Sex crimes; admissibility of evidence of past sexual conduct;
procedure
Sec. 4. (a) In a prosecution for a sex crime as defined in
IC 35-42-4:
(1) evidence of the victim's past sexual conduct;
(2) evidence of the past sexual conduct of a witness other than
the accused;
(3) opinion evidence of the victim's past sexual conduct;
(4) opinion evidence of the past sexual conduct of a witness
other than the accused;
(5) reputation evidence of the victim's past sexual conduct; and
(6) reputation evidence of the past sexual conduct of a witness
other than the accused;
may not be admitted, nor may reference be made to this evidence in
the presence of the jury, except as provided in this chapter.
(b) Notwithstanding subsection (a), evidence:
(1) of the victim's or a witness's past sexual conduct with the
defendant;
(2) which in a specific instance of sexual activity shows that
some person other than the defendant committed the act upon
which the prosecution is founded; or
(3) that the victim's pregnancy at the time of trial was not
caused by the defendant;
may be introduced if the judge finds, under the procedure provided
in subsection (c) of this section, that it is material to a fact at issue in
the case and that its inflammatory or prejudicial nature does not
outweigh its probative value.
(c) If the defendant or the state proposes to offer evidence
described in subsection (b) of this section, the following procedure
must be followed:
(1) The defendant or the state shall file a written motion not less
than ten (10) days before trial stating that it has an offer of
proof concerning evidence described in subsection (b) and its
relevancy to the case. This motion shall be accompanied by an
affidavit in which the offer of proof is stated.
(2) If the court finds that the offer of proof is sufficient, the
court shall order a hearing out of the presence of the jury, and
at the hearing allow the questioning of the victim or witness
regarding the offer of proof made by the defendant or the state.
At the conclusion of the hearing, if the court finds that evidence
proposed to be offered by the defendant or the state regarding the
sexual conduct of the victim or witness is admissible under
subsection (b) of this section, the court shall make an order stating
what evidence may be introduced by the defendant or the state and
the nature of the questions to be permitted. The defendant or the state
may then offer evidence under the order of the court.
(d) If new information is discovered within ten (10) days before
trial or during the course of the trial that might make evidence
described in subsection (b) of this chapter admissible, the judge shall
order a hearing out of the presence of the jury to determine whether
the proposed evidence is admissible under this chapter.
(e) This section does not limit the right of either the state or the
accused to impeach credibility by a showing of prior felony
convictions.
(f) If:
(1) a defendant files a motion under subsection (c)(1)
concerning evidence described in subsection (b)(3); and
(2) the state acknowledges that the victim's pregnancy is not due
to the conduct of the defendant;
the court shall instruct the jury that the victim's pregnancy is not due
to the conduct of the defendant. However, other evidence concerning
the pregnancy may not be admitted, and further reference to the
pregnancy may not be made in the presence of the jury.
As added by Acts 1981, P.L.298, SEC.6. Amended by P.L.322-1983,
SEC.1.
Last modified: May 24, 2006