§ 33-39-10-2 — Special prosecutor; appointment

(a) A person may be appointed as a special
prosecutor:
(1) as provided under this section; or
(2) in accordance with IC 4-2-7-7.
(b) A circuit court or superior court judge:
(1) shall appoint a special prosecutor if:
(A) any person, other than a prosecuting attorney or the
prosecuting attorney's deputy, files a verified petition
requesting the appointment of a special prosecutor; and
(B) the prosecuting attorney agrees that a special prosecutor is
needed;
(2) may appoint a special prosecutor if:
(A) a person files a verified petition requesting the appointment
of a special prosecutor; and
(B) the court, after:
(i) notice is given to the prosecuting attorney; and
(ii) an evidentiary hearing is conducted at which the
prosecuting attorney is given an opportunity to be heard;
finds by clear and convincing evidence that the appointment is
necessary to avoid an actual conflict of interest or there is
probable cause to believe that the prosecuting attorney has
committed a crime;
(3) may appoint a special prosecutor if:
(A) the prosecuting attorney files a petition requesting the court
to appoint a special prosecutor; and
(B) the court finds that the appointment is necessary to avoid
the appearance of impropriety;
(4) may appoint a special prosecutor if:
(A) an elected public official who is a defendant in a criminal
proceeding files a verified petition requesting a special
prosecutor within ten (10) days after the date of the initial
hearing; and
(B) the court finds that the appointment of a special prosecutor
is in the best interests of justice; and
(5) shall appoint a special prosecutor if:
(A) a previously appointed special prosecutor:
(i) files a motion to withdraw as special prosecutor; or
(ii) has become incapable of continuing to represent the
interests of the state; and
(B) the court finds that the facts that established the basis for
the initial appointment of a special prosecutor still exist.
The elected prosecuting attorney who serves in the jurisdiction of
the appointing court shall receive notice of all pleadings filed and
orders issued under this subdivision.
(c) A person appointed to serve as a special prosecutor:
(1) must consent to the appointment; and
(2) must be:
(A) the prosecuting attorney or a deputy prosecuting attorney in
a judicial circuit other than the judicial circuit in which the
person is to serve as special prosecutor; or
(B) a senior prosecuting attorney as described in section 1 of
this chapter. A senior prosecuting attorney may be appointed to
serve as a special prosecutor in a judicial circuit in which the
senior prosecuting attorney previously served if the court finds
that the appointment would not create the appearance of
impropriety.
(d) A person appointed to serve as a special prosecutor in a judicial
circuit has the same powers as the prosecuting attorney of the judicial
circuit. However, the appointing judge shall limit the scope of the
special prosecutor's duties to include only the investigation or
prosecution of a particular case or particular grand jury investigation.
(e) Upon making an appointment under this section, the court shall
establish the length of the special prosecutor's term. At least one (1)
time every six (6) months throughout the appointed term, a special
prosecutor shall file a progress report with the appointing court. A
progress report:
(1) must inform the court of the:
(A) status of the investigation; and
(B) estimated time for completion of the special prosecutor's
duties; and
(2) may not:
(A) include substantive facts or legal issues; or
(B) offer preliminary conclusions.
The court may extend the term of appointment upon the request of the
special prosecutor or terminate any appointment if the special
prosecutor has failed to file reports or a request for an extended term
under this subsection.
(f) If the target of an investigation by the special prosecutor is a
public servant (as defined in IC 35-31.5-2-261), the court shall order
the special prosecutor to file a report of the investigation with the court
at the conclusion of the investigation. A report filed under this
subsection is a public record under IC 5-14-3.
(g) If a special prosecutor is not regularly employed as a full-time
prosecuting attorney or full-time deputy prosecuting attorney, the
compensation for the special prosecutor's services:
(1) shall be paid, as incurred, to the special prosecutor following
an application to the county auditor, from the unappropriated
funds of the appointing county; and
(2) may not exceed:
(A) an hourly rate based upon the regular salary of a full-time
prosecuting attorney of the appointing circuit;
(B) travel expenses and reasonable accommodation expenses
actually incurred; and
(C) other reasonable expenses actually incurred, including the
costs of investigation, trial and discovery preparation, and other
trial expenses.
The amount of compensation a special prosecutor receives for services
performed during a calendar day under subdivision (2)(A) may not
exceed the amount of compensation a full-time prosecuting attorney
would receive in salary for the calendar day.
(h) If the special prosecutor is regularly employed as a full-time
prosecuting attorney or deputy prosecuting attorney, the compensation
for the special prosecutor's services:
(1) shall be paid out of the appointing county's unappropriated
funds to the treasurer of the county in which the special
prosecutor regularly serves; and
(2) must include a per diem equal to the regular salary of a
full-time prosecuting attorney of the appointing circuit, travel
expenses, and reasonable accommodation expenses actually
incurred.

Legislative History

As added by P.L.57-2014, SEC.10. Amended by P.L.147-2025, SEC.3.