§ 35-37-4-8 — Application of section; testimony of protected person; closed circuit television; videotape; notice to defendant

Indiana § 35-37-4-8

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

Text

(a) This section applies to a criminal action
under the following:
(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) As used in this section, "protected person" has the meaning set
forth in section 6 of this chapter.
(c) On the motion of the prosecuting attorney, the court may order
that the testimony of a protected person be taken in a room other than
the courtroom, and that the questioning of the protected person by the
prosecution and the defense be transmitted using a two-way closed
circuit television arrangement that:
(1) allows the protected person to see the accused and the trier of
fact; and
(2) allows the accused and the trier of fact to see and hear the
protected person.
(d) On the motion of the prosecuting attorney or the defendant, the
court may order that the testimony of a protected person be videotaped
for use at trial. The videotaping of the testimony of a protected person
under this subsection must meet the requirements of subsection (c).
(e) The court may not make an order under subsection (c) or (d)
unless:
(1) the testimony to be taken is the testimony of a protected
person who:
(A) is the alleged victim of an offense listed in subsection (a)
for which the defendant is being tried or is a witness in a trial
for an offense listed in subsection (a); and
(B) is found by the court to be a protected person who should
be permitted to testify outside the courtroom because:
(i) the court finds from the testimony of a psychiatrist,
physician, or psychologist and any other evidence that the
protected person's testifying in the physical presence of the
defendant would cause the protected person to suffer serious
emotional harm and the court finds that the protected person
could not reasonably communicate in the physical presence
of the defendant to the trier of fact;
(ii) a physician has certified that the protected person cannot
be present in the courtroom for medical reasons; or
(iii) evidence has been introduced concerning the effect of
the protected person's testifying in the physical presence of
the defendant, and the court finds that it is more likely than
not that the protected person's testifying in the physical
presence of the defendant creates a substantial likelihood of
emotional or mental harm to the protected person;
(2) the prosecuting attorney has informed the defendant and the
defendant's attorney of the intention to have the protected person
testify outside the courtroom; and
(3) the prosecuting attorney informed the defendant and the
defendant's attorney under subdivision (2) at least ten (10) days
before the trial of the prosecuting attorney's intention to have the
protected person testify outside the courtroom.
(f) If the court makes an order under subsection (c), only the
following persons may be in the same room as the protected person
during the protected person's testimony:
(1) A defense attorney if:
(A) the defendant is represented by the defense attorney; and
(B) the prosecuting attorney is also in the same room.
(2) The prosecuting attorney if:
(A) the defendant is represented by a defense attorney; and
(B) the defense attorney is also in the same room.
(3) Persons necessary to operate the closed circuit television
equipment.
(4) Persons whose presence the court finds will contribute to the
protected person's well-being.
(5) A court bailiff or court representative.
(g) If the court makes an order under subsection (d), only the
following persons may be in the same room as the protected person
during the protected person's videotaped testimony:
(1) The judge.
(2) The prosecuting attorney.
(3) The defendant's attorney (or the defendant, if the defendant is
not represented by an attorney).
(4) Persons necessary to operate the electronic equipment.
(5) The court reporter.
(6) Persons whose presence the court finds will contribute to the
protected person's well-being.
(7) The defendant, who can observe and hear the testimony of the
protected person with the protected person being able to observe
or hear the defendant. However, if the defendant is not
represented by an attorney, the defendant may question the
protected person.
(h) If the court makes an order under subsection (c) or (d), only the
following persons may question the protected person:
(1) The prosecuting attorney.
(2) The defendant's attorney (or the defendant, if the defendant is
not represented by an attorney).
(3) The judge.

Legislative History

As added by P.L.203-1986, SEC.2. Amended by P.L.37-1990, SEC.23; P.L.142-1994, SEC.8; P.L.2-2005, SEC.121; P.L.173-2006, SEC.49; P.L.238-2015, SEC.12; P.L.65-2016, SEC.27; P.L.142-2020, SEC.59.