CHAPTER 7. CONTINUANCES
IC 35-36-7
Chapter 7. Continuances
IC 35-36-7-1
Motion by defendant; affidavit; grounds; requisite; contents
Sec. 1. (a) A motion by a defendant to postpone a trial because ofthe absence of evidence may be made only on affidavit showing:
(1) that the evidence is material;
(2) that due diligence has been used to obtain the evidence; and
(3) the location of the evidence.
(b) If a defendant's motion to postpone is because of the absenceof a witness, the affidavit required under subsection (a) must:
(1) show the name and address of the witness, if known;
(2) indicate the probability of procuring the witness's testimonywithin a reasonable time;
(3) show that the absence of the witness has not been procuredby the act of the defendant;
(4) state the facts to which the defendant believes the witnesswill testify, and include a statement that the defendant believesthese facts to be true; and
(5) state that the defendant is unable to prove the facts specifiedin accordance with subdivision (4) through the use of any otherwitness whose testimony can be as readily procured.
(c) The trial may not be postponed if:
(1) after a motion by the defendant to postpone because of theabsence of a witness, the prosecuting attorney admits that theabsent witness would testify to the facts as alleged by thedefendant in his affidavit in accordance with subsection (b)(4);or
(2) after a motion by the defendant to postpone because of theabsence of written or documentary evidence, the prosecutingattorney admits that the written or documentary evidence exists.
(d) A defendant must file an affidavit for a continuance not laterthan five (5) days before the date set for trial. If a defendant fails tofile an affidavit by this time, then he must establish, to thesatisfaction of the court, that he is not at fault for failing to file theaffidavit at an earlier date.
(e) If a motion for a continuance is based on the illness of thedefendant or of a witness, it must be accompanied by:
(1) oral testimony, given in open court; or
(2) a written statement;
of a physician or hospital official having the care or custody of thedefendant or witness, presenting the nature of the illness and theprobable duration of the person's incapacity to attend trial. Such awritten statement must be sworn to by the person making thestatement before an officer authorized to administer an oath. Thecourt may appoint a physician to examine the defendant or witnessand report to the court on the nature of the person's illness and of hisincapacity to attend trial. The court shall by order provide forcompensation for such a physician.As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-7-2
Motion by prosecuting attorney; absence of witness or written ordocumentary evidence; official statement; requisites
Sec. 2. (a) A prosecuting attorney may move to postpone the trialof a criminal cause because of the absence of a witness whose nameis endorsed on the indictment or information, if he makes an officialstatement:
(1) containing the requirements of subsections (b)(1) and (b)(2)of section 1 of this chapter;
(2) showing that the absence of the witness has not beenprocured by the act of the prosecuting attorney;
(3) stating the facts to which he believes the witness will testify,and include a statement that he believes these facts to be true;and
(4) stating that the prosecuting attorney is unable to prove thefacts specified in accordance with subdivision (3) through theuse of any other witness whose testimony can be as readilyprocured.
Upon request of the defendant the court shall order that theprosecuting attorney's motion and official statement be made inwriting.
(b) The trial may not be postponed if:
(1) after a motion by the prosecuting attorney because of theabsence of a witness, the defendant admits that the absentwitness would testify to the facts as alleged by the prosecutingattorney in his official statement in accordance with subsection(a)(3); or
(2) after a motion by the prosecuting attorney to postponebecause of the absence of written or documentary evidence, thedefendant admits that the written or documentary evidenceexists.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-7-3
Postponements; adverse impact upon certain children andendangered adults
Sec. 3. (a) This section applies to criminal actions for:
(1) an offense listed in IC 11-8-8-4.5(a);
(2) neglect of a dependent (IC 35-46-1-4);
(3) battery (IC 35-42-2-1) if the victim is:
(A) less than eighteen (18) years of age; or
(B) an endangered adult (as defined in IC 12-10-3-2); and
(4) attempts of the crimes listed in subdivisions (1) through (3).
(b) If a motion is made to postpone a trial or other courtproceeding that involves an offense listed in subsection (a), the courtshall consider whether a postponement will have an adverse impactupon an endangered adult (as defined in IC 12-10-3-2) or a child whois less than sixteen (16) years of age and who: (1) is the alleged victim of an offense listed in subsection (a);or
(2) will be a witness in the trial.
As added by P.L.203-1986, SEC.1. Amended by P.L.11-1987,SEC.33; P.L.169-2009, SEC.1.