CHAPTER 4. STANDARD OF PROOF AND BARS TO PROSECUTION
IC 35-41-4
Chapter 4. Standard of Proof and Bars to Prosecution
IC 35-41-4-1
Standard of proof; insanity defense
Sec. 1. (a) A person may be convicted of an offense only if his
guilt is proved beyond a reasonable doubt.
(b) Notwithstanding subsection (a), the burden of proof is on the
defendant to establish the defense of insanity (IC 35-41-3-6) by a
preponderance of the evidence.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,
P.L.340, SEC.16; Acts 1978, P.L.145, SEC.9.
IC 35-41-4-2
Periods of limitation
Sec. 2. (a) Except as otherwise provided in this section, a
prosecution for an offense is barred unless it is commenced:
(1) within five (5) years after the commission of the offense, in
the case of a Class B, Class C, or Class D felony; or
(2) within two (2) years after the commission of the offense, in
the case of a misdemeanor.
(b) A prosecution for a Class B or Class C felony that would
otherwise be barred under this section may be commenced within
one (1) year after the earlier of the date on which the state:
(1) first discovers evidence sufficient to charge the offender
with the offense through DNA (deoxyribonucleic acid) analysis;
or
(2) could have discovered evidence sufficient to charge the
offender with the offense through DNA (deoxyribonucleic acid)
analysis by the exercise of due diligence.
(c) A prosecution for a Class A felony may be commenced at any
time.
(d) A prosecution for murder may be commenced:
(1) at any time; and
(2) regardless of the amount of time that passes between:
(A) the date a person allegedly commits the elements of
murder; and
(B) the date the alleged victim of the murder dies.
(e) A prosecution for the following offenses is barred unless
commenced before the date that the alleged victim of the offense
reaches thirty-one (31) years of age:
(1) IC 35-42-4-3(a) (Child molesting).
(2) IC 35-42-4-5 (Vicarious sexual gratification).
(3) IC 35-42-4-6 (Child solicitation).
(4) IC 35-42-4-7 (Child seduction).
(5) IC 35-46-1-3 (Incest).
(f) A prosecution for forgery of an instrument for payment of
money, or for the uttering of a forged instrument, under
IC 35-43-5-2, is barred unless it is commenced within five (5) years
after the maturity of the instrument.
(g) If a complaint, indictment, or information is dismissed because
of an error, defect, insufficiency, or irregularity, a new prosecution
may be commenced within ninety (90) days after the dismissal even
if the period of limitation has expired at the time of dismissal, or will
expire within ninety (90) days after the dismissal.
(h) The period within which a prosecution must be commenced
does not include any period in which:
(1) the accused person is not usually and publicly resident in
Indiana or so conceals himself or herself that process cannot be
served;
(2) the accused person conceals evidence of the offense, and
evidence sufficient to charge the person with that offense is
unknown to the prosecuting authority and could not have been
discovered by that authority by exercise of due diligence; or
(3) the accused person is a person elected or appointed to office
under statute or constitution, if the offense charged is theft or
conversion of public funds or bribery while in public office.
(i) For purposes of tolling the period of limitation only, a
prosecution is considered commenced on the earliest of these dates:
(1) The date of filing of an indictment, information, or
complaint before a court having jurisdiction.
(2) The date of issuance of a valid arrest warrant.
(3) The date of arrest of the accused person by a law
enforcement officer without a warrant, if the officer has
authority to make the arrest.
(j) A prosecution is considered timely commenced for any offense
to which the defendant enters a plea of guilty, notwithstanding that
the period of limitation has expired.
(k) The following apply to the specified offenses:
(1) A prosecution for an offense under IC 30-2-9-7(b) (misuse
of funeral trust funds) is barred unless commenced within five
(5) years after the date of death of the settlor (as described in
IC 30-2-9).
(2) A prosecution for an offense under IC 30-2-10-9(b) (misuse
of funeral trust funds) is barred unless commenced within five
(5) years after the date of death of the settlor (as described in
IC 30-2-10).
(3) A prosecution for an offense under IC 30-2-13-38(f) (misuse
of funeral trust or escrow account funds) is barred unless
commenced within five (5) years after the date of death of the
purchaser (as defined in IC 30-2-13-9).
(l) A prosecution for an offense under IC 23-14-48-9 is barred
unless commenced within five (5) years after the earlier of the date
on which the state:
(1) first discovers evidence sufficient to charge the offender
with the offense; or
(2) could have discovered evidence sufficient to charge the
offender with the offense by the exercise of due diligence.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,
P.L.340, SEC.17; P.L.309-1985, SEC.2; P.L.232-1993, SEC.3;
P.L.9-2000, SEC.1; P.L.48-2001, SEC.1; P.L.1-2002, SEC.149;
P.L.97-2004, SEC.124; P.L.6-2006, SEC.7, P.L.140-2006, SEC.30,
and P.L.173-2006, SEC.30; P.L.143-2009, SEC.47.
IC 35-41-4-3
When prosecution barred for same offense
Sec. 3. (a) A prosecution is barred if there was a former
prosecution of the defendant based on the same facts and for
commission of the same offense and if:
(1) the former prosecution resulted in an acquittal or a
conviction of the defendant (A conviction of an included
offense constitutes an acquittal of the greater offense, even if
the conviction is subsequently set aside.); or
(2) the former prosecution was terminated after the jury was
impaneled and sworn or, in a trial by the court without a jury,
after the first witness was sworn, unless (i) the defendant
consented to the termination or waived, by motion to dismiss or
otherwise, his right to object to the termination, (ii) it was
physically impossible to proceed with the trial in conformity
with law, (iii) there was a legal defect in the proceedings that
would make any judgment entered upon a verdict reversible as
a matter of law, (iv) prejudicial conduct, in or outside the
courtroom, made it impossible to proceed with the trial without
injustice to either the defendant or the state, (v) the jury was
unable to agree on a verdict, or (vi) false statements of a juror
on voir dire prevented a fair trial.
(b) If the prosecuting authority brought about any of the
circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this
section, with intent to cause termination of the trial, another
prosecution is barred.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,
P.L.340, SEC.18.
IC 35-41-4-4
When prosecution barred for different offense
Sec. 4. (a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a
different offense or for the same offense based on different
facts.
(2) The former prosecution resulted in an acquittal or a
conviction of the defendant or in an improper termination under
section 3 of this chapter.
(3) The instant prosecution is for an offense with which the
defendant should have been charged in the former prosecution.
(b) A prosecution is not barred under this section if the offense on
which it is based was not consummated when the trial under the
former prosecution began.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,
P.L.340, SEC.19.
IC 35-41-4-5
Former prosecution in another jurisdiction a bar
Sec. 5. In a case in which the alleged conduct constitutes an
offense within the concurrent jurisdiction of Indiana and another
jurisdiction, a former prosecution in any other jurisdiction is a bar to
a subsequent prosecution for the same conduct in Indiana, if the
former prosecution resulted in an acquittal or a conviction of the
defendant or in an improper termination under section 3 of this
chapter.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,
P.L.340, SEC.20.
IC 35-41-4-6
Invalid or fraudulently procured prosecution not a bar
Sec. 6. A former prosecution is not a bar under section 3, 4, or 5
of this chapter if:
(1) it was before a court that lacked jurisdiction over the
defendant or the offense;
(2) it was procured by the defendant without the knowledge of
the prosecuting authority and with intent to avoid a more severe
sentence that might otherwise have been imposed; or
(3) it resulted in a conviction that was set aside, reversed,
vacated, or held invalid in a subsequent proceeding, unless the
defendant was adjudged not guilty or ordered discharged.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977,
P.L.340, SEC.21.