Motion by defendant; affidavit; grounds; requisite; contents
Sec. 1. (a) A motion by a defendant to postpone a trial because of
the absence of evidence may be made only on affidavit showing:
(1) that the evidence is material;
(2) that due diligence has been used to obtain the evidence; and
(3) the location of the evidence.
(b) If a defendant's motion to postpone is because of the absence
of a witness, the affidavit required under subsection (a) must:
(1) show the name and address of the witness, if known;
(2) indicate the probability of procuring the witness's testimony
within a reasonable time;
(3) show that the absence of the witness has not been procured
by the act of the defendant;
(4) state the facts to which the defendant believes the witness
will testify, and include a statement that the defendant believes
these facts to be true; and
(5) state that the defendant is unable to prove the facts specified
in accordance with subdivision (4) through the use of any other
witness whose testimony can be as readily procured.
(c) The trial may not be postponed if:
(1) after a motion by the defendant to postpone because of the
absence of a witness, the prosecuting attorney admits that the
absent witness would testify to the facts as alleged by the
defendant in his affidavit in accordance with subsection (b)(4);
or
(2) after a motion by the defendant to postpone because of the
absence of written or documentary evidence, the prosecuting
attorney admits that the written or documentary evidence exists.
(d) A defendant must file an affidavit for a continuance not later
than five (5) days before the date set for trial. If a defendant fails to
file an affidavit by this time, then he must establish, to the
satisfaction of the court, that he is not at fault for failing to file the
affidavit at an earlier date.
(e) If a motion for a continuance is based on the illness of the
defendant or of a witness, it must be accompanied by:
(1) oral testimony, given in open court; or
(2) a written statement;
of a physician or hospital official having the care or custody of the
defendant or witness, presenting the nature of the illness and the
probable duration of the person's incapacity to attend trial. Such a
written statement must be sworn to by the person making the
statement before an officer authorized to administer an oath. The
court may appoint a physician to examine the defendant or witness
and report to the court on the nature of the person's illness and of his
incapacity to attend trial. The court shall by order provide for
compensation for such a physician.
As added by Acts 1981, P.L.298, SEC.5.
Last modified: May 24, 2006