CHAPTER 1. INDICTMENT AND INFORMATION
IC 35-34
ARTICLE 34. BRINGING CRIMINAL CHARGES
IC 35-34-1
Chapter 1. Indictment and Information
IC 35-34-1-1
Commencement of prosecution; filing; sealing; violation
Sec. 1. (a) All prosecutions of crimes shall be brought in the nameof the state of Indiana. Any crime may be charged by indictment orinformation.
(b) Except as provided in IC 12-15-23-6(d), all prosecutions ofcrimes shall be instituted by the filing of an information orindictment by the prosecuting attorney, in a court with jurisdictionover the crime charged.
(c) Whenever an indictment or information is filed, the clerk ofthe court shall:
(1) mark the date of filing on the instrument;
(2) record it in a record book; and
(3) upon request, make a copy of it available to the defendant orhis attorney.
(d) The court, upon motion of the prosecuting attorney, may orderthat the indictment or information be sealed. If a court has sealed anindictment or information, no person may disclose the fact that anindictment or information is in existence or pending until thedefendant has been arrested or otherwise brought within the custodyof the court. However, any person may make any disclosurenecessarily incident to the arrest of the defendant. A violation of thissubsection is punishable as a contempt.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,P.L.204, SEC.18; P.L.10-1994, SEC.7.
IC 35-34-1-2
Contents; requisites; form
Sec. 2. (a) The indictment or information shall be in writing andallege the commission of an offense by:
(1) stating the title of the action and the name of the court inwhich the indictment or information is filed;
(2) stating the name of the offense in the words of the statute orany other words conveying the same meaning;
(3) citing the statutory provision alleged to have been violated,except that any failure to include such a citation or any error insuch a citation does not constitute grounds for reversal of aconviction where the defendant was not otherwise misled as tothe nature of the charges against the defendant;
(4) setting forth the nature and elements of the offense chargedin plain and concise language without unnecessary repetition;
(5) stating the date of the offense with sufficient particularity toshow that the offense was committed within the period oflimitations applicable to that offense; (6) stating the time of the offense as definitely as can be doneif time is of the essence of the offense;
(7) stating the place of the offense with sufficient particularityto show that the offense was committed within the jurisdictionof the court where the charge is to be filed;
(8) stating the place of the offense as definitely as can be doneif the place is of the essence of the offense; and
(9) stating the name of every defendant, if known, and if notknown, by designating the defendant by any name ordescription by which he can be identified with reasonablecertainty.
(b) An indictment shall be signed by:
(1) the foreman or five (5) members of the grand jury; and
(2) the prosecuting attorney or his deputy.
An information shall be signed by the prosecuting attorney or hisdeputy and sworn to or affirmed by him or any other person.
(c) An indictment or information shall have stated upon it thenames of all the material witnesses. Other witnesses may afterwardsbe subpoenaed by the state, but unless the name of a witness is statedon the indictment or information, no continuance shall be granted tothe state due to the absence of the witness.
(d) The indictment or information shall be a plain, concise, anddefinite written statement of the essential facts constituting theoffense charged. It need not contain a formal commencement, aformal conclusion, or any other matter not necessary to thestatement. Presumptions of law and matters of which judicial noticeis taken need not be stated.
(e) The indictment may be substantially in the following form:
IN THE __________ COURT OF INDIANA, 20____
STATE OF INDIANA
vs. CAUSE NUMBER _______
A _________ B _________
The grand jury of the county of _________ upon their oath oraffirmation do present that AB, on the _________ day of__________ 20____ at the county of _________ in the state ofIndiana (HERE SET FORTH THE OFFENSE CHARGED).
(f) The information may be substantially in the same form as theindictment, substituting for the words, "the grand jury of the countyof _________, upon their oath or affirmation so present" thefollowing: "CD, being duly sworn on his oath or having affirmed,says." It is not necessary in an information to state the reason whythe proceeding is by information rather than indictment.
(g) This section applies to a traffic offense (as defined inIC 9-30-3-5) if the traffic offense is:
(1) a felony; or
(2) a misdemeanor.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,P.L.204, SEC.19; P.L.320-1983, SEC.11; P.L.158-1994, SEC.1;P.L.2-2005, SEC.119.
IC 35-34-1-2.4
Verified or sworn documents; form of oath; administration; falseaffirmation or verification
Sec. 2.4. (a) If an indictment, information, pleading, motion,petition, probable cause affidavit, or other document is required to beverified or sworn under oath before it is submitted to the court in acriminal action, the document meets the requirements of the law asa sworn document if the following form or a substantially similarform is used:
I swear (affirm), under penalty of perjury as specified byIC 35-44-2-1, that the foregoing (the following) representationsare true.
Signed __________________
(b) If a document complies with subsection (a), the swearing oraffirming need not be done before a notary or other officerempowered to administer oaths.
(c) A person who makes a false affirmation or verification underthis section may be prosecuted under IC 35-44-2-1.
As added by P.L.181-1988, SEC.1.
IC 35-34-1-2.5
Prior convictions
Sec. 2.5. If the penalty for an offense is, by the terms of thestatute, increased because the person was previously convicted of theoffense, the state may seek to have the person sentenced to receivethe increased penalty by alleging, on a page separate from the rest ofthe charging instrument, that the person was previously convicted ofthe offense.
As added by P.L.50-1984, SEC.7.
IC 35-34-1-3
Illegible or lost indictment or information
Sec. 3. When an indictment or information which has beenreturned or presented to a court as authorized by law has becomeillegible or cannot be produced, the defendant may be tried using acopy certified by the clerk of the court.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-4
Motion to dismiss by defendant; grounds; requisites; disposition;effect of order
Sec. 4. (a) The court may, upon motion of the defendant, dismissthe indictment or information upon any of the following grounds:
(1) The indictment or information, or any count thereof, isdefective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity ofallegation in counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offensewith sufficient certainty. (5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offensecharged.
(7) The prosecution is barred by reason of a previousprosecution.
(8) The prosecution is untimely brought.
(9) The defendant has been denied the right to a speedy trial.
(10) There exists some jurisdictional impediment to convictionof the defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matterof law.
(b) Except as otherwise provided, a motion under this sectionshall be made no later than:
(1) twenty (20) days if the defendant is charged with a felony;or
(2) ten (10) days if the defendant is charged only with one (1)or more misdemeanors;
prior to the omnibus date. A motion made thereafter may besummarily denied if based upon a ground specified in subdivision(a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) of this section. A motion todismiss based upon a ground specified in subdivision (a)(6), (a)(7),(a)(8), (a)(9), (a)(10), or (a)(11) of this section may be made orrenewed at any time before or during trial. A motion to dismiss basedupon lack of jurisdiction over the subject matter may be made at anytime.
(c) Upon the motion to dismiss, a defendant who is in a positionadequately to raise more than one (1) ground in support thereof shallraise every ground upon which he intends to challenge the indictmentor information. A subsequent motion based upon a ground notproperly raised may be summarily denied. However, the court, in theinterest of justice and for good cause shown, may entertain anddispose of such a motion on the merits.
(d) Upon the motion to dismiss, the court shall:
(1) overrule the motion to dismiss;
(2) grant the motion to dismiss and discharge the defendant; or
(3) grant the motion to dismiss and deny discharge of thedefendant if the court determines that the indictment orinformation may be cured by amendment under section 5 of thischapter and the prosecuting attorney has moved for leave toamend.
If the court grants the motion under subdivision (3) and grants theprosecuting attorney leave to amend, any prior order imposingconditions of release pending trial shall stand unless otherwisemodified or removed by order of the court.
(e) If the court grants a motion under subsection (a)(3) and theprosecuting attorney informs the court on the record that the chargeswill be refiled within seventy-two (72) hours by information:
(1) the court may not discharge the defendant; and
(2) any prior order concerning release pending trial remains inforce unless it is modified or removed by the court. (f) An order of dismissal does not, of itself, constitute a bar to asubsequent prosecution of the same crime or crimes except asotherwise provided by law.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,P.L.204, SEC.20; P.L.320-1983, SEC.12.
IC 35-34-1-5
Amendment of charge; procedures; limitations
Sec. 5. (a) An indictment or information which charges thecommission of an offense may not be dismissed but may be amendedon motion by the prosecuting attorney at any time because of anyimmaterial defect, including:
(1) any miswriting, misspelling, or grammatical error;
(2) any misjoinder of parties defendant or offenses charged;
(3) the presence of any unnecessary repugnant allegation;
(4) the failure to negate any exception, excuse, or provisioncontained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to theacts, means, intents, or results charged;
(6) any mistake in the name of the court or county in the title ofthe action, or the statutory provision alleged to have beenviolated;
(7) the failure to state the time or place at which the offense wascommitted where the time or place is not of the essence of theoffense;
(8) the failure to state an amount of value or price of any matterwhere that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantialrights of the defendant.
(b) The indictment or information may be amended in matters ofsubstance and the names of material witnesses may be added, by theprosecuting attorney, upon giving written notice to the defendant atany time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a felony;or
(B) fifteen (15) days if the defendant is charged only withone (1) or more misdemeanors;
before the omnibus date; or
(2) before the commencement of trial;
if the amendment does not prejudice the substantial rights of thedefendant. When the information or indictment is amended, it shallbe signed by the prosecuting attorney or a deputy prosecutingattorney.
(c) Upon motion of the prosecuting attorney, the court may, at anytime before, during, or after the trial, permit an amendment to theindictment or information in respect to any defect, imperfection, oromission in form which does not prejudice the substantial rights ofthe defendant.
(d) Before amendment of any indictment or information other than
amendment as provided in subsection (b) of this section, the courtshall give all parties adequate notice of the intended amendment andan opportunity to be heard. Upon permitting such amendment, thecourt shall, upon motion by the defendant, order any continuance ofthe proceedings which may be necessary to accord the defendantadequate opportunity to prepare his defense.
(e) An amendment of an indictment or information to include ahabitual offender charge under IC 35-50-2-8, IC 35-50-2-8.5, orIC 35-50-2-10 must be made not later than ten (10) days after theomnibus date. However, upon a showing of good cause, the courtmay permit the filing of a habitual offender charge at any time beforethe commencement of the trial.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,P.L.204, SEC.21; P.L.320-1983, SEC.13; P.L.164-1993, SEC.7;P.L.178-2007, SEC.1.
IC 35-34-1-6
Defective indictment or information; dismissal; exceptions
Sec. 6. (a) An indictment or information is defective when:
(1) it does not substantially conform to the requirements ofsection 2(a) of this chapter;
(2) the allegations demonstrate that the court does not havejurisdiction of the offense charged; or
(3) the statute defining the offense charged is unconstitutionalor otherwise invalid.
(b) An information is defective if:
(1) the defendant was a grand jury target identified underIC 35-34-2-12(a)(1);
(2) the offense alleged was identified on the record underIC 35-34-2-12(a)(2) as an offense that the defendant allegedlycommitted; and
(3) the grand jury proceeded to deliberate on whether to issuean indictment, and voted not to indict the defendant for theoffense identified on the record under IC 35-34-2-12(a)(2).
However, if the prosecuting attorney shows that there is newlydiscovered material evidence that was not presented to the grand jurybefore the grand jury's failure to indict, then the information is notdefective.
(c) Except as provided in section 5 of this chapter, an indictmentor information or a count thereof shall be dismissed upon motionwhen it is defective.
As added by Acts 1981, P.L.298, SEC.3. Amended by P.L.312-1985,SEC.1; P.L.3-1990, SEC.121.
IC 35-34-1-7
Grand jury proceedings; violation of IC 35-34-2; dismissal
Sec. 7. An indictment shall be dismissed upon motion when thegrand jury proceeding which resulted in the indictment wasconducted in violation of IC 35-34-2.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-8
Motion to dismiss by defendant; requisites; affidavits;documentary evidence; hearing; disposition; procedures
Sec. 8. (a) A motion to dismiss an indictment or informationunder section 4 of this chapter shall be in writing. The prosecutormust be given reasonable notice of a motion to dismiss. If the motionis expressly or impliedly based upon the existence or occurrence offacts, the motion shall be accompanied by affidavits containingsworn allegations of these facts. The sworn allegations may be basedupon personal knowledge of the affiant or upon information andbelief, provided that in the latter event the affiant discloses thesources of the information and the grounds for the belief. If themotion is expressly or impliedly based upon the existence of anyquestion of law, the motion shall be accompanied by a memorandumstating specifically the legal question in issue. The defendant mayalso submit documentary evidence tending to support the allegationsof the motion.
(b) The prosecutor may:
(1) file with the court an answer denying or admitting any or allof the allegations of the motion; and
(2) submit documentary evidence tending to refute theallegations.
(c) After all papers of both parties have been filed, and after alldocumentary evidence has been submitted, the court shall determinewhether, under subsections (d) and (e) of this section, a hearing isnecessary to resolve questions of fact.
(d) The court shall grant the motion without conducting a hearingonly if:
(1) the motion alleges a ground constituting a legal basis for themotion under section 4 of this chapter;
(2) the ground, if expressly or impliedly based upon theexistence or occurrence of facts, is supported by swornallegations of all facts essential to support the motion; and
(3) the sworn allegations of fact essential to support the motionare admitted as true by the prosecutor or are conclusivelyestablished by documentary evidence.
(e) The court may deny the motion without conducting a hearingonly if:
(1) the motion does not allege a ground constituting a legalbasis for the motion under section 4 of this chapter;
(2) the motion is expressly or impliedly based upon theexistence or occurrence of facts, and the motion does notcontain sworn allegations supporting all the essential facts; or
(3) an allegation of fact essential to support the motion isconclusively refuted by documentary evidence.
(f) If a hearing is necessary to resolve questions of fact, the courtshall conduct a hearing and make findings of fact essential to thedetermination of the motion. The defendant has a right to be presentand represented by counsel at the hearing but may waive this right.The defendant has the burden of proving by a preponderance of the
evidence every fact essential to support the motion.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-9
Joinder of offenses or defendants
Sec. 9. (a) Two (2) or more offenses may be joined in the sameindictment or information, with each offense stated in a separatecount, when the offenses:
(1) are of the same or similar character, even if not part of asingle scheme or plan; or
(2) are based on the same conduct or on a series of actsconnected together or constituting parts of a single scheme orplan.
(b) Two (2) or more defendants can be joined in the sameindictment or information when:
(1) each defendant is charged with each offense included;
(2) each of the defendants is charged as a conspirator or partyto the commission of the offense and some of the defendants arealso charged with one (1) or more offenses alleged to be infurtherance of the conspiracy or common scheme or plan;however, a party to the commission of an offense or conspiratorneed not be designated as such in the indictment or information;or
(3) conspiracy is not charged and not all of the defendants arecharged in each count, if it is alleged in the indictment orinformation that the offenses charged:
(A) were part of a common scheme or plan; or
(B) were so closely connected in respect to time, place, andoccasion that it would be difficult to separate proof of one (1)charge from proof of the others.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-10
Motions; joinder of offenses; dismissal of offense joinable for trialor of related offenses; requisites; orders
Sec. 10. (a) When a defendant has been charged with two (2) ormore offenses in two (2) or more indictments or informations and theoffenses could be joined in the same indictment or information undersection 9(a)(1) of this chapter, the court, upon motion of thedefendant, may order that the indictments or informations be joinedfor trial. Such motion shall be made before commencement of trialon either of the offenses charged.
(b) When a defendant has been charged with two (2) or moreoffenses in two (2) or more indictments or informations and theoffenses could have been joined in the same indictment orinformation under section (9)(a)(2) of this chapter, the court, uponmotion of the defendant or the prosecuting attorney, or on its ownmotion, shall join for trial all of such indictments or informationsunless the court, in the interests of justice, orders that one (1) ormore of such offenses shall be tried separately. Such motion shall be
made before commencement of trial on either of the offensescharged.
(c) A defendant who has been tried for one (1) offense maythereafter move to dismiss an indictment or information for anoffense which could have been joined for trial with the prior offensesunder section 9 of this chapter. The motion to dismiss shall be madeprior to the second trial, and shall be granted if the prosecution isbarred by reason of the former prosecution.
(d) A defendant who has been sentenced on a plea of guilty to one(1) offense may move to dismiss an indictment or information for arelated offense. The motion shall be granted if the plea of guilty wasentered on the basis of a plea agreement in which the prosecutoragreed to seek or not to oppose dismissal of other related offenses ornot to prosecute other potential related offenses.
(e) Subject to the provisions of section 11(a) of this chapter, two(2) or more offenses which are within the jurisdiction of the samecourt and which could have been joined in one (1) prosecutionconstitute related offenses.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-11
Severance of offenses or separate trial of defendants joined
Sec. 11. (a) Whenever two (2) or more offenses have been joinedfor trial in the same indictment or information solely on the groundthat they are of the same or similar character, the defendant shallhave a right to a severance of the offenses. In all other cases thecourt, upon motion of the defendant or the prosecutor, shall grant aseverance of offenses whenever the court determines that severanceis appropriate to promote a fair determination of the defendant's guiltor innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish theevidence and apply the law intelligently as to each offense.
(b) Whenever two (2) or more defendants have been joined fortrial in the same indictment or information and one (1) or moredefendants move for a separate trial because another defendant hasmade an out-of-court statement which makes reference to the movingdefendant but is not admissible as evidence against him, the courtshall require the prosecutor to elect:
(1) a joint trial at which the statement is not admitted intoevidence;
(2) a joint trial at which the statement is admitted into evidenceonly after all references to the moving defendant have beeneffectively deleted; or
(3) a separate trial for the moving defendant.
In all other cases, upon motion of the defendant or the prosecutor, thecourt shall order a separate trial of defendants whenever the courtdetermines that a separate trial is necessary to protect a defendant'sright to a speedy trial or is appropriate to promote a fair
determination of the guilt or innocence of a defendant.
(c) The court may order the prosecutor to disclose in camera anyinformation concerning statements made by the defendants which theprosecutor intends to introduce in evidence at the trial if thisinformation would assist the court in ruling on a motion for aseparate trial.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-12
Motion for severance or separate trial; time; waiver or bar
Sec. 12. (a) A defendant's motion for severance of crimes ormotion for a separate trial must be made before commencement oftrial, except that the motion may be made before or at the close of allthe evidence during trial if based upon a ground not previouslyknown. The right to severance of offenses or separate trial is waivedby failure to make the motion at the appropriate time.
(b) If a defendant's pretrial motion for severance of offenses ormotion for a separate trial is overruled, the motion may be renewedon the same grounds before or at the close of all the evidence duringtrial. The right to severance of offenses or separate trial is waived byfailure to renew the motion.
(c) If a defendant's motion for severance of offenses or separatetrial is granted during the trial, the granting of the motion shall notbar a subsequent trial of that defendant on the offenses charged.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-13
Motion to dismiss by prosecuting attorney
Sec. 13. (a) Upon motion of the prosecuting attorney, the courtshall order the dismissal of the indictment or information. Themotion may be made at any time before sentencing and may be madeon the record or in writing. The motion shall state the reason fordismissal.
(b) In any case where an order sustaining a motion to dismisswould otherwise constitute a bar to further prosecution of the crimecharged, unless the defendant objects to dismissal, the granting of themotion does not bar a subsequent trial of the defendant on theoffense charged.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,P.L.204, SEC.22.
IC 35-34-1-14
Pleading special matters; sufficiency
Sec. 14. In any indictment or information, an avermentsubstantially in compliance with the provisions of this section shallbe sufficient.
(a) The age of the defendant or the victim need not be alleged,except where the age of the defendant or the victim is an essentialelement of the offense charged.
(b) Averments as to any money or bills or notes or postal orders
issued by any lawful authority and intended to pass and circulate asmoney are sufficient to be alleged simply as money without furtheridentification.
(c) It is sufficient to describe a written instrument by any name ordesignation by which it is usually known or to aver generally thecontents of such instrument.
(d) Averments of dates and numbers may be by words or figuresor both.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-15
Incorrect name of defendant immaterial
Sec. 15. (a) If the stated name of the defendant in the indictmentor information is incorrect:
(1) this defect shall not be a ground for dismissal of theindictment or information; and
(2) any variance between the allegations and the proof of thedefendant's name shall not be considered material.
(b) If at any time during the proceedings the true name of thedefendant becomes known, the court shall order the indictment orinformation amended to show both the name by which the defendantwas first charged and the name later alleged to be true.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-16
Perjury; requisites
Sec. 16. (a) In an indictment or information for perjury, it isnecessary to set forth only:
(1) the substance of the controversy or the matter in respect towhich the alleged offense was committed; and
(2) in what court or before whom the false statement was made.
It is not necessary to set forth any part of any record or proceeding,or the commission or authority of the court or person before whomthe perjury was allegedly committed.
(b) In an indictment or information for perjury, in swearing to anywritten instrument, it is necessary to set forth only that part of theinstrument alleged to have been falsely sworn to, and to negative thesame, with the name of the officer or court before whom theinstrument was sworn.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-17
Forgery; misdescription of instrument destroyed or withheld bydefendant immaterial
Sec. 17. When an instrument which is the subject of an indictmentor information for forgery has been destroyed, or is withheld by theact or procurement of the defendant, and the fact of the destructionor withholding is alleged in the indictment or information, andestablished at trial, the misdescription of the instrument isimmaterial.As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-18
Names of owners of property
Sec. 18. The indictment or information for an offense which wascommitted upon or in relation to any property belonging to partners,or to several joint owners, or property which, when the offense wascommitted, was in possession of a bailee or tenant, is sufficient if italleges the ownership of the property to be in the name of:
(1) the partnership or any partner;
(2) an owner;
(3) a bailor;
(4) a bailee; or
(5) a tenant.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-19
Rules of construction
Sec. 19. The words used in an indictment or information shall beconstrued using their ordinary and common meaning, except wordsand phrases defined by law, which are to be construed according totheir legal meaning.
As added by Acts 1981, P.L.298, SEC.3.