Second Regular Session 113th General Assembly (2004)


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    HOUSE ENROLLED ACT No. 1197



     AN ACT to amend the Indiana Code concerning civil procedure.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 35-37-4-6; (04)HE1197.1.1. -->     SECTION 1. IC 35-37-4-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 6. (a) This section applies to a criminal action under the following: 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) Battery upon a child (IC 35-42-2-1(2)(B)).
        (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) An attempt under IC 35-41-5-1 for an offense listed in subdivisions (1) through (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) Battery (IC 35-42-2-1).
        (4) Kidnapping, confinement, or interference with custody (IC 35-42-3).
        (5) Home improvement fraud (IC 35-42-6).
        (6) Fraud (IC 35-43-5).
        (7) Identity deception (IC 35-43-5-3.5).

         (8) Theft (IC 35-43-4-2).
        (9) Conversion (IC 35-43-4-3).
        (10) Neglect of a dependent (IC 35-46-1-4).

    (c) As used in this section, "protected person" means:
        (1) a child who is less than fourteen (14) years of age; or
        (2) a mentally disabled individual 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, mental retardation, 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.

    (c) (d) A statement or videotape that:
        (1) is made by a person who at the time of trial is a protected person;
        (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 (d) (e) are met.
    (d) (e) A statement or videotape described in subsection (c) (d) 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 his 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;
        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 psychiatrist, physician, or psychologist, 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.
    (e) (f) If a protected person is unavailable to testify at the trial for a reason listed in subsection (d)(2)(B), (e)(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 (d)(1); (e)(1); or
        (2) when the statement or videotape was made.
    (f) (g) 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) his the prosecuting attorney's intention to introduce the statement or videotape in evidence; and
        (2) the content of the statement or videotape.
    (g) (h) 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.
     (i) If a statement or videotape described in subsection (d) is admitted into evidence under this section, a defendant may introduce a:
        (1) transcript; or
        (2) videotape;
of the hearing held under subsection (e)(1) into evidence at trial.


HEA 1197

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