Information Maintained by the Office of Code Revision Indiana Legislative Services Agency
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 the identity of the offender with DNA (deoxyribonucleic acid) evidence; or
        (2) could have discovered the identity of the offender with DNA (deoxyribonucleic acid) evidence by the exercise of due diligence.
However, for a Class B or Class C felony in which the state first discovered the identity of an offender with DNA (deoxyribonucleic acid) evidence after the time otherwise allowed for prosecution and before July 1, 2001, the one (1) year period provided in this subsection is extended to July 1, 2002.
    (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 that process cannot be served on him;
        (2) the accused person conceals evidence of the offense, and evidence sufficient to charge him 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.
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.

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.