CHAPTER 4. STANDARD OF PROOF AND BARS TO PROSECUTION
IC 35-41-4
Chapter 4. Standard of Proof and Bars to Prosecution
IC 35-41-4-1
Standard of proof; insanity defense
Sec. 1. (a) A person may be convicted of an offense only if hisguilt is proved beyond a reasonable doubt.
(b) Notwithstanding subsection (a), the burden of proof is on thedefendant to establish the defense of insanity (IC 35-41-3-6) by apreponderance of the evidence.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,P.L.340, SEC.16; Acts 1978, P.L.145, SEC.9.
IC 35-41-4-2
Periods of limitation
Sec. 2. (a) Except as otherwise provided in this section, aprosecution for an offense is barred unless it is commenced:
(1) within five (5) years after the commission of the offense, inthe case of a Class B, Class C, or Class D felony; or
(2) within two (2) years after the commission of the offense, inthe case of a misdemeanor.
(b) A prosecution for a Class B or Class C felony that wouldotherwise be barred under this section may be commenced withinone (1) year after the earlier of the date on which the state:
(1) first discovers evidence sufficient to charge the offenderwith the offense through DNA (deoxyribonucleic acid) analysis;or
(2) could have discovered evidence sufficient to charge theoffender with the offense through DNA (deoxyribonucleic acid)analysis by the exercise of due diligence.
(c) A prosecution for a Class A felony may be commenced at anytime.
(d) A prosecution for murder may be commenced:
(1) at any time; and
(2) regardless of the amount of time that passes between:
(A) the date a person allegedly commits the elements ofmurder; and
(B) the date the alleged victim of the murder dies.
(e) A prosecution for the following offenses is barred unlesscommenced before the date that the alleged victim of the offensereaches thirty-one (31) years of age:
(1) IC 35-42-4-3(a) (Child molesting).
(2) IC 35-42-4-5 (Vicarious sexual gratification).
(3) IC 35-42-4-6 (Child solicitation).
(4) IC 35-42-4-7 (Child seduction).
(5) IC 35-46-1-3 (Incest).
(f) A prosecution for forgery of an instrument for payment ofmoney, or for the uttering of a forged instrument, underIC 35-43-5-2, is barred unless it is commenced within five (5) yearsafter the maturity of the instrument. (g) If a complaint, indictment, or information is dismissed becauseof an error, defect, insufficiency, or irregularity, a new prosecutionmay be commenced within ninety (90) days after the dismissal evenif the period of limitation has expired at the time of dismissal, or willexpire within ninety (90) days after the dismissal.
(h) The period within which a prosecution must be commenceddoes not include any period in which:
(1) the accused person is not usually and publicly resident inIndiana or so conceals himself or herself that process cannot beserved;
(2) the accused person conceals evidence of the offense, andevidence sufficient to charge the person with that offense isunknown to the prosecuting authority and could not have beendiscovered by that authority by exercise of due diligence; or
(3) the accused person is a person elected or appointed to officeunder statute or constitution, if the offense charged is theft orconversion of public funds or bribery while in public office.
(i) For purposes of tolling the period of limitation only, aprosecution is considered commenced on the earliest of these dates:
(1) The date of filing of an indictment, information, orcomplaint before a court having jurisdiction.
(2) The date of issuance of a valid arrest warrant.
(3) The date of arrest of the accused person by a lawenforcement officer without a warrant, if the officer hasauthority to make the arrest.
(j) A prosecution is considered timely commenced for any offenseto which the defendant enters a plea of guilty, notwithstanding thatthe period of limitation has expired.
(k) The following apply to the specified offenses:
(1) A prosecution for an offense under IC 30-2-9-7(b) (misuseof funeral trust funds) is barred unless commenced within five(5) years after the date of death of the settlor (as described inIC 30-2-9).
(2) A prosecution for an offense under IC 30-2-10-9(b) (misuseof funeral trust funds) is barred unless commenced within five(5) years after the date of death of the settlor (as described inIC 30-2-10).
(3) A prosecution for an offense under IC 30-2-13-38(f) (misuseof funeral trust or escrow account funds) is barred unlesscommenced within five (5) years after the date of death of thepurchaser (as defined in IC 30-2-13-9).
(l) A prosecution for an offense under IC 23-14-48-9 is barredunless commenced within five (5) years after the earlier of the dateon which the state:
(1) first discovers evidence sufficient to charge the offenderwith the offense; or
(2) could have discovered evidence sufficient to charge theoffender with the offense by the exercise of due diligence.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,P.L.340, SEC.17; P.L.309-1985, SEC.2; P.L.232-1993, SEC.3;
P.L.9-2000, SEC.1; P.L.48-2001, SEC.1; P.L.1-2002, SEC.149;P.L.97-2004, SEC.124; P.L.6-2006, SEC.7, P.L.140-2006, SEC.30,and P.L.173-2006, SEC.30; P.L.143-2009, SEC.47.
IC 35-41-4-3
When prosecution barred for same offense
Sec. 3. (a) A prosecution is barred if there was a formerprosecution of the defendant based on the same facts and forcommission of the same offense and if:
(1) the former prosecution resulted in an acquittal or aconviction of the defendant (A conviction of an includedoffense constitutes an acquittal of the greater offense, even ifthe conviction is subsequently set aside.); or
(2) the former prosecution was terminated after the jury wasimpaneled and sworn or, in a trial by the court without a jury,after the first witness was sworn, unless (i) the defendantconsented to the termination or waived, by motion to dismiss orotherwise, his right to object to the termination, (ii) it wasphysically impossible to proceed with the trial in conformitywith law, (iii) there was a legal defect in the proceedings thatwould make any judgment entered upon a verdict reversible asa matter of law, (iv) prejudicial conduct, in or outside thecourtroom, made it impossible to proceed with the trial withoutinjustice to either the defendant or the state, (v) the jury wasunable to agree on a verdict, or (vi) false statements of a juroron voir dire prevented a fair trial.
(b) If the prosecuting authority brought about any of thecircumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of thissection, with intent to cause termination of the trial, anotherprosecution is barred.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,P.L.340, SEC.18.
IC 35-41-4-4
When prosecution barred for different offense
Sec. 4. (a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for adifferent offense or for the same offense based on differentfacts.
(2) The former prosecution resulted in an acquittal or aconviction of the defendant or in an improper termination undersection 3 of this chapter.
(3) The instant prosecution is for an offense with which thedefendant should have been charged in the former prosecution.
(b) A prosecution is not barred under this section if the offense onwhich it is based was not consummated when the trial under theformer prosecution began.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,P.L.340, SEC.19.
IC 35-41-4-5
Former prosecution in another jurisdiction a bar
Sec. 5. In a case in which the alleged conduct constitutes anoffense within the concurrent jurisdiction of Indiana and anotherjurisdiction, a former prosecution in any other jurisdiction is a bar toa subsequent prosecution for the same conduct in Indiana, if theformer prosecution resulted in an acquittal or a conviction of thedefendant or in an improper termination under section 3 of thischapter.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,P.L.340, SEC.20.
IC 35-41-4-6
Invalid or fraudulently procured prosecution not a bar
Sec. 6. A former prosecution is not a bar under section 3, 4, or 5of this chapter if:
(1) it was before a court that lacked jurisdiction over thedefendant or the offense;
(2) it was procured by the defendant without the knowledge ofthe prosecuting authority and with intent to avoid a more severesentence that might otherwise have been imposed; or
(3) it resulted in a conviction that was set aside, reversed,vacated, or held invalid in a subsequent proceeding, unless thedefendant was adjudged not guilty or ordered discharged.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,P.L.340, SEC.21.