CHAPTER 4. EVIDENCE AND PROTECTION OF CERTAIN WITNESSES
IC 35-37-4
Chapter 4. Evidence and Protection of Certain Witnesses
IC 35-37-4-1
Competency of witness
Sec. 1. A person who is competent to testify in civil actions is alsocompetent to testify in criminal proceedings.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-4-2
Credibility; general moral character
Sec. 2. In all questions affecting the credibility of a witness, hisgeneral moral character may be given in evidence.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-4-3
Depositions
Sec. 3. The state and the defendant may take and use depositionsof witnesses in accordance with the Indiana Rules of Trial Procedure.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-4-4
Sex crimes; admissibility of evidence of past sexual conduct;procedure
Sec. 4. (a) In a prosecution for a sex crime as defined inIC 35-42-4:
(1) evidence of the victim's past sexual conduct;
(2) evidence of the past sexual conduct of a witness other thanthe accused;
(3) opinion evidence of the victim's past sexual conduct;
(4) opinion evidence of the past sexual conduct of a witnessother than the accused;
(5) reputation evidence of the victim's past sexual conduct; and
(6) reputation evidence of the past sexual conduct of a witnessother than the accused;
may not be admitted, nor may reference be made to this evidence inthe presence of the jury, except as provided in this chapter.
(b) Notwithstanding subsection (a), evidence:
(1) of the victim's or a witness's past sexual conduct with thedefendant;
(2) which in a specific instance of sexual activity shows thatsome person other than the defendant committed the act uponwhich the prosecution is founded; or
(3) that the victim's pregnancy at the time of trial was notcaused by the defendant;
may be introduced if the judge finds, under the procedure providedin subsection (c) of this section, that it is material to a fact at issue inthe case and that its inflammatory or prejudicial nature does notoutweigh its probative value.
(c) If the defendant or the state proposes to offer evidence
described in subsection (b) of this section, the following proceduremust be followed:
(1) The defendant or the state shall file a written motion not lessthan ten (10) days before trial stating that it has an offer ofproof concerning evidence described in subsection (b) and itsrelevancy to the case. This motion shall be accompanied by anaffidavit in which the offer of proof is stated.
(2) If the court finds that the offer of proof is sufficient, thecourt shall order a hearing out of the presence of the jury, andat the hearing allow the questioning of the victim or witnessregarding the offer of proof made by the defendant or the state.
At the conclusion of the hearing, if the court finds that evidenceproposed to be offered by the defendant or the state regarding thesexual conduct of the victim or witness is admissible undersubsection (b) of this section, the court shall make an order statingwhat evidence may be introduced by the defendant or the state andthe nature of the questions to be permitted. The defendant or the statemay then offer evidence under the order of the court.
(d) If new information is discovered within ten (10) days beforetrial or during the course of the trial that might make evidencedescribed in subsection (b) of this chapter admissible, the judge shallorder a hearing out of the presence of the jury to determine whetherthe proposed evidence is admissible under this chapter.
(e) This section does not limit the right of either the state or theaccused to impeach credibility by a showing of prior felonyconvictions.
(f) If:
(1) a defendant files a motion under subsection (c)(1)concerning evidence described in subsection (b)(3); and
(2) the state acknowledges that the victim's pregnancy is not dueto the conduct of the defendant;
the court shall instruct the jury that the victim's pregnancy is not dueto the conduct of the defendant. However, other evidence concerningthe pregnancy may not be admitted, and further reference to thepregnancy may not be made in the presence of the jury.
As added by Acts 1981, P.L.298, SEC.6. Amended by P.L.322-1983,SEC.1.
IC 35-37-4-5
Evidence unlawfully obtained by officer in good faith; exclusion
Sec. 5. (a) In a prosecution for a crime or a proceeding to enforcean ordinance or a statute defining an infraction, the court may notgrant a motion to exclude evidence on the grounds that the search orseizure by which the evidence was obtained was unlawful if theevidence was obtained by a law enforcement officer in good faith.
(b) For purposes of this section, evidence is obtained by a lawenforcement officer in good faith if:
(1) it is obtained pursuant to:
(A) a search warrant that was properly issued upon adetermination of probable cause by a neutral and detached
magistrate, that is free from obvious defects other thannondeliberate errors made in its preparation, and that wasreasonably believed by the law enforcement officer to bevalid; or
(B) a state statute, judicial precedent, or court rule that islater declared unconstitutional or otherwise invalidated; and
(2) the law enforcement officer, at the time he obtains theevidence, has satisfied applicable minimum basic trainingrequirements established by rules adopted by the lawenforcement training board under IC 5-2-1-9.
(c) This section does not affect the right of a person to bring acivil action against a law enforcement officer or a governmentalentity to recover damages for the violation of his rights by anunlawful search and seizure.
As added by P.L.323-1983, SEC.1.
IC 35-37-4-6
Application of section; "protected person" defined; admissibilityof statement or videotape; notice to defendant; jury instructions
Sec. 6. (a) This section applies to a criminal action involving thefollowing offenses where the victim is a protected person undersubsection (c)(1) or (c)(2):
(1) Sex crimes (IC 35-42-4).
(2) Battery upon a child (IC 35-42-2-1(a)(2)(B)).
(3) Kidnapping and confinement (IC 35-42-3).
(4) Incest (IC 35-46-1-3).
(5) Neglect of a dependent (IC 35-46-1-4).
(6) Human and sexual trafficking crimes (IC 35-42-3.5).
(7) An attempt under IC 35-41-5-1 for an offense listed insubdivisions (1) through (6).
(b) This section applies to a criminal action involving thefollowing offenses where the victim is a protected person undersubsection (c)(3):
(1) Exploitation of a dependent or endangered adult (IC35-46-1-12).
(2) A sex crime (IC 35-42-4).
(3) Battery (IC 35-42-2-1).
(4) Kidnapping, confinement, or interference with custody (IC35-42-3).
(5) Home improvement fraud (IC 35-43-6).
(6) Fraud (IC 35-43-5).
(7) Identity deception (IC 35-43-5-3.5).
(8) Synthetic identity deception (IC 35-43-5-3.8).
(9) Theft (IC 35-43-4-2).
(10) Conversion (IC 35-43-4-3).
(11) Neglect of a dependent (IC 35-46-1-4).
(12) Human and sexual trafficking crimes (IC 35-42-3.5).
(c) As used in this section, "protected person" means:
(1) a child who is less than fourteen (14) years of age;
(2) an individual with a mental disability who has a disability
attributable to an impairment of general intellectual functioningor adaptive behavior that:
(A) is manifested before the individual is eighteen (18) yearsof age;
(B) is likely to continue indefinitely;
(C) constitutes a substantial impairment of the individual'sability to function normally in society; and
(D) reflects the individual's need for a combination andsequence of special, interdisciplinary, or generic care,treatment, or other services that are of lifelong or extendedduration and are individually planned and coordinated; or
(3) an individual who is:
(A) at least eighteen (18) years of age; and
(B) incapable by reason of mental illness, mental retardation,dementia, or other physical or mental incapacity of:
(i) managing or directing the management of theindividual's property; or
(ii) providing or directing the provision of self-care.
(d) A statement or videotape that:
(1) is made by a person who at the time of trial is a protectedperson;
(2) concerns an act that is a material element of an offenselisted in subsection (a) or (b) that was allegedly committedagainst the person; and
(3) is not otherwise admissible in evidence;
is admissible in evidence in a criminal action for an offense listed insubsection (a) or (b) if the requirements of subsection (e) are met.
(e) A statement or videotape described in subsection (d) isadmissible in evidence in a criminal action listed in subsection (a) or(b) if, after notice to the defendant of a hearing and of the defendant'sright to be present, all of the following conditions are met:
(1) The court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the protected person;
that the time, content, and circumstances of the statement orvideotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness forone (1) of the following reasons:
(i) From the testimony of a psychiatrist, physician, orpsychologist, and other evidence, if any, the court findsthat the protected person's testifying in the physicalpresence of the defendant will cause the protected personto suffer serious emotional distress such that the protectedperson cannot reasonably communicate.
(ii) The protected person cannot participate in the trial formedical reasons.
(iii) The court has determined that the protected person isincapable of understanding the nature and obligation of an
oath.
(f) If a protected person is unavailable to testify at the trial for areason listed in subsection (e)(2)(B), a statement or videotape maybe admitted in evidence under this section only if the protectedperson was available for cross-examination:
(1) at the hearing described in subsection (e)(1); or
(2) when the statement or videotape was made.
(g) A statement or videotape may not be admitted in evidenceunder this section unless the prosecuting attorney informs thedefendant and the defendant's attorney at least ten (10) days beforethe trial of:
(1) the prosecuting attorney's intention to introduce thestatement or videotape in evidence; and
(2) the content of the statement or videotape.
(h) If a statement or videotape is admitted in evidence under thissection, the court shall instruct the jury that it is for the jury todetermine the weight and credit to be given the statement orvideotape and that, in making that determination, the jury shallconsider the following:
(1) The mental and physical age of the person making thestatement or videotape.
(2) The nature of the statement or videotape.
(3) The circumstances under which the statement or videotapewas made.
(4) Other relevant factors.
(i) If a statement or videotape described in subsection (d) isadmitted into evidence under this section, a defendant may introducea:
(1) transcript; or
(2) videotape;
of the hearing held under subsection (e)(1) into evidence at trial.
As added by P.L.180-1984, SEC.1. Amended by P.L.316-1985,SEC.1; P.L.37-1990, SEC.22; P.L.23-1993, SEC.161; P.L.142-1994,SEC.7; P.L.43-2004, SEC.1; P.L.2-2005, SEC.120; P.L.173-2006,SEC.48; P.L.99-2007, SEC.207; P.L.137-2009, SEC.10.
IC 35-37-4-7
Pecuniary loss or gain; proof
Sec. 7. Whenever an element of an offense involves a pecuniaryloss or a pecuniary gain, then the element shall be established byproof of the fair market value of the property at the time of theoffense.
As added by P.L.320-1985, SEC.2.
IC 35-37-4-8
Application of section; testimony of protected person; closedcircuit television; videotape; notice to defendant
Sec. 8. (a) This section applies to a criminal action under thefollowing:
(1) Sex crimes (IC 35-42-4). (2) Battery upon a child (IC 35-42-2-1(a)(2)(B)).
(3) Kidnapping and confinement (IC 35-42-3).
(4) Incest (IC 35-46-1-3).
(5) Neglect of a dependent (IC 35-46-1-4).
(6) Human and sexual trafficking crimes (IC 35-42-3.5).
(7) An attempt under IC 35-41-5-1 for an offense listed insubdivisions (1) through (6).
(b) As used in this section, "protected person" has the meaning setforth in section 6 of this chapter.
(c) On the motion of the prosecuting attorney, the court may orderthat the testimony of a protected person be taken in a room other thanthe courtroom, and that the questioning of the protected person bythe prosecution and the defense be transmitted using a two-wayclosed circuit television arrangement that:
(1) allows the protected person to see the accused and the trierof fact; and
(2) allows the accused and the trier of fact to see and hear theprotected person.
(d) On the motion of the prosecuting attorney or the defendant,the court may order that the testimony of a protected person bevideotaped for use at trial. The videotaping of the testimony of aprotected person under this subsection must meet the requirementsof subsection (c).
(e) The court may not make an order under subsection (c) or (d)unless:
(1) the testimony to be taken is the testimony of a protectedperson who:
(A) is the alleged victim of an offense listed in subsection (a)for which the defendant is being tried or is a witness in atrial for an offense listed in subsection (a); and
(B) is found by the court to be a protected person whoshould be permitted to testify outside the courtroom because:
(i) the court finds from the testimony of a psychiatrist,physician, or psychologist and any other evidence that theprotected person's testifying in the physical presence of thedefendant would cause the protected person to sufferserious emotional harm and the court finds that theprotected person could not reasonably communicate in thephysical presence of the defendant to the trier of fact;
(ii) a physician has certified that the protected personcannot be present in the courtroom for medical reasons; or
(iii) evidence has been introduced concerning the effect ofthe protected person's testifying in the physical presenceof the defendant, and the court finds that it is more likelythan not that the protected person's testifying in thephysical presence of the defendant creates a substantiallikelihood of emotional or mental harm to the protectedperson;
(2) the prosecuting attorney has informed the defendant and thedefendant's attorney of the intention to have the protected
person testify outside the courtroom; and
(3) the prosecuting attorney informed the defendant and thedefendant's attorney under subdivision (2) at least ten (10) daysbefore the trial of the prosecuting attorney's intention to havethe protected person testify outside the courtroom.
(f) If the court makes an order under subsection (c), only thefollowing persons may be in the same room as the protected personduring the protected person's testimony:
(1) A defense attorney if:
(A) the defendant is represented by the defense attorney; and
(B) the prosecuting attorney is also in the same room.
(2) The prosecuting attorney if:
(A) the defendant is represented by a defense attorney; and
(B) the defense attorney is also in the same room.
(3) Persons necessary to operate the closed circuit televisionequipment.
(4) Persons whose presence the court finds will contribute to theprotected person's well-being.
(5) A court bailiff or court representative.
(g) If the court makes an order under subsection (d), only thefollowing persons may be in the same room as the protected personduring the protected person's videotaped testimony:
(1) The judge.
(2) The prosecuting attorney.
(3) The defendant's attorney (or the defendant, if the defendantis not represented by an attorney).
(4) Persons necessary to operate the electronic equipment.
(5) The court reporter.
(6) Persons whose presence the court finds will contribute to theprotected person's well-being.
(7) The defendant, who can observe and hear the testimony ofthe protected person with the protected person being able toobserve or hear the defendant. However, if the defendant is notrepresented by an attorney, the defendant may question theprotected person.
(h) If the court makes an order under subsection (c) or (d), onlythe following persons may question the protected person:
(1) The prosecuting attorney.
(2) The defendant's attorney (or the defendant, if the defendantis not represented by an attorney).
(3) The judge.
As added by P.L.203-1986, SEC.2. Amended by P.L.37-1990,SEC.23; P.L.142-1994, SEC.8; P.L.2-2005, SEC.121; P.L.173-2006,SEC.49.
IC 35-37-4-9
Certificates of title; certified copies as prima facie evidence of title
Sec. 9. (a) As used in this section, "certified copy of a certificateof title" means a document that is:
(1) a copy of a certificate of title for a motor vehicle, by
whatever name designated, that is issued by the bureau of motorvehicles or a governmental entity in another state;
(2) prepared from a record of the governmental entity issuingthe certificate of title; and
(3) certified by the officer having legal custody of the recorddescribed in subdivision (2) or the officer's deputy.
(b) In a criminal proceeding, a certified copy of a certificate oftitle is prima facie evidence of the ownership of a motor vehicle.
As added by P.L.136-1987, SEC.3.
IC 35-37-4-10
Repealed
(Repealed by P.L.1-1991, SEC.192.)
IC 35-37-4-11
Safeguarding victim from contact with accused and relatives ofaccused; waiting areas
Sec. 11. (a) During court proceedings a court shall providesafeguards necessary to minimize the contact of the victim of anoffense or delinquent act with:
(1) a defendant accused of the offense or a juvenile accused ofcommitting the delinquent act; and
(2) the relatives and friends of:
(A) a defendant accused of the offense; or
(B) a juvenile accused of committing the delinquent act.
(b) The safeguards required under subsection (a) may includecourthouse waiting areas for victims that are separated from thosewaiting areas specified for defendants, juveniles alleged to bedelinquent children, and the relatives and friends of accused persons.
(c) A county is not required under this section, or by mandate ofa court, to expend any funds to change the physical configuration ofa courthouse in the county to meet the requirements of this section.
As added by P.L.36-1990, SEC.10.
IC 35-37-4-12
Physical safety of victim or victim's family in danger; exclusion ofevidence; disclosure to court
Sec. 12. (a) If the physical safety of a victim or the victim'simmediate family is in danger, a victim may not be required to givepersonal information during the course of sworn testimony regardingthe following:
(1) Telephone numbers.
(2) Place of employment.
(3) Residential address.
(b) In any hearing to determine the introduction into evidence ofthe personal information specified in subsection (a), the court, if thecourt finds an actual danger to the victim or the victim's immediatefamily exists, may require the party possessing the personalinformation to disclose the personal information to the court for incamera review.As added by P.L.1-1991, SEC.193.
IC 35-37-4-13
"Forensic DNA analysis" defined; admissibility
Sec. 13. (a) As used in this section, "forensic DNA analysis"means an identification process in which the unique genetic code ofan individual that is carried by the individual's deoxyribonucleic acid(DNA) is compared to genetic codes carried in DNA found in bodilysubstance samples obtained by a law enforcement agency in theexercise of the law enforcement agency's investigative function.
(b) In a criminal trial or hearing, the results of forensic DNAanalysis are admissible in evidence without antecedent experttestimony that forensic DNA analysis provides a trustworthy andreliable method of identifying characteristics in an individual'sgenetic material.
As added by P.L.1-1991, SEC.194.
IC 35-37-4-14
Evidence of a previous battery
Sec. 14. (a) This section applies even if no criminal charges werefiled concerning the act that is the basis of the evidence of a previousbattery.
(b) As used in this section, "evidence of a previous battery" meansevidence that a person charged with a crime described in subsection(c)(1) through (c)(3) committed a prior unrelated act of battery orattempted battery on the victim of a crime described in subsection(c)(1) through (c)(3) within five (5) years before the person allegedlycommitted the crime described in subsection (c)(1) through (c)(3).
(c) In a prosecution for:
(1) battery (IC 35-42-2-1);
(2) aggravated battery (IC 35-42-2-1.5);
(3) murder (IC 35-42-1-1); or
(4) voluntary manslaughter (IC 35-42-1-3);
evidence of a previous battery is admissible into evidence in thestate's case-in-chief for purposes of proving motive, intent, identity,or common scheme and design.
(d) If the state proposes to offer evidence described in subsection(b), the following procedure must be followed:
(1) The state shall file a written motion not less than ten (10)days before trial stating that the state has an offer of proofconcerning evidence described in subsection (b) and therelevancy of the evidence to the case. The motion must beaccompanied by an affidavit in which the offer of proof isstated.
(2) If the court finds that the offer of proof is sufficient, thecourt shall order a hearing out of the presence of the jury. At thehearing, the court shall allow the questioning of the victim orwitness regarding the offer of proof made by the state.
At the conclusion of the hearing, if the court finds that evidenceproposed to be offered by the state is admissible, the court shall make
an order stating what evidence may be introduced by the state and thenature of the questions to be permitted. The state may then offerevidence under the order of the court.
(e) This section shall not be construed to limit the admissibility ofevidence of a previous battery in any civil or criminal proceeding.
As added by P.L.213-1991, SEC.1.
IC 35-37-4-15
Child molestation; evidence of prior acts
Sec. 15. (a) In a prosecution for child molesting underIC 35-42-4-3, a prosecution for incest under IC 35-46-1-3, or aprosecution for an attempt or a conspiracy to commit child molestingor incest, evidence that the defendant has committed another crimeor act of child molesting or incest or attempted or conspired tocommit another crime or act of child molesting or incest:
(1) against the same victim; or
(2) that involves a similar crime or act of child molesting orincest against a different victim;
is admissible.
(b) If the state proposes to offer evidence described undersubsection (a), the state must disclose the evidence to the defendant,including statements made by witnesses or a summary of thesubstance of any testimony that is expected to be offered at thedefendant's trial:
(1) at least fifteen (15) days before the date the defendant's trialis scheduled to begin; or
(2) at a later date as determined by the court for good cause.
(c) The court shall hold a hearing out of the presence of the juryregarding the admissibility of the evidence described undersubsection (a). Even if the court determines that the evidence isrelevant, the evidence may be excluded if the probative value of theevidence is substantially outweighed by:
(1) the danger of:
(A) unfair prejudice;
(B) confusion of the issues; or
(C) misleading the jury; or
(2) considerations of:
(A) undue delay;
(B) waste of time; or
(C) needless presentation of cumulative evidence.
However, if the court finds that all or some of the evidence isadmissible, the court shall enter an order stating what evidence maybe introduced.
(d) This section may not be construed to limit the right tointroduce evidence at a trial that would otherwise be admissible toprove any of the following:
(1) Motive.
(2) Opportunity.
(3) Intent.
(4) Plan. (5) Knowledge.
(6) Identity.
(7) Absence of mistake or accident.
As added by P.L.232-1993, SEC.2.