§ 35-37-4-6 — Application of section; "protected person"; admissibility of statement or videotape; notice to defendant; jury instructions

Indiana § 35-37-4-6

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

Text

(a) This section applies to a criminal action
involving the following offenses where the victim is a protected person
under subsection (c)(1) or (c)(2):
(1) Sex crimes (IC 35-42-4).
(2) A battery offense included in IC 35-42-2 upon a child less
than fourteen (14) years of age.
(3) Kidnapping and confinement (IC 35-42-3).
(4) Incest (IC 35-46-1-3).
(5) Neglect of a dependent (IC 35-46-1-4).
(6) Human and sexual trafficking crimes (IC 35-42-3.5).
(b) This section applies to a criminal action involving the following
offenses where the victim is a protected person under subsection (c)(3):
(1) Exploitation of a dependent or endangered adult (IC 35-46-1-12).
(2) A sex crime (IC 35-42-4).
(3) A battery offense included in IC 35-42-2.
(4) Kidnapping, confinement, or interference with custody (IC 35-42-3).
(5) Home improvement fraud (IC 35-43-6).
(6) Fraud (IC 35-43-5).
(7) Identity deception (IC 35-43-5-3.5).
(8) Synthetic identity deception (IC 35-43-5-3.8) (before its
repeal).
(9) Theft (IC 35-43-4-2).
(10) Conversion (IC 35-43-4-3).
(11) Neglect of a dependent (IC 35-46-1-4).
(12) Human and sexual trafficking crimes (IC 35-42-3.5).
(c) As used in this section, "protected person" means:
(1) a child who is less than fourteen (14) years of age at the time
of the offense but less than eighteen (18) years of age at the time
of trial;
(2) an individual with a mental disability who has a disability
attributable to an impairment of general intellectual functioning
or adaptive behavior that:
(A) is manifested before the individual is eighteen (18) years of
age;
(B) is likely to continue indefinitely;
(C) constitutes a substantial impairment of the individual's
ability to function normally in society; and
(D) reflects the individual's need for a combination and
sequence of special, interdisciplinary, or generic care,
treatment, or other services that are of lifelong or extended
duration and are individually planned and coordinated; or
(3) an individual who is:
(A) at least eighteen (18) years of age; and
(B) incapable by reason of mental illness, intellectual disability,
dementia, or other physical or mental incapacity of:
(i) managing or directing the management of the individual's
property; or
(ii) providing or directing the provision of self-care.
(d) As used in this section, "provider" means:
(1) a psychiatrist or physician licensed under IC 25-22.5;
(2) a psychologist licensed under IC 25-33;
(3) a marriage and family therapist licensed under IC 25-23.6-8;
(4) an advanced practice registered nurse (APRN) with a
certification as a psychiatric mental health nurse practitioner
licensed under IC 25-23; or
(5) a physician assistant specialized in psychiatry and mental
health licensed under IC 25-27.5.
(e) A statement or videotape that:
(1) is made by a person who at the time of trial is a protected
person, as defined in subsection (c);
(2) concerns an act that is a material element of an offense listed
in subsection (a) or (b) that was allegedly committed against the
person; and
(3) is not otherwise admissible in evidence;
is admissible in evidence in a criminal action for an offense listed in
subsection (a) or (b) if the requirements of subsection (f) are met.
(f) A statement or videotape described in subsection (e) is
admissible in evidence in a criminal action listed in subsection (a) or
(b) if, after notice to the defendant of a hearing and of the defendant's
right to be present, all of the following conditions are met:
(1) The court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the protected person in person or by using
closed circuit television testimony as described in section 8(f)
and 8(g) of this chapter;
that the time, content, and circumstances of the statement or
videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for one
(1) of the following reasons:
(i) From the testimony of a provider, and other evidence, if
any, the court finds that the protected person's testifying in
the physical presence of the defendant will cause the
protected person to suffer serious emotional distress such that
the protected person cannot reasonably communicate.
(ii) The protected person cannot participate in the trial for
medical reasons.
(iii) The court has determined that the protected person is
incapable of understanding the nature and obligation of an
oath.
(g) If a protected person is unavailable to testify at the trial for a
reason listed in subsection (f)(2)(B), a statement or videotape may be
admitted in evidence under this section only if the protected person was
available for cross-examination:
(1) at the hearing described in subsection (f)(1); or
(2) when the statement or videotape was made.
(h) A statement or videotape may not be admitted in evidence under
this section unless the prosecuting attorney informs the defendant and
the defendant's attorney at least ten (10) days before the trial of:
(1) the prosecuting attorney's intention to introduce the statement
or videotape in evidence; and
(2) the content of the statement or videotape.
(i) If a statement or videotape is admitted in evidence under this
section, the court shall instruct the jury that it is for the jury to
determine the weight and credit to be given the statement or videotape
and that, in making that determination, the jury shall consider the
following:
(1) The mental and physical age of the person making the
statement or videotape.
(2) The nature of the statement or videotape.
(3) The circumstances under which the statement or videotape
was made.
(4) Other relevant factors.
(j) If a statement or videotape described in subsection (e) is
admitted into evidence under this section, a defendant may introduce
a:
(1) transcript; or
(2) videotape;
of the hearing held under subsection (f)(1) into evidence at trial.

Legislative History

As added by P.L.180-1984, SEC.1. Amended by P.L.316-1985, SEC.1; P.L.37-1990, SEC.22; P.L.23-1993, SEC.161; P.L.142-1994, SEC.7; P.L.43-2004, SEC.1; P.L.2-2005, SEC.120; P.L.173-2006, SEC.48; P.L.99-2007, SEC.207; P.L.137-2009, SEC.10; P.L.28-2011, SEC.1; P.L.117-2015, SEC.54; P.L.238-2015, SEC.11; P.L.149-2016, SEC.89; P.L.65-2016, SEC.26; P.L.142-2020, SEC.58; P.L.174-2021, SEC.40; P.L.153-2022, SEC.1; P.L.42-2023, SEC.2; P.L.9-2024, SEC.534.