Indiana 2023 Regular Session

Indiana Senate Bill SB0331 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
	1	+	ES0331.1
	2	+	March 9, 2023
	3	+	ENGROSSED
	4	+	SENATE BILL No. 331
	5	+	_____
	6	+	DIGEST OF SB 331 (Updated March 8, 2023 1:00 pm - DI 106)
	7	+	Citations Affected: IC 35-31.5; IC 35-37; IC 35-40.
	8	+	Synopsis: Deposition of child victim. Specifies that "deposition" or
	9	+	"depose", for purposes of a criminal case with a child victim, means a
	10	+	deposition pursuant to Indiana Trial Rule 30 or 31, or any other formal
	11	+	or informal statement or interview. Adds certain additional healthcare
	12	+	professionals to the list of healthcare professionals who may assist a
	13	+	court in determining whether a protected person can reasonably
	14	+	communicate in the physical presence of a defendant.
	15	+	Effective: Upon passage.
	16	+	Messmer, Koch, Randolph Lonnie M,
	17	+	Baldwin, Crider
	18	+	(HOUSE SPONSOR — JETER)
	19	+	January 12, 2023, read first time and referred to Committee on Judiciary.
	20	+	January 26, 2023, reported favorably — Do Pass.
	21	+	February 2, 2023, read second time, ordered engrossed. Engrossed.
	22	+	February 6, 2023, read third time, passed. Yeas 49, nays 0.
	23	+	HOUSE ACTION
	24	+	February 28, 2023, read first time and referred to Committee on Courts and Criminal Code.
	25	+	March 9, 2023, amended, reported — Do Pass.
	26	+	ES 331—LS 6825/DI 106 March 9, 2023
1	27		First Regular Session of the 123rd General Assembly (2023)
2	28		PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
3	29		Constitution) is being amended, the text of the existing provision will appear in this style type,
4	30		additions will appear in this style type, and deletions will appear in this style type.
5	31		Additions: Whenever a new statutory provision is being enacted (or a new constitutional
6	32		provision adopted), the text of the new provision will appear in this style type. Also, the
7	33		word NEW will appear in that style type in the introductory clause of each SECTION that adds
8	34		a new provision to the Indiana Code or the Indiana Constitution.
9	35		Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
10	36		between statutes enacted by the 2022 Regular Session of the General Assembly.
11		-	SENATE ENROLLED ACT No. 331
12		-	AN ACT to amend the Indiana Code concerning criminal law and
13		-	procedure.
	37	+	ENGROSSED
	38	+	SENATE BILL No. 331
	39	+	A BILL FOR AN ACT to amend the Indiana Code concerning
	40	+	criminal law and procedure.
14	41		Be it enacted by the General Assembly of the State of Indiana:
15		-	SECTION 1. IC 35-31.5-2-255.5, AS ADDED BY P.L.58-2020,
	42	+	1 SECTION 1. IC 35-31.5-2-255.5, AS ADDED BY P.L.58-2020,
	43	+	2 SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
	44	+	3 UPON PASSAGE]: Sec. 255.5. (a) "Provider", for purposes of
	45	+	4 IC 35-37-4, has the meaning set forth in IC 35-37-4-6(d).
	46	+	5 (b) "Provider", for purposes of IC 35-40.5, has the meaning set forth
	47	+	6 in IC 35-40.5-1-1.
	48	+	7 SECTION 2. IC 35-37-4-6, AS AMENDED BY P.L.153-2022,
	49	+	8 SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
	50	+	9 UPON PASSAGE]: Sec. 6. (a) This section applies to a criminal action
	51	+	10 involving the following offenses where the victim is a protected person
	52	+	11 under subsection (c)(1) or (c)(2):
	53	+	12 (1) Sex crimes (IC 35-42-4).
	54	+	13 (2) A battery offense included in IC 35-42-2 upon a child less
	55	+	14 than fourteen (14) years of age.
	56	+	15 (3) Kidnapping and confinement (IC 35-42-3).
	57	+	16 (4) Incest (IC 35-46-1-3).
	58	+	17 (5) Neglect of a dependent (IC 35-46-1-4).
	59	+	ES 331—LS 6825/DI 106 2
	60	+	1 (6) Human and sexual trafficking crimes (IC 35-42-3.5).
	61	+	2 (b) This section applies to a criminal action involving the following
	62	+	3 offenses where the victim is a protected person under subsection (c)(3):
	63	+	4 (1) Exploitation of a dependent or endangered adult
	64	+	5 (IC 35-46-1-12).
	65	+	6 (2) A sex crime (IC 35-42-4).
	66	+	7 (3) A battery offense included in IC 35-42-2.
	67	+	8 (4) Kidnapping, confinement, or interference with custody
	68	+	9 (IC 35-42-3).
	69	+	10 (5) Home improvement fraud (IC 35-43-6).
	70	+	11 (6) Fraud (IC 35-43-5).
	71	+	12 (7) Identity deception (IC 35-43-5-3.5).
	72	+	13 (8) Synthetic identity deception (IC 35-43-5-3.8) (before its
	73	+	14 repeal).
	74	+	15 (9) Theft (IC 35-43-4-2).
	75	+	16 (10) Conversion (IC 35-43-4-3).
	76	+	17 (11) Neglect of a dependent (IC 35-46-1-4).
	77	+	18 (12) Human and sexual trafficking crimes (IC 35-42-3.5).
	78	+	19 (c) As used in this section, "protected person" means:
	79	+	20 (1) a child who is less than fourteen (14) years of age at the time
	80	+	21 of the offense but less than eighteen (18) years of age at the time
	81	+	22 of trial;
	82	+	23 (2) an individual with a mental disability who has a disability
	83	+	24 attributable to an impairment of general intellectual functioning
	84	+	25 or adaptive behavior that:
	85	+	26 (A) is manifested before the individual is eighteen (18) years
	86	+	27 of age;
	87	+	28 (B) is likely to continue indefinitely;
	88	+	29 (C) constitutes a substantial impairment of the individual's
	89	+	30 ability to function normally in society; and
	90	+	31 (D) reflects the individual's need for a combination and
	91	+	32 sequence of special, interdisciplinary, or generic care,
	92	+	33 treatment, or other services that are of lifelong or extended
	93	+	34 duration and are individually planned and coordinated; or
	94	+	35 (3) an individual who is:
	95	+	36 (A) at least eighteen (18) years of age; and
	96	+	37 (B) incapable by reason of mental illness, intellectual
	97	+	38 disability, dementia, or other physical or mental incapacity of:
	98	+	39 (i) managing or directing the management of the individual's
	99	+	40 property; or
	100	+	41 (ii) providing or directing the provision of self-care.
	101	+	42 (d) As used in this section, "provider" means:
	102	+	ES 331—LS 6825/DI 106 3
	103	+	1 (1) a psychiatrist or physician licensed under IC 25-22.5;
	104	+	2 (2) a psychologist licensed under IC 25-33;
	105	+	3 (3) a marriage and family therapist licensed under 25-23.6-8;
	106	+	4 (4) an advanced practice registered nurse (APRN) with a
	107	+	5 certification as a psychiatric mental health nurse practitioner
	108	+	6 licensed under 25-23; or
	109	+	7 (5) a physician assistant specialized in psychiatry and mental
	110	+	8 health licensed under 25-27.5.
	111	+	9 (d) (e) A statement or videotape that:
	112	+	10 (1) is made by a person who at the time of trial is a protected
	113	+	11 person, as defined in subsection (c);
	114	+	12 (2) concerns an act that is a material element of an offense listed
	115	+	13 in subsection (a) or (b) that was allegedly committed against the
	116	+	14 person; and
	117	+	15 (3) is not otherwise admissible in evidence;
	118	+	16 is admissible in evidence in a criminal action for an offense listed in
	119	+	17 subsection (a) or (b) if the requirements of subsection (e) (f) are met.
	120	+	18 (e) (f) A statement or videotape described in subsection (d) (e) is
	121	+	19 admissible in evidence in a criminal action listed in subsection (a) or
	122	+	20 (b) if, after notice to the defendant of a hearing and of the defendant's
	123	+	21 right to be present, all of the following conditions are met:
	124	+	22 (1) The court finds, in a hearing:
	125	+	23 (A) conducted outside the presence of the jury; and
	126	+	24 (B) attended by the protected person in person or by using
	127	+	25 closed circuit television testimony as described in section 8(f)
	128	+	26 and 8(g) of this chapter;
	129	+	27 that the time, content, and circumstances of the statement or
	130	+	28 videotape provide sufficient indications of reliability.
	131	+	29 (2) The protected person:
	132	+	30 (A) testifies at the trial; or
	133	+	31 (B) is found by the court to be unavailable as a witness for one
	134	+	32 (1) of the following reasons:
	135	+	33 (i) From the testimony of a psychiatrist, physician, or
	136	+	34 psychologist, provider, and other evidence, if any, the court
	137	+	35 finds that the protected person's testifying in the physical
	138	+	36 presence of the defendant will cause the protected person to
	139	+	37 suffer serious emotional distress such that the protected
	140	+	38 person cannot reasonably communicate.
	141	+	39 (ii) The protected person cannot participate in the trial for
	142	+	40 medical reasons.
	143	+	41 (iii) The court has determined that the protected person is
	144	+	42 incapable of understanding the nature and obligation of an
	145	+	ES 331—LS 6825/DI 106 4
	146	+	1 oath.
	147	+	2 (f) (g) If a protected person is unavailable to testify at the trial for a
	148	+	3 reason listed in subsection (e)(2)(B), (f)(2)(B), a statement or videotape
	149	+	4 may be admitted in evidence under this section only if the protected
	150	+	5 person was available for cross-examination:
	151	+	6 (1) at the hearing described in subsection (e)(1); (f)(1); or
	152	+	7 (2) when the statement or videotape was made.
	153	+	8 (g) (h) A statement or videotape may not be admitted in evidence
	154	+	9 under this section unless the prosecuting attorney informs the
	155	+	10 defendant and the defendant's attorney at least ten (10) days before the
	156	+	11 trial of:
	157	+	12 (1) the prosecuting attorney's intention to introduce the statement
	158	+	13 or videotape in evidence; and
	159	+	14 (2) the content of the statement or videotape.
	160	+	15 (h) (i) If a statement or videotape is admitted in evidence under this
	161	+	16 section, the court shall instruct the jury that it is for the jury to
	162	+	17 determine the weight and credit to be given the statement or videotape
	163	+	18 and that, in making that determination, the jury shall consider the
	164	+	19 following:
	165	+	20 (1) The mental and physical age of the person making the
	166	+	21 statement or videotape.
	167	+	22 (2) The nature of the statement or videotape.
	168	+	23 (3) The circumstances under which the statement or videotape
	169	+	24 was made.
	170	+	25 (4) Other relevant factors.
	171	+	26 (i) (j) If a statement or videotape described in subsection (d) (e) is
	172	+	27 admitted into evidence under this section, a defendant may introduce
	173	+	28 a:
	174	+	29 (1) transcript; or
	175	+	30 (2) videotape;
	176	+	31 of the hearing held under subsection (e)(1) (f)(1) into evidence at trial.
	177	+	32 SECTION 3. IC 35-40-5-11.5, AS ADDED BY P.L.62-2020,
	178	+	33 SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
	179	+	34 UPON PASSAGE]: Sec. 11.5. (a) This section applies only to a
	180	+	35 criminal case involving a child less than sixteen (16) years of age who
	181	+	36 is the victim or alleged victim of a sex offense.
	182	+	37 (b) The following definitions apply throughout this section:
	183	+	38 (1) "Accused" or "the accused" means a person charged with
	184	+	39 committing a sex offense against a child victim. The term does
	185	+	40 not include an attorney who represents the accused.
	186	+	41 (2) "Child victim" means a child less than sixteen (16) years of
	187	+	42 age who is the victim or alleged victim of a sex offense.
	188	+	ES 331—LS 6825/DI 106 5
	189	+	1 (3) "Defendant" means a person charged with committing a sex
	190	+	2 offense against a child victim and an attorney who represents the
	191	+	3 defendant.
	192	+	4 (4) "Deposition" or "depose" means a deposition upon oral
	193	+	5 examination, or taking a deposition upon oral examination, as
	194	+	6 described in pursuant to Indiana Trial Rule 30 or Indiana Trial
	195	+	7 Rule 31, or any other formal or informal statement or
	196	+	8 interview.
	197	+	9 (5) "Sex offense" has the meaning set forth in IC 11-8-8-5.2.
	198	+	10 (c) A defendant may depose a child victim only in accordance with
	199	+	11 this section.
	200	+	12 (d) A defendant may not take the deposition of a child victim unless
	201	+	13 the defendant contacts the prosecuting attorney before contacting the
	202	+	14 child, and one (1) or more of the following apply:
	203	+	15 (1) The prosecuting attorney agrees to the deposition. The
	204	+	16 prosecuting attorney may condition the prosecuting attorney's
	205	+	17 agreement to the deposition upon the defendant's acceptance of
	206	+	18 the manner in which the deposition shall be conducted.
	207	+	19 (2) The court authorizes the deposition after finding, following a
	208	+	20 hearing under subsection (f), that there is a reasonable likelihood
	209	+	21 that the child victim will be unavailable for trial and the
	210	+	22 deposition is necessary to preserve the child victim's testimony.
	211	+	23 (3) The court authorizes the deposition after finding, following a
	212	+	24 hearing under subsection (g), that the deposition is necessary:
	213	+	25 (A) due to the existence of extraordinary circumstances; and
	214	+	26 (B) in the interest of justice.
	215	+	27 (e) If the prosecuting attorney does not agree to the deposition, the
	216	+	28 defendant may petition the court for authorization to depose the child
	217	+	29 victim under subsection (d)(2), (d)(3), or both subsection (d)(2) and
	218	+	30 (d)(3). Upon receipt of the petition, the court shall notify the
	219	+	31 prosecuting attorney and set a hearing to determine whether to
	220	+	32 authorize a deposition of the child victim, and, if applicable, to
	221	+	33 determine the manner in which the deposition shall be conducted.
	222	+	34 (f) The court shall authorize the deposition of a child victim under
	223	+	35 subsection (d)(2) if the defendant proves by a preponderance of the
	224	+	36 evidence that there is a reasonable likelihood that the child victim will
	225	+	37 be unavailable for trial and the deposition is necessary to preserve the
	226	+	38 child victim's testimony.
	227	+	39 (g) The court may not authorize the deposition of a child victim
	228	+	40 under subsection (d)(3) unless the defendant establishes by a
	229	+	41 preponderance of the evidence that the deposition is necessary:
	230	+	42 (1) due to the existence of extraordinary circumstances; and
	231	+	ES 331—LS 6825/DI 106 6
	232	+	1 (2) in the interest of justice.
	233	+	2 (h) If the court authorizes the deposition of a child victim under
	234	+	3 subsection (f) or (g), the court shall determine the manner in which the
	235	+	4 deposition shall be conducted, after considering:
	236	+	5 (1) the age of the child;
	237	+	6 (2) the rights of the victim under IC 35-40-5-1; and
	238	+	7 (3) any other relevant factors or special considerations.
	239	+	8 (i) If the court denies a petition to depose a child victim, the court
	240	+	9 shall issue a written order describing the reason for the denial.
	241	+	10 (j) If the court grants a request to depose a child victim, the court
	242	+	11 shall issue a written order describing the reason for granting the
	243	+	12 petition and setting forth the manner in which the deposition shall be
	244	+	13 conducted. The order shall:
	245	+	14 (1) expressly prohibit the accused from deposing or being present
	246	+	15 at the deposition of the child victim unless:
	247	+	16 (A) there is a reasonable likelihood that the child victim will
	248	+	17 be unavailable for trial;
	249	+	18 (B) the deposition is necessary to preserve the child victim's
	250	+	19 testimony; and
	251	+	20 (C) the presence of the accused is necessary to preserve the
	252	+	21 constitutional rights of the accused under the Sixth
	253	+	22 Amendment of the Constitution of the United States or Article
	254	+	23 1, Section 13 of the Constitution of the State of Indiana;
	255	+	24 (2) describe the manner in which the deposition shall be
	256	+	25 conducted; and
	257	+	26 (3) if applicable, issue a protective order under Indiana Trial Rule
	258	+	27 26(C).
	259	+	28 SECTION 4. An emergency is declared for this act.
	260	+	ES 331—LS 6825/DI 106 7
	261	+	COMMITTEE REPORT
	262	+	Madam President: The Senate Committee on Judiciary, to which
	263	+	was referred Senate Bill No. 331, has had the same under consideration
	264	+	and begs leave to report the same back to the Senate with the
	265	+	recommendation that said bill DO PASS.
	266	+	(Reference is to SB 331 as introduced.)
	267	+
	268	+	BROWN L, Chairperson
	269	+	Committee Vote: Yeas 8, Nays 1
	270	+	_____
	271	+	COMMITTEE REPORT
	272	+	Mr. Speaker: Your Committee on Courts and Criminal Code, to
	273	+	which was referred Senate Bill 331, has had the same under
	274	+	consideration and begs leave to report the same back to the House with
	275	+	the recommendation that said bill be amended as follows:
	276	+	Replace the effective date in SECTION 1 with "[EFFECTIVE
	277	+	UPON PASSAGE]".
	278	+	Page 1, between the enacting clause and line 1, begin a new
	279	+	paragraph and insert:
	280	+	"SECTION 1. IC 35-31.5-2-255.5, AS ADDED BY P.L.58-2020,
16	281		SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
17	282		UPON PASSAGE]: Sec. 255.5. (a) "Provider", for purposes of
18	283		IC 35-37-4, has the meaning set forth in IC 35-37-4-6(d).
19	284		(b) "Provider", for purposes of IC 35-40.5, has the meaning set forth
20	285		in IC 35-40.5-1-1.
21	286		SECTION 2. IC 35-37-4-6, AS AMENDED BY P.L.153-2022,
22	287		SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
23	288		UPON PASSAGE]: Sec. 6. (a) This section applies to a criminal action
24	289		involving the following offenses where the victim is a protected person
25	290		under subsection (c)(1) or (c)(2):
26	291		(1) Sex crimes (IC 35-42-4).
27	292		(2) A battery offense included in IC 35-42-2 upon a child less
28	293		than fourteen (14) years of age.
29	294		(3) Kidnapping and confinement (IC 35-42-3).
30	295		(4) Incest (IC 35-46-1-3).
31	296		(5) Neglect of a dependent (IC 35-46-1-4).
32	297		(6) Human and sexual trafficking crimes (IC 35-42-3.5).
33	298		(b) This section applies to a criminal action involving the following
	299	+	ES 331—LS 6825/DI 106 8
34	300		offenses where the victim is a protected person under subsection (c)(3):
35		-	(1) Exploitation of a dependent or endangered adult
36		-	SEA 331 — Concur 2
37		-	(IC 35-46-1-12).
	301	+	(1) Exploitation of a dependent or endangered adult (IC
	302	+	35-46-1-12).
38	303		(2) A sex crime (IC 35-42-4).
39	304		(3) A battery offense included in IC 35-42-2.
40		-	(4) Kidnapping, confinement, or interference with custody
41		-	~~(IC~~ 35-42-3).
	305	+	(4) Kidnapping, confinement, or interference with custody (IC
	306	+	35-42-3).
42	307		(5) Home improvement fraud (IC 35-43-6).
43	308		(6) Fraud (IC 35-43-5).
44	309		(7) Identity deception (IC 35-43-5-3.5).
45	310		(8) Synthetic identity deception (IC 35-43-5-3.8) (before its
46	311		repeal).
47	312		(9) Theft (IC 35-43-4-2).
48	313		(10) Conversion (IC 35-43-4-3).
49	314		(11) Neglect of a dependent (IC 35-46-1-4).
50	315		(12) Human and sexual trafficking crimes (IC 35-42-3.5).
51	316		(c) As used in this section, "protected person" means:
52	317		(1) a child who is less than fourteen (14) years of age at the time
53	318		of the offense but less than eighteen (18) years of age at the time
54	319		of trial;
55	320		(2) an individual with a mental disability who has a disability
56	321		attributable to an impairment of general intellectual functioning
57	322		or adaptive behavior that:
58	323		(A) is manifested before the individual is eighteen (18) years
59	324		of age;
60	325		(B) is likely to continue indefinitely;
61	326		(C) constitutes a substantial impairment of the individual's
62	327		ability to function normally in society; and
63	328		(D) reflects the individual's need for a combination and
64	329		sequence of special, interdisciplinary, or generic care,
65	330		treatment, or other services that are of lifelong or extended
66	331		duration and are individually planned and coordinated; or
67	332		(3) an individual who is:
68	333		(A) at least eighteen (18) years of age; and
69	334		(B) incapable by reason of mental illness, intellectual
70	335		disability, dementia, or other physical or mental incapacity of:
71	336		(i) managing or directing the management of the individual's
72	337		property; or
73	338		(ii) providing or directing the provision of self-care.
74	339		(d) As used in this section, "provider" means:
75	340		(1) a psychiatrist or physician licensed under IC 25-22.5;
76	341		(2) a psychologist licensed under IC 25-33;
	342	+	ES 331—LS 6825/DI 106 9
77	343		(3) a marriage and family therapist licensed under 25-23.6-8;
78	344		(4) an advanced practice registered nurse (APRN) with a
79		-	SEA 331 — Concur 3
80	345		certification as a psychiatric mental health nurse practitioner
81	346		licensed under 25-23; or
82	347		(5) a physician assistant specialized in psychiatry and mental
83	348		health licensed under 25-27.5.
84	349		(d) (e) A statement or videotape that:
85	350		(1) is made by a person who at the time of trial is a protected
86	351		person, as defined in subsection (c);
87	352		(2) concerns an act that is a material element of an offense listed
88	353		in subsection (a) or (b) that was allegedly committed against the
89	354		person; and
90	355		(3) is not otherwise admissible in evidence;
91	356		is admissible in evidence in a criminal action for an offense listed in
92	357		subsection (a) or (b) if the requirements of subsection (e) (f) are met.
93	358		(e) (f) A statement or videotape described in subsection (d) (e) is
94	359		admissible in evidence in a criminal action listed in subsection (a) or
95	360		(b) if, after notice to the defendant of a hearing and of the defendant's
96	361		right to be present, all of the following conditions are met:
97	362		(1) The court finds, in a hearing:
98	363		(A) conducted outside the presence of the jury; and
99	364		(B) attended by the protected person in person or by using
100	365		closed circuit television testimony as described in section 8(f)
101	366		and 8(g) of this chapter;
102	367		that the time, content, and circumstances of the statement or
103	368		videotape provide sufficient indications of reliability.
104	369		(2) The protected person:
105	370		(A) testifies at the trial; or
106	371		(B) is found by the court to be unavailable as a witness for one
107	372		(1) of the following reasons:
108	373		(i) From the testimony of a psychiatrist, physician, or
109	374		psychologist, provider, and other evidence, if any, the court
110	375		finds that the protected person's testifying in the physical
111	376		presence of the defendant will cause the protected person to
112	377		suffer serious emotional distress such that the protected
113	378		person cannot reasonably communicate.
114	379		(ii) The protected person cannot participate in the trial for
115	380		medical reasons.
116	381		(iii) The court has determined that the protected person is
117	382		incapable of understanding the nature and obligation of an
118	383		oath.
119	384		(f) (g) If a protected person is unavailable to testify at the trial for a
	385	+	ES 331—LS 6825/DI 106 10
120	386		reason listed in subsection (e)(2)(B), (f)(2)(B), a statement or videotape
121	387		may be admitted in evidence under this section only if the protected
122		-	SEA 331 — Concur 4
123	388		person was available for cross-examination:
124	389		(1) at the hearing described in subsection (e)(1); (f)(1); or
125	390		(2) when the statement or videotape was made.
126	391		(g) (h) A statement or videotape may not be admitted in evidence
127	392		under this section unless the prosecuting attorney informs the
128	393		defendant and the defendant's attorney at least ten (10) days before the
129	394		trial of:
130	395		(1) the prosecuting attorney's intention to introduce the statement
131	396		or videotape in evidence; and
132	397		(2) the content of the statement or videotape.
133	398		(h) (i) If a statement or videotape is admitted in evidence under this
134	399		section, the court shall instruct the jury that it is for the jury to
135	400		determine the weight and credit to be given the statement or videotape
136	401		and that, in making that determination, the jury shall consider the
137	402		following:
138	403		(1) The mental and physical age of the person making the
139	404		statement or videotape.
140	405		(2) The nature of the statement or videotape.
141	406		(3) The circumstances under which the statement or videotape
142	407		was made.
143	408		(4) Other relevant factors.
144	409		(i) (j) If a statement or videotape described in subsection (d) (e) is
145	410		admitted into evidence under this section, a defendant may introduce
146	411		a:
147	412		(1) transcript; or
148	413		(2) videotape;
149		-	of the hearing held under subsection (e)(1) (f)(1) into evidence at trial.
150		-	SECTION 3. IC 35-40-5-11.5, AS ADDED BY P.L.62-2020,
151		-	SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
152		-	UPON PASSAGE]: Sec. 11.5. (a) This section applies only to a
153		-	criminal case involving a child less than sixteen (16) years of age who
154		-	is the victim or alleged victim of a sex offense.
155		-	(b) The following definitions apply throughout this section:
156		-	(1) "Accused" or "the accused" means a person charged with
157		-	committing a sex offense against a child victim. The term does
158		-	not include an attorney who represents the accused.
159		-	(2) "Child victim" means a child less than sixteen (16) years of
160		-	age who is the victim or alleged victim of a sex offense.
161		-	(3) "Defendant" means a person charged with committing a sex
162		-	offense against a child victim and an attorney who represents the
163		-	defendant.
164		-	(4) "Deposition" or "depose" means a deposition upon oral
165		-	SEA 331 — Concur 5
166		-	examination, or taking a deposition upon oral examination, as
167		-	described in pursuant to Indiana Trial Rule 30 or Indiana Trial
168		-	Rule 31, or any other formal or informal statement or
169		-	interview.
170		-	(5) "Sex offense" has the meaning set forth in IC 11-8-8-5.2.
171		-	(c) A defendant may depose a child victim only in accordance with
172		-	this section.
173		-	(d) A defendant may not take the deposition of a child victim unless
174		-	the defendant contacts the prosecuting attorney before contacting the
175		-	child, and one (1) or more of the following apply:
176		-	(1) The prosecuting attorney agrees to the deposition. The
177		-	prosecuting attorney may condition the prosecuting attorney's
178		-	agreement to the deposition upon the defendant's acceptance of
179		-	the manner in which the deposition shall be conducted.
180		-	(2) The court authorizes the deposition after finding, following a
181		-	hearing under subsection (f), that there is a reasonable likelihood
182		-	that the child victim will be unavailable for trial and the
183		-	deposition is necessary to preserve the child victim's testimony.
184		-	(3) The court authorizes the deposition after finding, following a
185		-	hearing under subsection (g), that the deposition is necessary:
186		-	(A) due to the existence of extraordinary circumstances; and
187		-	(B) in the interest of justice.
188		-	(e) If the prosecuting attorney does not agree to the deposition, the
189		-	defendant may petition the court for authorization to depose the child
190		-	victim under subsection (d)(2), (d)(3), or both subsection (d)(2) and
191		-	(d)(3). Upon receipt of the petition, the court shall notify the
192		-	prosecuting attorney and set a hearing to determine whether to
193		-	authorize a deposition of the child victim, and, if applicable, to
194		-	determine the manner in which the deposition shall be conducted.
195		-	(f) The court shall authorize the deposition of a child victim under
196		-	subsection (d)(2) if the defendant proves by a preponderance of the
197		-	evidence that there is a reasonable likelihood that the child victim will
198		-	be unavailable for trial and the deposition is necessary to preserve the
199		-	child victim's testimony.
200		-	(g) The court may not authorize the deposition of a child victim
201		-	under subsection (d)(3) unless the defendant establishes by a
202		-	preponderance of the evidence that the deposition is necessary:
203		-	(1) due to the existence of extraordinary circumstances; and
204		-	(2) in the interest of justice.
205		-	(h) If the court authorizes the deposition of a child victim under
206		-	subsection (f) or (g), the court shall determine the manner in which the
207		-	deposition shall be conducted, after considering:
208		-	SEA 331 — Concur 6
209		-	(1) the age of the child;
210		-	(2) the rights of the victim under IC 35-40-5-1; and
211		-	(3) any other relevant factors or special considerations.
212		-	(i) If the court denies a petition to depose a child victim, the court
213		-	shall issue a written order describing the reason for the denial.
214		-	(j) If the court grants a request to depose a child victim, the court
215		-	shall issue a written order describing the reason for granting the
216		-	petition and setting forth the manner in which the deposition shall be
217		-	conducted. The order shall:
218		-	(1) expressly prohibit the accused from deposing or being present
219		-	at the deposition of the child victim unless:
220		-	(A) there is a reasonable likelihood that the child victim will
221		-	be unavailable for trial;
222		-	(B) the deposition is necessary to preserve the child victim's
223		-	testimony; and
224		-	(C) the presence of the accused is necessary to preserve the
225		-	constitutional rights of the accused under the Sixth
226		-	Amendment of the Constitution of the United States or Article
227		-	1, Section 13 of the Constitution of the State of Indiana;
228		-	(2) describe the manner in which the deposition shall be
229		-	conducted; and
230		-	(3) if applicable, issue a protective order under Indiana Trial Rule
231		-	26(C).
232		-	SECTION 4. An emergency is declared for this act.
233		-	SEA 331 — Concur President of the Senate
234		-	President Pro Tempore
235		-	Speaker of the House of Representatives
236		-	Governor of the State of Indiana
237		-	Date: Time:
238		-	SEA 331 — Concur
	414	+	of the hearing held under subsection (e)(1) (f)(1) into evidence at
	415	+	trial.".
	416	+	Page 3, after line 21, begin a new paragraph and insert:
	417	+	"SECTION 3. An emergency is declared for this act.".
	418	+	Renumber all SECTIONS consecutively.
	419	+	and when so amended that said bill do pass.
	420	+	(Reference is to SB 331 as printed January 27, 2023.)
	421	+	MCNAMARA
	422	+	Committee Vote: yeas 12, nays 0.
	423	+	ES 331—LS 6825/DI 106