IC 35-34-1-1 Commencement of prosecution; filing; sealing; violation
Sec. 1. (a) All prosecutions of crimes shall be brought in the name
of the state of Indiana. Any crime may be charged by indictment or
information.
(b) Except as provided in IC 12-15-23-6(d), all prosecutions of
crimes shall be instituted by the filing of an information or
indictment by the prosecuting attorney, in a court with jurisdiction
over the crime charged.
(c) Whenever an indictment or information is filed, the clerk of
the 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 or
his attorney.
(d) The court, upon motion of the prosecuting attorney, may order
that the indictment or information be sealed. If a court has sealed an
indictment or information, no person may disclose the fact that an
indictment or information is in existence or pending until the
defendant has been arrested or otherwise brought within the custody
of the court. However, any person may make any disclosure
necessarily incident to the arrest of the defendant. A violation of this
subsection 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 and
allege the commission of an offense by:
(1) stating the title of the action and the name of the court in
which the indictment or information is filed;
(2) stating the name of the offense in the words of the statute or
any 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 in
such a citation does not constitute grounds for reversal of a
conviction where the defendant was not otherwise misled as to
the nature of the charges against the defendant;
(4) setting forth the nature and elements of the offense charged
in plain and concise language without unnecessary repetition;
(5) stating the date of the offense with sufficient particularity to
show that the offense was committed within the period of
limitations applicable to that offense;
(6) stating the time of the offense as definitely as can be done
if time is of the essence of the offense;
(7) stating the place of the offense with sufficient particularity
to show that the offense was committed within the jurisdiction
of the court where the charge is to be filed;
(8) stating the place of the offense as definitely as can be done
if the place is of the essence of the offense; and
(9) stating the name of every defendant, if known, and if not
known, by designating the defendant by any name or
description by which he can be identified with reasonable
certainty.
(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 his
deputy and sworn to or affirmed by him or any other person.
(c) An indictment or information shall have stated upon it the
names of all the material witnesses. Other witnesses may afterwards
be subpoenaed by the state, but unless the name of a witness is stated
on the indictment or information, no continuance shall be granted to
the state due to the absence of the witness.
(d) The indictment or information shall be a plain, concise, and
definite written statement of the essential facts constituting the
offense charged. It need not contain a formal commencement, a
formal conclusion, or any other matter not necessary to the
statement. Presumptions of law and matters of which judicial notice
is 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 or
affirmation do present that AB, on the _________ day of
__________ 20____ at the county of _________ in the state of
Indiana (HERE SET FORTH THE OFFENSE CHARGED).
(f) The information may be substantially in the same form as the
indictment, substituting for the words, "the grand jury of the county
of _________, upon their oath or affirmation so present" the
following: "CD, being duly sworn on his oath or having affirmed,
says." It is not necessary in an information to state the reason why
the proceeding is by information rather than indictment.
(g) This section applies to a traffic offense (as defined in
IC 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; false
affirmation or verification
Sec. 2.4. (a) If an indictment, information, pleading, motion,
petition, probable cause affidavit, or other document is required to be
verified or sworn under oath before it is submitted to the court in a
criminal action, the document meets the requirements of the law as
a sworn document if the following form or a substantially similar
form is used:
I swear (affirm), under penalty of perjury as specified by
IC 35-44-2-1, that the foregoing (the following) representations
are true.
Signed __________________
(b) If a document complies with subsection (a), the swearing or
affirming need not be done before a notary or other officer
empowered to administer oaths.
(c) A person who makes a false affirmation or verification under
this 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 the
statute, increased because the person was previously convicted of the
offense, the state may seek to have the person sentenced to receive
the increased penalty by alleging, on a page separate from the rest of
the charging instrument, that the person was previously convicted of
the 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 been
returned or presented to a court as authorized by law has become
illegible or cannot be produced, the defendant may be tried using a
copy 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, dismiss
the indictment or information upon any of the following grounds:
(1) The indictment or information, or any count thereof, is
defective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity of
allegation in counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense
with sufficient certainty.
(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense
charged.
(7) The prosecution is barred by reason of a previous
prosecution.
(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 conviction
of the defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matter
of law.
(b) Except as otherwise provided, a motion under this section
shall 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 be
summarily 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 to
dismiss 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 or
renewed at any time before or during trial. A motion to dismiss based
upon lack of jurisdiction over the subject matter may be made at any
time.
(c) Upon the motion to dismiss, a defendant who is in a position
adequately to raise more than one (1) ground in support thereof shall
raise every ground upon which he intends to challenge the indictment
or information. A subsequent motion based upon a ground not
properly raised may be summarily denied. However, the court, in the
interest of justice and for good cause shown, may entertain and
dispose 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 the
defendant if the court determines that the indictment or
information may be cured by amendment under section 5 of this
chapter and the prosecuting attorney has moved for leave to
amend.
If the court grants the motion under subdivision (3) and grants the
prosecuting attorney leave to amend, any prior order imposing
conditions of release pending trial shall stand unless otherwise
modified or removed by order of the court.
(e) If the court grants a motion under subsection (a)(3) and the
prosecuting attorney informs the court on the record that the charges
will 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 in
force unless it is modified or removed by the court.
(f) An order of dismissal does not, of itself, constitute a bar to a
subsequent prosecution of the same crime or crimes except as
otherwise 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 the
commission of an offense may not be dismissed but may be amended
on motion by the prosecuting attorney at any time because of any
immaterial 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 provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the
acts, means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of
the action, or the statutory provision alleged to have been
violated;
(7) the failure to state the time or place at which the offense was
committed where the time or place is not of the essence of the
offense;
(8) the failure to state an amount of value or price of any matter
where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial
rights of the defendant.
(b) The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by the
prosecuting attorney, upon giving written notice to the defendant at
any 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 with
one (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 the
defendant. When the information or indictment is amended, it shall
be signed by the prosecuting attorney or a deputy prosecuting
attorney.
(c) Upon motion of the prosecuting attorney, the court may, at any
time before, during, or after the trial, permit an amendment to the
indictment or information in respect to any defect, imperfection, or
omission in form which does not prejudice the substantial rights of
the defendant.
(d) Before amendment of any indictment or information other than
amendment as provided in subsection (b) of this section, the court
shall give all parties adequate notice of the intended amendment and
an opportunity to be heard. Upon permitting such amendment, the
court shall, upon motion by the defendant, order any continuance of
the proceedings which may be necessary to accord the defendant
adequate opportunity to prepare his defense.
(e) An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8, IC 35-50-2-8.5, or
IC 35-50-2-10 must be made not later than ten (10) days after the
omnibus date. However, upon a showing of good cause, the court
may permit the filing of a habitual offender charge at any time before
the 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 of
section 2(a) of this chapter;
(2) the allegations demonstrate that the court does not have
jurisdiction of the offense charged; or
(3) the statute defining the offense charged is unconstitutional
or otherwise invalid.
(b) An information is defective if:
(1) the defendant was a grand jury target identified under
IC 35-34-2-12(a)(1);
(2) the offense alleged was identified on the record under
IC 35-34-2-12(a)(2) as an offense that the defendant allegedly
committed; and
(3) the grand jury proceeded to deliberate on whether to issue
an indictment, and voted not to indict the defendant for the
offense identified on the record under IC 35-34-2-12(a)(2).
However, if the prosecuting attorney shows that there is newly
discovered material evidence that was not presented to the grand jury
before the grand jury's failure to indict, then the information is not
defective.
(c) Except as provided in section 5 of this chapter, an indictment
or information or a count thereof shall be dismissed upon motion
when 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 the
grand jury proceeding which resulted in the indictment was
conducted 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 information
under section 4 of this chapter shall be in writing. The prosecutor
must be given reasonable notice of a motion to dismiss. If the motion
is expressly or impliedly based upon the existence or occurrence of
facts, the motion shall be accompanied by affidavits containing
sworn allegations of these facts. The sworn allegations may be based
upon personal knowledge of the affiant or upon information and
belief, provided that in the latter event the affiant discloses the
sources of the information and the grounds for the belief. If the
motion is expressly or impliedly based upon the existence of any
question of law, the motion shall be accompanied by a memorandum
stating specifically the legal question in issue. The defendant may
also submit documentary evidence tending to support the allegations
of the motion.
(b) The prosecutor may:
(1) file with the court an answer denying or admitting any or all
of the allegations of the motion; and
(2) submit documentary evidence tending to refute the
allegations.
(c) After all papers of both parties have been filed, and after all
documentary evidence has been submitted, the court shall determine
whether, under subsections (d) and (e) of this section, a hearing is
necessary to resolve questions of fact.
(d) The court shall grant the motion without conducting a hearing
only if:
(1) the motion alleges a ground constituting a legal basis for the
motion under section 4 of this chapter;
(2) the ground, if expressly or impliedly based upon the
existence or occurrence of facts, is supported by sworn
allegations of all facts essential to support the motion; and
(3) the sworn allegations of fact essential to support the motion
are admitted as true by the prosecutor or are conclusively
established by documentary evidence.
(e) The court may deny the motion without conducting a hearing
only if:
(1) the motion does not allege a ground constituting a legal
basis for the motion under section 4 of this chapter;
(2) the motion is expressly or impliedly based upon the
existence or occurrence of facts, and the motion does not
contain sworn allegations supporting all the essential facts; or
(3) an allegation of fact essential to support the motion is
conclusively refuted by documentary evidence.
(f) If a hearing is necessary to resolve questions of fact, the court
shall conduct a hearing and make findings of fact essential to the
determination of the motion. The defendant has a right to be present
and 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 same
indictment or information, with each offense stated in a separate
count, when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or
plan.
(b) Two (2) or more defendants can be joined in the same
indictment or information when:
(1) each defendant is charged with each offense included;
(2) each of the defendants is charged as a conspirator or party
to the commission of the offense and some of the defendants are
also charged with one (1) or more offenses alleged to be in
furtherance of the conspiracy or common scheme or plan;
however, a party to the commission of an offense or conspirator
need not be designated as such in the indictment or information;
or
(3) conspiracy is not charged and not all of the defendants are
charged in each count, if it is alleged in the indictment or
information that the offenses charged:
(A) were part of a common scheme or plan; or
(B) were so closely connected in respect to time, place, and
occasion 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 trial
or of related offenses; requisites; orders
Sec. 10. (a) When a defendant has been charged with two (2) or
more offenses in two (2) or more indictments or informations and the
offenses could be joined in the same indictment or information under
section 9(a)(1) of this chapter, the court, upon motion of the
defendant, may order that the indictments or informations be joined
for trial. Such motion shall be made before commencement of trial
on either of the offenses charged.
(b) When a defendant has been charged with two (2) or more
offenses in two (2) or more indictments or informations and the
offenses could have been joined in the same indictment or
information under section (9)(a)(2) of this chapter, the court, upon
motion of the defendant or the prosecuting attorney, or on its own
motion, shall join for trial all of such indictments or informations
unless the court, in the interests of justice, orders that one (1) or
more of such offenses shall be tried separately. Such motion shall be
made before commencement of trial on either of the offenses
charged.
(c) A defendant who has been tried for one (1) offense may
thereafter move to dismiss an indictment or information for an
offense which could have been joined for trial with the prior offenses
under section 9 of this chapter. The motion to dismiss shall be made
prior to the second trial, and shall be granted if the prosecution is
barred 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 a
related offense. The motion shall be granted if the plea of guilty was
entered on the basis of a plea agreement in which the prosecutor
agreed to seek or not to oppose dismissal of other related offenses or
not 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 same
court and which could have been joined in one (1) prosecution
constitute 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 joined
for trial in the same indictment or information solely on the ground
that they are of the same or similar character, the defendant shall
have a right to a severance of the offenses. In all other cases the
court, upon motion of the defendant or the prosecutor, shall grant a
severance of offenses whenever the court determines that severance
is appropriate to promote a fair determination of the defendant's guilt
or 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 the
evidence and apply the law intelligently as to each offense.
(b) Whenever two (2) or more defendants have been joined for
trial in the same indictment or information and one (1) or more
defendants move for a separate trial because another defendant has
made an out-of-court statement which makes reference to the moving
defendant but is not admissible as evidence against him, the court
shall require the prosecutor to elect:
(1) a joint trial at which the statement is not admitted into
evidence;
(2) a joint trial at which the statement is admitted into evidence
only after all references to the moving defendant have been
effectively deleted; or
(3) a separate trial for the moving defendant.
In all other cases, upon motion of the defendant or the prosecutor, the
court shall order a separate trial of defendants whenever the court
determines that a separate trial is necessary to protect a defendant's
right 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 any
information concerning statements made by the defendants which the
prosecutor intends to introduce in evidence at the trial if this
information would assist the court in ruling on a motion for a
separate 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 or
motion for a separate trial must be made before commencement of
trial, except that the motion may be made before or at the close of all
the evidence during trial if based upon a ground not previously
known. The right to severance of offenses or separate trial is waived
by failure to make the motion at the appropriate time.
(b) If a defendant's pretrial motion for severance of offenses or
motion for a separate trial is overruled, the motion may be renewed
on the same grounds before or at the close of all the evidence during
trial. The right to severance of offenses or separate trial is waived by
failure to renew the motion.
(c) If a defendant's motion for severance of offenses or separate
trial is granted during the trial, the granting of the motion shall not
bar 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 court
shall order the dismissal of the indictment or information. The
motion may be made at any time before sentencing and may be made
on the record or in writing. The motion shall state the reason for
dismissal.
(b) In any case where an order sustaining a motion to dismiss
would otherwise constitute a bar to further prosecution of the crime
charged, unless the defendant objects to dismissal, the granting of the
motion does not bar a subsequent trial of the defendant on the
offense 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 averment
substantially in compliance with the provisions of this section shall
be 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 essential
element 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 as
money are sufficient to be alleged simply as money without further
identification.
(c) It is sufficient to describe a written instrument by any name or
designation by which it is usually known or to aver generally the
contents of such instrument.
(d) Averments of dates and numbers may be by words or figures
or 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 indictment
or information is incorrect:
(1) this defect shall not be a ground for dismissal of the
indictment or information; and
(2) any variance between the allegations and the proof of the
defendant's name shall not be considered material.
(b) If at any time during the proceedings the true name of the
defendant becomes known, the court shall order the indictment or
information amended to show both the name by which the defendant
was 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 is
necessary to set forth only:
(1) the substance of the controversy or the matter in respect to
which 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 whom
the perjury was allegedly committed.
(b) In an indictment or information for perjury, in swearing to any
written instrument, it is necessary to set forth only that part of the
instrument alleged to have been falsely sworn to, and to negative the
same, with the name of the officer or court before whom the
instrument was sworn. As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-17 Forgery; misdescription of instrument destroyed or withheld by
defendant immaterial
Sec. 17. When an instrument which is the subject of an indictment
or information for forgery has been destroyed, or is withheld by the
act or procurement of the defendant, and the fact of the destruction
or withholding is alleged in the indictment or information, and
established at trial, the misdescription of the instrument is
immaterial.
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 was
committed upon or in relation to any property belonging to partners,
or to several joint owners, or property which, when the offense was
committed, was in possession of a bailee or tenant, is sufficient if it
alleges 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 be
construed using their ordinary and common meaning, except words
and phrases defined by law, which are to be construed according to
their legal meaning. As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-1 Commencement of prosecution; filing; sealing; violation
Sec. 1. (a) All prosecutions of crimes shall be brought in the name
of the state of Indiana. Any crime may be charged by indictment or
information.
(b) Except as provided in IC 12-15-23-6(d), all prosecutions of
crimes shall be instituted by the filing of an information or
indictment by the prosecuting attorney, in a court with jurisdiction
over the crime charged.
(c) Whenever an indictment or information is filed, the clerk of
the 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 or
his attorney.
(d) The court, upon motion of the prosecuting attorney, may order
that the indictment or information be sealed. If a court has sealed an
indictment or information, no person may disclose the fact that an
indictment or information is in existence or pending until the
defendant has been arrested or otherwise brought within the custody
of the court. However, any person may make any disclosure
necessarily incident to the arrest of the defendant. A violation of this
subsection 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 and
allege the commission of an offense by:
(1) stating the title of the action and the name of the court in
which the indictment or information is filed;
(2) stating the name of the offense in the words of the statute or
any 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 in
such a citation does not constitute grounds for reversal of a
conviction where the defendant was not otherwise misled as to
the nature of the charges against the defendant;
(4) setting forth the nature and elements of the offense charged
in plain and concise language without unnecessary repetition;
(5) stating the date of the offense with sufficient particularity to
show that the offense was committed within the period of
limitations applicable to that offense;
(6) stating the time of the offense as definitely as can be done
if time is of the essence of the offense;
(7) stating the place of the offense with sufficient particularity
to show that the offense was committed within the jurisdiction
of the court where the charge is to be filed;
(8) stating the place of the offense as definitely as can be done
if the place is of the essence of the offense; and
(9) stating the name of every defendant, if known, and if not
known, by designating the defendant by any name or
description by which he can be identified with reasonable
certainty.
(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 his
deputy and sworn to or affirmed by him or any other person.
(c) An indictment or information shall have stated upon it the
names of all the material witnesses. Other witnesses may afterwards
be subpoenaed by the state, but unless the name of a witness is stated
on the indictment or information, no continuance shall be granted to
the state due to the absence of the witness.
(d) The indictment or information shall be a plain, concise, and
definite written statement of the essential facts constituting the
offense charged. It need not contain a formal commencement, a
formal conclusion, or any other matter not necessary to the
statement. Presumptions of law and matters of which judicial notice
is 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 or
affirmation do present that AB, on the _________ day of
__________ 20____ at the county of _________ in the state of
Indiana (HERE SET FORTH THE OFFENSE CHARGED).
(f) The information may be substantially in the same form as the
indictment, substituting for the words, "the grand jury of the county
of _________, upon their oath or affirmation so present" the
following: "CD, being duly sworn on his oath or having affirmed,
says." It is not necessary in an information to state the reason why
the proceeding is by information rather than indictment.
(g) This section applies to a traffic offense (as defined in
IC 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; false
affirmation or verification
Sec. 2.4. (a) If an indictment, information, pleading, motion,
petition, probable cause affidavit, or other document is required to be
verified or sworn under oath before it is submitted to the court in a
criminal action, the document meets the requirements of the law as
a sworn document if the following form or a substantially similar
form is used:
I swear (affirm), under penalty of perjury as specified by
IC 35-44-2-1, that the foregoing (the following) representations
are true.
Signed __________________
(b) If a document complies with subsection (a), the swearing or
affirming need not be done before a notary or other officer
empowered to administer oaths.
(c) A person who makes a false affirmation or verification under
this 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 the
statute, increased because the person was previously convicted of the
offense, the state may seek to have the person sentenced to receive
the increased penalty by alleging, on a page separate from the rest of
the charging instrument, that the person was previously convicted of
the 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 been
returned or presented to a court as authorized by law has become
illegible or cannot be produced, the defendant may be tried using a
copy 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, dismiss
the indictment or information upon any of the following grounds:
(1) The indictment or information, or any count thereof, is
defective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity of
allegation in counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense
with sufficient certainty.
(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense
charged.
(7) The prosecution is barred by reason of a previous
prosecution.
(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 conviction
of the defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matter
of law.
(b) Except as otherwise provided, a motion under this section
shall 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 be
summarily 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 to
dismiss 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 or
renewed at any time before or during trial. A motion to dismiss based
upon lack of jurisdiction over the subject matter may be made at any
time.
(c) Upon the motion to dismiss, a defendant who is in a position
adequately to raise more than one (1) ground in support thereof shall
raise every ground upon which he intends to challenge the indictment
or information. A subsequent motion based upon a ground not
properly raised may be summarily denied. However, the court, in the
interest of justice and for good cause shown, may entertain and
dispose 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 the
defendant if the court determines that the indictment or
information may be cured by amendment under section 5 of this
chapter and the prosecuting attorney has moved for leave to
amend.
If the court grants the motion under subdivision (3) and grants the
prosecuting attorney leave to amend, any prior order imposing
conditions of release pending trial shall stand unless otherwise
modified or removed by order of the court.
(e) If the court grants a motion under subsection (a)(3) and the
prosecuting attorney informs the court on the record that the charges
will 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 in
force unless it is modified or removed by the court.
(f) An order of dismissal does not, of itself, constitute a bar to a
subsequent prosecution of the same crime or crimes except as
otherwise 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 the
commission of an offense may not be dismissed but may be amended
on motion by the prosecuting attorney at any time because of any
immaterial 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 provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the
acts, means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of
the action, or the statutory provision alleged to have been
violated;
(7) the failure to state the time or place at which the offense was
committed where the time or place is not of the essence of the
offense;
(8) the failure to state an amount of value or price of any matter
where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial
rights of the defendant.
(b) The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by the
prosecuting attorney, upon giving written notice to the defendant at
any 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 with
one (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 the
defendant. When the information or indictment is amended, it shall
be signed by the prosecuting attorney or a deputy prosecuting
attorney.
(c) Upon motion of the prosecuting attorney, the court may, at any
time before, during, or after the trial, permit an amendment to the
indictment or information in respect to any defect, imperfection, or
omission in form which does not prejudice the substantial rights of
the defendant.
(d) Before amendment of any indictment or information other than
amendment as provided in subsection (b) of this section, the court
shall give all parties adequate notice of the intended amendment and
an opportunity to be heard. Upon permitting such amendment, the
court shall, upon motion by the defendant, order any continuance of
the proceedings which may be necessary to accord the defendant
adequate opportunity to prepare his defense.
(e) An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8, IC 35-50-2-8.5, or
IC 35-50-2-10 must be made not later than ten (10) days after the
omnibus date. However, upon a showing of good cause, the court
may permit the filing of a habitual offender charge at any time before
the 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 of
section 2(a) of this chapter;
(2) the allegations demonstrate that the court does not have
jurisdiction of the offense charged; or
(3) the statute defining the offense charged is unconstitutional
or otherwise invalid.
(b) An information is defective if:
(1) the defendant was a grand jury target identified under
IC 35-34-2-12(a)(1);
(2) the offense alleged was identified on the record under
IC 35-34-2-12(a)(2) as an offense that the defendant allegedly
committed; and
(3) the grand jury proceeded to deliberate on whether to issue
an indictment, and voted not to indict the defendant for the
offense identified on the record under IC 35-34-2-12(a)(2).
However, if the prosecuting attorney shows that there is newly
discovered material evidence that was not presented to the grand jury
before the grand jury's failure to indict, then the information is not
defective.
(c) Except as provided in section 5 of this chapter, an indictment
or information or a count thereof shall be dismissed upon motion
when 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 the
grand jury proceeding which resulted in the indictment was
conducted 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 information
under section 4 of this chapter shall be in writing. The prosecutor
must be given reasonable notice of a motion to dismiss. If the motion
is expressly or impliedly based upon the existence or occurrence of
facts, the motion shall be accompanied by affidavits containing
sworn allegations of these facts. The sworn allegations may be based
upon personal knowledge of the affiant or upon information and
belief, provided that in the latter event the affiant discloses the
sources of the information and the grounds for the belief. If the
motion is expressly or impliedly based upon the existence of any
question of law, the motion shall be accompanied by a memorandum
stating specifically the legal question in issue. The defendant may
also submit documentary evidence tending to support the allegations
of the motion.
(b) The prosecutor may:
(1) file with the court an answer denying or admitting any or all
of the allegations of the motion; and
(2) submit documentary evidence tending to refute the
allegations.
(c) After all papers of both parties have been filed, and after all
documentary evidence has been submitted, the court shall determine
whether, under subsections (d) and (e) of this section, a hearing is
necessary to resolve questions of fact.
(d) The court shall grant the motion without conducting a hearing
only if:
(1) the motion alleges a ground constituting a legal basis for the
motion under section 4 of this chapter;
(2) the ground, if expressly or impliedly based upon the
existence or occurrence of facts, is supported by sworn
allegations of all facts essential to support the motion; and
(3) the sworn allegations of fact essential to support the motion
are admitted as true by the prosecutor or are conclusively
established by documentary evidence.
(e) The court may deny the motion without conducting a hearing
only if:
(1) the motion does not allege a ground constituting a legal
basis for the motion under section 4 of this chapter;
(2) the motion is expressly or impliedly based upon the
existence or occurrence of facts, and the motion does not
contain sworn allegations supporting all the essential facts; or
(3) an allegation of fact essential to support the motion is
conclusively refuted by documentary evidence.
(f) If a hearing is necessary to resolve questions of fact, the court
shall conduct a hearing and make findings of fact essential to the
determination of the motion. The defendant has a right to be present
and 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 same
indictment or information, with each offense stated in a separate
count, when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or
plan.
(b) Two (2) or more defendants can be joined in the same
indictment or information when:
(1) each defendant is charged with each offense included;
(2) each of the defendants is charged as a conspirator or party
to the commission of the offense and some of the defendants are
also charged with one (1) or more offenses alleged to be in
furtherance of the conspiracy or common scheme or plan;
however, a party to the commission of an offense or conspirator
need not be designated as such in the indictment or information;
or
(3) conspiracy is not charged and not all of the defendants are
charged in each count, if it is alleged in the indictment or
information that the offenses charged:
(A) were part of a common scheme or plan; or
(B) were so closely connected in respect to time, place, and
occasion 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 trial
or of related offenses; requisites; orders
Sec. 10. (a) When a defendant has been charged with two (2) or
more offenses in two (2) or more indictments or informations and the
offenses could be joined in the same indictment or information under
section 9(a)(1) of this chapter, the court, upon motion of the
defendant, may order that the indictments or informations be joined
for trial. Such motion shall be made before commencement of trial
on either of the offenses charged.
(b) When a defendant has been charged with two (2) or more
offenses in two (2) or more indictments or informations and the
offenses could have been joined in the same indictment or
information under section (9)(a)(2) of this chapter, the court, upon
motion of the defendant or the prosecuting attorney, or on its own
motion, shall join for trial all of such indictments or informations
unless the court, in the interests of justice, orders that one (1) or
more of such offenses shall be tried separately. Such motion shall be
made before commencement of trial on either of the offenses
charged.
(c) A defendant who has been tried for one (1) offense may
thereafter move to dismiss an indictment or information for an
offense which could have been joined for trial with the prior offenses
under section 9 of this chapter. The motion to dismiss shall be made
prior to the second trial, and shall be granted if the prosecution is
barred 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 a
related offense. The motion shall be granted if the plea of guilty was
entered on the basis of a plea agreement in which the prosecutor
agreed to seek or not to oppose dismissal of other related offenses or
not 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 same
court and which could have been joined in one (1) prosecution
constitute 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 joined
for trial in the same indictment or information solely on the ground
that they are of the same or similar character, the defendant shall
have a right to a severance of the offenses. In all other cases the
court, upon motion of the defendant or the prosecutor, shall grant a
severance of offenses whenever the court determines that severance
is appropriate to promote a fair determination of the defendant's guilt
or 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 the
evidence and apply the law intelligently as to each offense.
(b) Whenever two (2) or more defendants have been joined for
trial in the same indictment or information and one (1) or more
defendants move for a separate trial because another defendant has
made an out-of-court statement which makes reference to the moving
defendant but is not admissible as evidence against him, the court
shall require the prosecutor to elect:
(1) a joint trial at which the statement is not admitted into
evidence;
(2) a joint trial at which the statement is admitted into evidence
only after all references to the moving defendant have been
effectively deleted; or
(3) a separate trial for the moving defendant.
In all other cases, upon motion of the defendant or the prosecutor, the
court shall order a separate trial of defendants whenever the court
determines that a separate trial is necessary to protect a defendant's
right 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 any
information concerning statements made by the defendants which the
prosecutor intends to introduce in evidence at the trial if this
information would assist the court in ruling on a motion for a
separate 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 or
motion for a separate trial must be made before commencement of
trial, except that the motion may be made before or at the close of all
the evidence during trial if based upon a ground not previously
known. The right to severance of offenses or separate trial is waived
by failure to make the motion at the appropriate time.
(b) If a defendant's pretrial motion for severance of offenses or
motion for a separate trial is overruled, the motion may be renewed
on the same grounds before or at the close of all the evidence during
trial. The right to severance of offenses or separate trial is waived by
failure to renew the motion.
(c) If a defendant's motion for severance of offenses or separate
trial is granted during the trial, the granting of the motion shall not
bar 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 court
shall order the dismissal of the indictment or information. The
motion may be made at any time before sentencing and may be made
on the record or in writing. The motion shall state the reason for
dismissal.
(b) In any case where an order sustaining a motion to dismiss
would otherwise constitute a bar to further prosecution of the crime
charged, unless the defendant objects to dismissal, the granting of the
motion does not bar a subsequent trial of the defendant on the
offense 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 averment
substantially in compliance with the provisions of this section shall
be 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 essential
element 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 as
money are sufficient to be alleged simply as money without further
identification.
(c) It is sufficient to describe a written instrument by any name or
designation by which it is usually known or to aver generally the
contents of such instrument.
(d) Averments of dates and numbers may be by words or figures
or 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 indictment
or information is incorrect:
(1) this defect shall not be a ground for dismissal of the
indictment or information; and
(2) any variance between the allegations and the proof of the
defendant's name shall not be considered material.
(b) If at any time during the proceedings the true name of the
defendant becomes known, the court shall order the indictment or
information amended to show both the name by which the defendant
was 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 is
necessary to set forth only:
(1) the substance of the controversy or the matter in respect to
which 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 whom
the perjury was allegedly committed.
(b) In an indictment or information for perjury, in swearing to any
written instrument, it is necessary to set forth only that part of the
instrument alleged to have been falsely sworn to, and to negative the
same, with the name of the officer or court before whom the
instrument was sworn. As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-17 Forgery; misdescription of instrument destroyed or withheld by
defendant immaterial
Sec. 17. When an instrument which is the subject of an indictment
or information for forgery has been destroyed, or is withheld by the
act or procurement of the defendant, and the fact of the destruction
or withholding is alleged in the indictment or information, and
established at trial, the misdescription of the instrument is
immaterial.
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 was
committed upon or in relation to any property belonging to partners,
or to several joint owners, or property which, when the offense was
committed, was in possession of a bailee or tenant, is sufficient if it
alleges 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 be
construed using their ordinary and common meaning, except words
and phrases defined by law, which are to be construed according to
their legal meaning. As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-1 Commencement of prosecution; filing; sealing; violation
Sec. 1. (a) All prosecutions of crimes shall be brought in the name
of the state of Indiana. Any crime may be charged by indictment or
information.
(b) Except as provided in IC 12-15-23-6(d), all prosecutions of
crimes shall be instituted by the filing of an information or
indictment by the prosecuting attorney, in a court with jurisdiction
over the crime charged.
(c) Whenever an indictment or information is filed, the clerk of
the 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 or
his attorney.
(d) The court, upon motion of the prosecuting attorney, may order
that the indictment or information be sealed. If a court has sealed an
indictment or information, no person may disclose the fact that an
indictment or information is in existence or pending until the
defendant has been arrested or otherwise brought within the custody
of the court. However, any person may make any disclosure
necessarily incident to the arrest of the defendant. A violation of this
subsection 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 and
allege the commission of an offense by:
(1) stating the title of the action and the name of the court in
which the indictment or information is filed;
(2) stating the name of the offense in the words of the statute or
any 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 in
such a citation does not constitute grounds for reversal of a
conviction where the defendant was not otherwise misled as to
the nature of the charges against the defendant;
(4) setting forth the nature and elements of the offense charged
in plain and concise language without unnecessary repetition;
(5) stating the date of the offense with sufficient particularity to
show that the offense was committed within the period of
limitations applicable to that offense;
(6) stating the time of the offense as definitely as can be done
if time is of the essence of the offense;
(7) stating the place of the offense with sufficient particularity
to show that the offense was committed within the jurisdiction
of the court where the charge is to be filed;
(8) stating the place of the offense as definitely as can be done
if the place is of the essence of the offense; and
(9) stating the name of every defendant, if known, and if not
known, by designating the defendant by any name or
description by which he can be identified with reasonable
certainty.
(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 his
deputy and sworn to or affirmed by him or any other person.
(c) An indictment or information shall have stated upon it the
names of all the material witnesses. Other witnesses may afterwards
be subpoenaed by the state, but unless the name of a witness is stated
on the indictment or information, no continuance shall be granted to
the state due to the absence of the witness.
(d) The indictment or information shall be a plain, concise, and
definite written statement of the essential facts constituting the
offense charged. It need not contain a formal commencement, a
formal conclusion, or any other matter not necessary to the
statement. Presumptions of law and matters of which judicial notice
is 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 or
affirmation do present that AB, on the _________ day of
__________ 20____ at the county of _________ in the state of
Indiana (HERE SET FORTH THE OFFENSE CHARGED).
(f) The information may be substantially in the same form as the
indictment, substituting for the words, "the grand jury of the county
of _________, upon their oath or affirmation so present" the
following: "CD, being duly sworn on his oath or having affirmed,
says." It is not necessary in an information to state the reason why
the proceeding is by information rather than indictment.
(g) This section applies to a traffic offense (as defined in
IC 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; false
affirmation or verification
Sec. 2.4. (a) If an indictment, information, pleading, motion,
petition, probable cause affidavit, or other document is required to be
verified or sworn under oath before it is submitted to the court in a
criminal action, the document meets the requirements of the law as
a sworn document if the following form or a substantially similar
form is used:
I swear (affirm), under penalty of perjury as specified by
IC 35-44-2-1, that the foregoing (the following) representations
are true.
Signed __________________
(b) If a document complies with subsection (a), the swearing or
affirming need not be done before a notary or other officer
empowered to administer oaths.
(c) A person who makes a false affirmation or verification under
this 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 the
statute, increased because the person was previously convicted of the
offense, the state may seek to have the person sentenced to receive
the increased penalty by alleging, on a page separate from the rest of
the charging instrument, that the person was previously convicted of
the 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 been
returned or presented to a court as authorized by law has become
illegible or cannot be produced, the defendant may be tried using a
copy 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, dismiss
the indictment or information upon any of the following grounds:
(1) The indictment or information, or any count thereof, is
defective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity of
allegation in counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense
with sufficient certainty.
(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense
charged.
(7) The prosecution is barred by reason of a previous
prosecution.
(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 conviction
of the defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matter
of law.
(b) Except as otherwise provided, a motion under this section
shall 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 be
summarily 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 to
dismiss 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 or
renewed at any time before or during trial. A motion to dismiss based
upon lack of jurisdiction over the subject matter may be made at any
time.
(c) Upon the motion to dismiss, a defendant who is in a position
adequately to raise more than one (1) ground in support thereof shall
raise every ground upon which he intends to challenge the indictment
or information. A subsequent motion based upon a ground not
properly raised may be summarily denied. However, the court, in the
interest of justice and for good cause shown, may entertain and
dispose 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 the
defendant if the court determines that the indictment or
information may be cured by amendment under section 5 of this
chapter and the prosecuting attorney has moved for leave to
amend.
If the court grants the motion under subdivision (3) and grants the
prosecuting attorney leave to amend, any prior order imposing
conditions of release pending trial shall stand unless otherwise
modified or removed by order of the court.
(e) If the court grants a motion under subsection (a)(3) and the
prosecuting attorney informs the court on the record that the charges
will 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 in
force unless it is modified or removed by the court.
(f) An order of dismissal does not, of itself, constitute a bar to a
subsequent prosecution of the same crime or crimes except as
otherwise 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 the
commission of an offense may not be dismissed but may be amended
on motion by the prosecuting attorney at any time because of any
immaterial 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 provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the
acts, means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of
the action, or the statutory provision alleged to have been
violated;
(7) the failure to state the time or place at which the offense was
committed where the time or place is not of the essence of the
offense;
(8) the failure to state an amount of value or price of any matter
where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial
rights of the defendant.
(b) The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by the
prosecuting attorney, upon giving written notice to the defendant at
any 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 with
one (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 the
defendant. When the information or indictment is amended, it shall
be signed by the prosecuting attorney or a deputy prosecuting
attorney.
(c) Upon motion of the prosecuting attorney, the court may, at any
time before, during, or after the trial, permit an amendment to the
indictment or information in respect to any defect, imperfection, or
omission in form which does not prejudice the substantial rights of
the defendant.
(d) Before amendment of any indictment or information other than
amendment as provided in subsection (b) of this section, the court
shall give all parties adequate notice of the intended amendment and
an opportunity to be heard. Upon permitting such amendment, the
court shall, upon motion by the defendant, order any continuance of
the proceedings which may be necessary to accord the defendant
adequate opportunity to prepare his defense.
(e) An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8, IC 35-50-2-8.5, or
IC 35-50-2-10 must be made not later than ten (10) days after the
omnibus date. However, upon a showing of good cause, the court
may permit the filing of a habitual offender charge at any time before
the 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 of
section 2(a) of this chapter;
(2) the allegations demonstrate that the court does not have
jurisdiction of the offense charged; or
(3) the statute defining the offense charged is unconstitutional
or otherwise invalid.
(b) An information is defective if:
(1) the defendant was a grand jury target identified under
IC 35-34-2-12(a)(1);
(2) the offense alleged was identified on the record under
IC 35-34-2-12(a)(2) as an offense that the defendant allegedly
committed; and
(3) the grand jury proceeded to deliberate on whether to issue
an indictment, and voted not to indict the defendant for the
offense identified on the record under IC 35-34-2-12(a)(2).
However, if the prosecuting attorney shows that there is newly
discovered material evidence that was not presented to the grand jury
before the grand jury's failure to indict, then the information is not
defective.
(c) Except as provided in section 5 of this chapter, an indictment
or information or a count thereof shall be dismissed upon motion
when 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 the
grand jury proceeding which resulted in the indictment was
conducted 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 information
under section 4 of this chapter shall be in writing. The prosecutor
must be given reasonable notice of a motion to dismiss. If the motion
is expressly or impliedly based upon the existence or occurrence of
facts, the motion shall be accompanied by affidavits containing
sworn allegations of these facts. The sworn allegations may be based
upon personal knowledge of the affiant or upon information and
belief, provided that in the latter event the affiant discloses the
sources of the information and the grounds for the belief. If the
motion is expressly or impliedly based upon the existence of any
question of law, the motion shall be accompanied by a memorandum
stating specifically the legal question in issue. The defendant may
also submit documentary evidence tending to support the allegations
of the motion.
(b) The prosecutor may:
(1) file with the court an answer denying or admitting any or all
of the allegations of the motion; and
(2) submit documentary evidence tending to refute the
allegations.
(c) After all papers of both parties have been filed, and after all
documentary evidence has been submitted, the court shall determine
whether, under subsections (d) and (e) of this section, a hearing is
necessary to resolve questions of fact.
(d) The court shall grant the motion without conducting a hearing
only if:
(1) the motion alleges a ground constituting a legal basis for the
motion under section 4 of this chapter;
(2) the ground, if expressly or impliedly based upon the
existence or occurrence of facts, is supported by sworn
allegations of all facts essential to support the motion; and
(3) the sworn allegations of fact essential to support the motion
are admitted as true by the prosecutor or are conclusively
established by documentary evidence.
(e) The court may deny the motion without conducting a hearing
only if:
(1) the motion does not allege a ground constituting a legal
basis for the motion under section 4 of this chapter;
(2) the motion is expressly or impliedly based upon the
existence or occurrence of facts, and the motion does not
contain sworn allegations supporting all the essential facts; or
(3) an allegation of fact essential to support the motion is
conclusively refuted by documentary evidence.
(f) If a hearing is necessary to resolve questions of fact, the court
shall conduct a hearing and make findings of fact essential to the
determination of the motion. The defendant has a right to be present
and 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 same
indictment or information, with each offense stated in a separate
count, when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or
plan.
(b) Two (2) or more defendants can be joined in the same
indictment or information when:
(1) each defendant is charged with each offense included;
(2) each of the defendants is charged as a conspirator or party
to the commission of the offense and some of the defendants are
also charged with one (1) or more offenses alleged to be in
furtherance of the conspiracy or common scheme or plan;
however, a party to the commission of an offense or conspirator
need not be designated as such in the indictment or information;
or
(3) conspiracy is not charged and not all of the defendants are
charged in each count, if it is alleged in the indictment or
information that the offenses charged:
(A) were part of a common scheme or plan; or
(B) were so closely connected in respect to time, place, and
occasion 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 trial
or of related offenses; requisites; orders
Sec. 10. (a) When a defendant has been charged with two (2) or
more offenses in two (2) or more indictments or informations and the
offenses could be joined in the same indictment or information under
section 9(a)(1) of this chapter, the court, upon motion of the
defendant, may order that the indictments or informations be joined
for trial. Such motion shall be made before commencement of trial
on either of the offenses charged.
(b) When a defendant has been charged with two (2) or more
offenses in two (2) or more indictments or informations and the
offenses could have been joined in the same indictment or
information under section (9)(a)(2) of this chapter, the court, upon
motion of the defendant or the prosecuting attorney, or on its own
motion, shall join for trial all of such indictments or informations
unless the court, in the interests of justice, orders that one (1) or
more of such offenses shall be tried separately. Such motion shall be
made before commencement of trial on either of the offenses
charged.
(c) A defendant who has been tried for one (1) offense may
thereafter move to dismiss an indictment or information for an
offense which could have been joined for trial with the prior offenses
under section 9 of this chapter. The motion to dismiss shall be made
prior to the second trial, and shall be granted if the prosecution is
barred 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 a
related offense. The motion shall be granted if the plea of guilty was
entered on the basis of a plea agreement in which the prosecutor
agreed to seek or not to oppose dismissal of other related offenses or
not 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 same
court and which could have been joined in one (1) prosecution
constitute 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 joined
for trial in the same indictment or information solely on the ground
that they are of the same or similar character, the defendant shall
have a right to a severance of the offenses. In all other cases the
court, upon motion of the defendant or the prosecutor, shall grant a
severance of offenses whenever the court determines that severance
is appropriate to promote a fair determination of the defendant's guilt
or 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 the
evidence and apply the law intelligently as to each offense.
(b) Whenever two (2) or more defendants have been joined for
trial in the same indictment or information and one (1) or more
defendants move for a separate trial because another defendant has
made an out-of-court statement which makes reference to the moving
defendant but is not admissible as evidence against him, the court
shall require the prosecutor to elect:
(1) a joint trial at which the statement is not admitted into
evidence;
(2) a joint trial at which the statement is admitted into evidence
only after all references to the moving defendant have been
effectively deleted; or
(3) a separate trial for the moving defendant.
In all other cases, upon motion of the defendant or the prosecutor, the
court shall order a separate trial of defendants whenever the court
determines that a separate trial is necessary to protect a defendant's
right 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 any
information concerning statements made by the defendants which the
prosecutor intends to introduce in evidence at the trial if this
information would assist the court in ruling on a motion for a
separate 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 or
motion for a separate trial must be made before commencement of
trial, except that the motion may be made before or at the close of all
the evidence during trial if based upon a ground not previously
known. The right to severance of offenses or separate trial is waived
by failure to make the motion at the appropriate time.
(b) If a defendant's pretrial motion for severance of offenses or
motion for a separate trial is overruled, the motion may be renewed
on the same grounds before or at the close of all the evidence during
trial. The right to severance of offenses or separate trial is waived by
failure to renew the motion.
(c) If a defendant's motion for severance of offenses or separate
trial is granted during the trial, the granting of the motion shall not
bar 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 court
shall order the dismissal of the indictment or information. The
motion may be made at any time before sentencing and may be made
on the record or in writing. The motion shall state the reason for
dismissal.
(b) In any case where an order sustaining a motion to dismiss
would otherwise constitute a bar to further prosecution of the crime
charged, unless the defendant objects to dismissal, the granting of the
motion does not bar a subsequent trial of the defendant on the
offense 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 averment
substantially in compliance with the provisions of this section shall
be 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 essential
element 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 as
money are sufficient to be alleged simply as money without further
identification.
(c) It is sufficient to describe a written instrument by any name or
designation by which it is usually known or to aver generally the
contents of such instrument.
(d) Averments of dates and numbers may be by words or figures
or 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 indictment
or information is incorrect:
(1) this defect shall not be a ground for dismissal of the
indictment or information; and
(2) any variance between the allegations and the proof of the
defendant's name shall not be considered material.
(b) If at any time during the proceedings the true name of the
defendant becomes known, the court shall order the indictment or
information amended to show both the name by which the defendant
was 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 is
necessary to set forth only:
(1) the substance of the controversy or the matter in respect to
which 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 whom
the perjury was allegedly committed.
(b) In an indictment or information for perjury, in swearing to any
written instrument, it is necessary to set forth only that part of the
instrument alleged to have been falsely sworn to, and to negative the
same, with the name of the officer or court before whom the
instrument was sworn. As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-17 Forgery; misdescription of instrument destroyed or withheld by
defendant immaterial
Sec. 17. When an instrument which is the subject of an indictment
or information for forgery has been destroyed, or is withheld by the
act or procurement of the defendant, and the fact of the destruction
or withholding is alleged in the indictment or information, and
established at trial, the misdescription of the instrument is
immaterial.
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 was
committed upon or in relation to any property belonging to partners,
or to several joint owners, or property which, when the offense was
committed, was in possession of a bailee or tenant, is sufficient if it
alleges 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 be
construed using their ordinary and common meaning, except words
and phrases defined by law, which are to be construed according to
their legal meaning. As added by Acts 1981, P.L.298, SEC.3.
