Section 33-39-10-2 - Special prosecutor; appointment(a) A person may be appointed as a special prosecutor:(1) as provided under this section; or(2) in accordance with IC 4-2-7-7.(b) A circuit court or superior court judge: (1) shall appoint a special prosecutor if: (A) any person, other than a prosecuting attorney or the prosecuting attorney's deputy, files a verified petition requesting the appointment of a special prosecutor; and(B) the prosecuting attorney agrees that a special prosecutor is needed;(2) may appoint a special prosecutor if: (A) a person files a verified petition requesting the appointment of a special prosecutor; and(B) the court, after: (i) notice is given to the prosecuting attorney; and(ii) an evidentiary hearing is conducted at which the prosecuting attorney is given an opportunity to be heard; finds by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest or there is probable cause to believe that the prosecuting attorney has committed a crime;
(3) may appoint a special prosecutor if: (A) the prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and(B) the court finds that the appointment is necessary to avoid the appearance of impropriety;(4) may appoint a special prosecutor if: (A) an elected public official who is a defendant in a criminal proceeding files a verified petition requesting a special prosecutor within ten (10) days after the date of the initial hearing; and(B) the court finds that the appointment of a special prosecutor is in the best interests of justice; and(5) shall appoint a special prosecutor if:(A) a previously appointed special prosecutor:(i) files a motion to withdraw as special prosecutor; or(ii) has become incapable of continuing to represent the interests of the state; and(B) the court finds that the facts that established the basis for the initial appointment of a special prosecutor still exist. The elected prosecuting attorney who serves in the jurisdiction of the appointing court shall receive notice of all pleadings filed and orders issued under this subdivision.
(c) A person appointed to serve as a special prosecutor:(1) must consent to the appointment; and(2) must be: (A) the prosecuting attorney or a deputy prosecuting attorney in a county other than the county in which the person is to serve as special prosecutor; or(B) a senior prosecuting attorney as described in section 1 of this chapter. A senior prosecuting attorney may be appointed to serve as a special prosecutor in a county in which the senior prosecuting attorney previously served if the court finds that the appointment would not create the appearance of impropriety.(d) A person appointed to serve as a special prosecutor in a county has the same powers as the prosecuting attorney of the county. However, the appointing judge shall limit the scope of the special prosecutor's duties to include only the investigation or prosecution of a particular case or particular grand jury investigation.(e) Upon making an appointment under this section, the court shall establish the length of the special prosecutor's term. At least one (1) time every six (6) months throughout the appointed term, a special prosecutor shall file a progress report with the appointing court. A progress report:(1) must inform the court of the:(A) status of the investigation; and(B) estimated time for completion of the special prosecutor's duties; and(2) may not: (A) include substantive facts or legal issues; or(B) offer preliminary conclusions. The court may extend the term of appointment upon the request of the special prosecutor or terminate any appointment if the special prosecutor has failed to file reports or a request for an extended term under this subsection.
(f) If the target of an investigation by the special prosecutor is a public servant (as defined in IC 35-31.5-2-261), the court shall order the special prosecutor to file a report of the investigation with the court at the conclusion of the investigation. A report filed under this subsection is a public record under IC 5-14-3.(g) If a special prosecutor is not regularly employed as a full-time prosecuting attorney or full-time deputy prosecuting attorney, the compensation for the special prosecutor's services: (1) shall be paid, as incurred, to the special prosecutor, following an application to the county auditor, from the unappropriated funds of the appointing county; and(2) may not exceed: (A) an hourly rate based upon the regular salary of a full-time prosecuting attorney of the appointing circuit;(B) travel expenses and reasonable accommodation expenses actually incurred; and(C) other reasonable expenses actually incurred, including the costs of investigation, trial and discovery preparation, and other trial expenses. The amount of compensation a special prosecutor receives for services performed during a calendar day under subdivision (2)(A) may not exceed the amount of compensation a full-time prosecuting attorney would receive in salary for the calendar day.
(h) If the special prosecutor is regularly employed as a full-time prosecuting attorney or deputy prosecuting attorney, the compensation for the special prosecutor's services: (1) shall be paid out of the appointing county's unappropriated funds to the treasurer of the county in which the special prosecutor regularly serves; and(2) must include a per diem equal to the regular salary of a full-time prosecuting attorney of the appointing circuit, travel expenses, and reasonable accommodation expenses actually incurred.Added by P.L. 57-2014, SEC. 10, eff. 7/1/2014.