Sec. 11.5. (a) This section applies only to a criminal case involving a child less than sixteen (16) years of age who is the victim or alleged victim of a sex offense.

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Terms Used In Indiana Code 35-40-5-11.5

  • Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
  • Attorney: includes a counselor or other person authorized to appear and represent a party in an action or special proceeding. See Indiana Code 1-1-4-5
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Deposition: An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Testimony: Evidence presented orally by witnesses during trials or before grand juries.
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
     (b) The following definitions apply throughout this section:

(1) “Accused” or “the accused” means a person charged with committing a sex offense against a child victim. The term does not include an attorney who represents the accused.

(2) “Child victim” means a child less than sixteen (16) years of age who is the victim or alleged victim of a sex offense.

(3) “Defendant” means a person charged with committing a sex offense against a child victim and an attorney who represents the defendant.

(4) “Deposition” or “depose” means a deposition or taking a deposition pursuant to Indiana Trial Rule 30 or Indiana Trial Rule 31, or any other formal or informal statement or interview.

(5) “Sex offense” has the meaning set forth in IC 11-8-8-5.2.

     (c) A defendant may depose a child victim only in accordance with this section.

     (d) A defendant may not take the deposition of a child victim unless the defendant contacts the prosecuting attorney before contacting the child, and one (1) or more of the following apply:

(1) The prosecuting attorney agrees to the deposition. The prosecuting attorney may condition the prosecuting attorney’s agreement to the deposition upon the defendant’s acceptance of the manner in which the deposition shall be conducted.

(2) The court authorizes the deposition after finding, following a hearing under subsection (f), that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim’s testimony.

(3) The court authorizes the deposition after finding, following a hearing under subsection (g), that the deposition is necessary:

(A) due to the existence of extraordinary circumstances; and

(B) in the interest of justice.

     (e) If the prosecuting attorney does not agree to the deposition, the defendant may petition the court for authorization to depose the child victim under subsection (d)(2), (d)(3), or both subsection (d)(2) and (d)(3). Upon receipt of the petition, the court shall notify the prosecuting attorney and set a hearing to determine whether to authorize a deposition of the child victim, and, if applicable, to determine the manner in which the deposition shall be conducted.

     (f) The court shall authorize the deposition of a child victim under subsection (d)(2) if the defendant proves by a preponderance of the evidence that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim’s testimony.

     (g) The court may not authorize the deposition of a child victim under subsection (d)(3) unless the defendant establishes by a preponderance of the evidence that the deposition is necessary:

(1) due to the existence of extraordinary circumstances; and

(2) in the interest of justice.

     (h) If the court authorizes the deposition of a child victim under subsection (f) or (g), the court shall determine the manner in which the deposition shall be conducted, after considering:

(1) the age of the child;

(2) the rights of the victim under IC 35-40-5-1; and

(3) any other relevant factors or special considerations.

     (i) If the court denies a petition to depose a child victim, the court shall issue a written order describing the reason for the denial.

     (j) If the court grants a request to depose a child victim, the court shall issue a written order describing the reason for granting the petition and setting forth the manner in which the deposition shall be conducted. The order shall:

(1) expressly prohibit the accused from deposing or being present at the deposition of the child victim unless:

(A) there is a reasonable likelihood that the child victim will be unavailable for trial;

(B) the deposition is necessary to preserve the child victim’s testimony; and

(C) the presence of the accused is necessary to preserve the constitutional rights of the accused under the Sixth Amendment of the Constitution of the United States or Article 1, § 13 of the Constitution of the State of Indiana;

(2) describe the manner in which the deposition shall be conducted; and

(3) if applicable, issue a protective order under Indiana Trial Rule 26(C).

As added by P.L.62-2020, SEC.8. Amended by P.L.42-2023, SEC.3.

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