000
and
not
2
more
than
$25,000
per
instance
of
abuse;
an
order
requiring
3
the
offending
attorney
or
the
attorney’s
client
to
pay
all
4
costs
associated
with
the
deposition;
an
order
requiring
the
5
offending
attorney
or
the
attorney’s
client
to
pay
for
any
6
additional
therapeutic
treatment
required
by
the
minor
deponent
7
as
a
result
of
the
deponent
abuse;
an
order
excluding
from
8
evidence
at
trial
any
testimony
obtained
through
abusive
9
questioning;
an
order
permitting
the
prosecuting
attorney
to
10
inform
the
jury
that
testimony
was
excluded
due
to
defense
11
counsel’s
abusive
conduct,
or
permitting
an
adverse
inference
12
instruction;
immediate
termination
of
the
deposition
with
no
13
right
to
reconvene;
an
order
prohibiting
the
offending
attorney
14
from
conducting
any
further
depositions
of
minors
in
any
15
case
for
a
period
of
not
less
than
one
year;
referral
of
the
16
offending
attorney
to
the
appropriate
attorney
disciplinary
17
authority
for
professional
misconduct;
a
finding
of
contempt
18
of
court,
with
appropriate
civil
or
criminal
penalties;
or
in
19
cases
of
egregious
or
repeated
abuse,
preclusion
of
defenses,
20
or
other
case-dispositive
sanctions
as
the
court
deems
just.
21
The
bill
defines
“deponent
abuse”,
“forensic
interview”,
22
“minor”,
and
“trauma-informed
practices”.
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