January 28, 2011
SENATE BILL No. 216
_____
DIGEST OF SB 216
(Updated January 26, 2011 12:56 pm - DI 106)
Citations Affected: IC 35-36.
Synopsis: Access to child pornography in criminal discovery.
Prohibits the reproduction or removal of child pornography as part of
discovery in a criminal prosecution if the state provides the defendant
with the opportunity to examine the material in a state or local facility,
unless the defendant demonstrates a need to reproduce or remove the
material. Requires a court to impose certain restrictions on the use of
removed or reproduced material.
Effective: July 1, 2011.
January 5, 2011, read first time and referred to Committee on Judiciary.
January 27, 2011, amended, reported favorably _ Do Pass.
January 28, 2011
First Regular Session 117th General Assembly (2011)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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SENATE BILL No. 216
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 35-36-10; (11)SB0216.1.1. -->
SECTION 1. IC 35-36-10 IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2011]:
Chapter 10. Child Pornography and Discovery
Sec. 1. This chapter applies only in a criminal proceeding.
Sec. 2. As used in this chapter, "child pornography" include:
(1) material described in IC 35-42-4-4(c); and
(2) material defined in 18 U.S.C. 2256(8).
Sec. 3. Except as provided in section 5 of this chapter, in any
criminal proceeding, material constituting child pornography must
remain in the custody of the state or the court.
Sec. 4. Except as provided in section 5 of this chapter, a court
shall deny any request by the defendant in a criminal proceeding
to copy, photograph, duplicate, or otherwise reproduce any
material that constitutes child pornography if the state provides
ample opportunity for inspection, viewing, and examination of the
material by:
(1) the defendant;
(2) the defendant's attorney; and
(3) any individual the defendant seeks to qualify as an expert;
at a state or local facility.
Sec. 5. (a) A court may permit a defendant to copy, photograph,
duplicate, or otherwise reproduce material that constitutes child
pornography if the defendant demonstrates:
(1) that copying, photographing, duplicating, or otherwise
reproducing the material, for purposes of a forensic
examination or for another proper purpose, is necessary to
the defendant's defense; and
(2) the purpose described in subdivision (1) cannot be
accomplished:
(A) effectively; or
(B) without imposing an undue burden on the defense;
at a state or local facility.
(b) If a court permits a defendant to copy, photograph,
duplicate, or otherwise reproduce material that constitutes child
pornography, the court shall issue a protective order under
Indiana Trial Rule 26 with respect to the material. The protective
order must:
(1) specifically describe which persons may have access to the
material, and prohibit any person not described in the order
from having access to the material;
(2) permit only those persons whose access to the material is
necessary for the purposes described in subsection (a)(1) to
have access to the material;
(3) provide for the destruction or return of any copy,
photograph, duplicate, or other reproduction of the material
when the item is no longer required for the defendant's
defense;
(4) prohibit the further dissemination of the material; and
(5) prohibit the defendant from having direct access to the
material.
The protective order may include any other provision to safeguard
the material.