§ 35-36-7-1 — Motion by defendant; affidavit; grounds; requisite; contents

Indiana § 35-36-7-1

• Jurisdiction: Indiana
• Art. 36: PRETRIAL NOTICES, MOTIONS, AND
• Ch. 7: Continuances

Text

(a) A motion by a defendant to postpone a trial
because of the absence of evidence may be made only on affidavit
showing:
(1) that the evidence is material;
(2) that due diligence has been used to obtain the evidence; and
(3) the location of the evidence.
(b) If a defendant's motion to postpone is because of the absence of
a witness, the affidavit required under subsection (a) must:
(1) show the name and address of the witness, if known;
(2) indicate the probability of procuring the witness's testimony
within a reasonable time;
(3) show that the absence of the witness has not been procured by
the act of the defendant;
(4) state the facts to which the defendant believes the witness will
testify, and include a statement that the defendant believes these
facts to be true; and
(5) state that the defendant is unable to prove the facts specified
in accordance with subdivision (4) through the use of any other
witness whose testimony can be as readily procured.
(c) The trial may not be postponed if:
(1) after a motion by the defendant to postpone because of the
absence of a witness, the prosecuting attorney admits that the
absent witness would testify to the facts as alleged by the
defendant in his affidavit in accordance with subsection (b)(4); or
(2) after a motion by the defendant to postpone because of the
absence of written or documentary evidence, the prosecuting
attorney admits that the written or documentary evidence exists.
(d) A defendant must file an affidavit for a continuance not later
than five (5) days before the date set for trial. If a defendant fails to file
an affidavit by this time, then he must establish, to the satisfaction of
the court, that he is not at fault for failing to file the affidavit at an
earlier date.
(e) If a motion for a continuance is based on the illness of the
defendant or of a witness, it must be accompanied by:
(1) oral testimony, given in open court; or
(2) a written statement;
of a physician or hospital official having the care or custody of the
defendant or witness, presenting the nature of the illness and the
probable duration of the person's incapacity to attend trial. Such a
written statement must be sworn to by the person making the statement
before an officer authorized to administer an oath. The court may
appoint a physician to examine the defendant or witness and report to
the court on the nature of the person's illness and of his incapacity to
attend trial. The court shall by order provide for compensation for such
a physician.
As added by Acts 1981, P.L.298, SEC.5.