§ 35-37-4-4 — Sex crimes; admissibility of evidence of past sexual conduct; procedure

Indiana § 35-37-4-4

• Jurisdiction: Indiana
• Art. 37: TRIAL PROCEDURE
• Ch. 4: Evidence and Protection of Certain Witnesses

Text

(a) In a prosecution for an offense described in
IC 11-8-8-4.5(a):
(1) evidence of the victim's past sexual conduct;
(2) evidence of the past sexual conduct of a witness other than the
accused;
(3) opinion evidence of the victim's past sexual conduct;
(4) opinion evidence of the past sexual conduct of a witness other
than the accused;
(5) reputation evidence of the victim's past sexual conduct; and
(6) reputation evidence of the past sexual conduct of a witness
other than the accused;
may not be admitted, nor may reference be made to this evidence in the
presence of the jury, except as provided in this chapter.
(b) Notwithstanding subsection (a), evidence:
(1) of the victim's or a witness's past sexual conduct with the
defendant;
(2) which in a specific instance of sexual activity shows that some
person other than the defendant committed the act upon which the
prosecution is founded; or
(3) that the victim's pregnancy at the time of trial was not caused
by the defendant;
may be introduced if the judge finds, under the procedure provided in
subsection (c), that it is material to a fact at issue in the case and that
its inflammatory or prejudicial nature does not outweigh its probative
value.
(c) If the defendant or the state proposes to offer evidence described
in subsection (b), the following procedure must be followed:
(1) The defendant or the state shall file a written motion not less
than ten (10) days before trial stating that it has an offer of proof
concerning evidence described in subsection (b) and its relevancy
to the case. This motion shall be accompanied by an affidavit in
which the offer of proof is stated.
(2) If the court finds that the offer of proof is sufficient, the court
shall order a hearing out of the presence of the jury, and at the
hearing allow the questioning of the victim or witness regarding
the offer of proof made by the defendant or the state.
At the conclusion of the hearing, if the court finds that evidence
proposed to be offered by the defendant or the state regarding the
sexual conduct of the victim or witness is admissible under subsection
(b), the court shall make an order stating what evidence may be
introduced by the defendant or the state and the nature of the questions
to be permitted. The defendant or the state may then offer evidence
under the order of the court.
(d) If new information is discovered within ten (10) days before trial
or during the course of the trial that might make evidence described in
subsection (b) admissible, the judge shall order a hearing out of the
presence of the jury to determine whether the proposed evidence is
admissible under this chapter.
(e) This section does not limit the right of either the state or the
accused to impeach credibility by a showing of prior felony
convictions.
(f) If:
(1) a defendant files a motion under subsection (c)(1) concerning
evidence described in subsection (b)(3); and
(2) the state acknowledges that the victim's pregnancy is not due
to the conduct of the defendant;
the court shall instruct the jury that the victim's pregnancy is not due to
the conduct of the defendant. However, other evidence concerning the
pregnancy may not be admitted, and further reference to the pregnancy
may not be made in the presence of the jury.
As added by Acts 1981, P.L.298, SEC.6. Amended by
P.L.322-1983, SEC.1; P.L.144-2018, SEC.17.