Sec. 2. (a) At the trial of a criminal case in which the
defendant intends to interpose the defense of insanity, evidence may be
introduced to prove the defendant's sanity or insanity at the time at
which the defendant is alleged to have committed the offense charged
in the indictment or information.
(b) When notice of an insanity defense is filed in a case in which the
defendant is not charged with a homicide offense under IC 35-42-1, the
court shall appoint two (2) or three (3) competent disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the state psychology board as
health service providers in psychology; or
(3) physicians;
who have expertise in determining insanity. At least one (1) of the
individuals appointed under this subsection must be a psychiatrist or
psychologist. The individuals appointed under this subsection shall
examine the defendant and testify at the trial. This testimony shall
follow the presentation of the evidence for the prosecution and for the
defense, including the testimony of any mental health experts employed
by the state or by the defense.
(c) When notice of an insanity defense is filed in a case in which the
defendant is charged with a homicide offense under IC 35-42-1, the
court shall appoint two (2) or three (3) competent disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the state psychology board as
health service providers in psychology; or
(3) physicians;
who have expertise in determining insanity. At least one (1) individual
appointed under this subsection must be a psychiatrist and at least one
(1) individual appointed under this subsection must be a psychologist.
The individuals appointed under this subsection shall examine the
defendant and testify at the trial. This testimony must follow the
presentation of the evidence for the prosecution and for the defense,
including the testimony of any mental health experts employed by the
state or by the defense.
(d) If a defendant does not adequately communicate, participate, and
cooperate with the mental health witnesses appointed by the court after
being ordered to do so by the court, the defendant may not present as
evidence the testimony of any other mental health witness:
(1) with whom the defendant adequately communicated,
participated, and cooperated; and
(2) whose opinion is based upon examinations of the defendant;
unless the defendant shows by a preponderance of the evidence that the
defendant's failure to communicate, participate, or cooperate with the
mental health witnesses appointed by the court was caused by the
defendant's mental illness.
(e) The mental health witnesses appointed by the court may be
cross-examined by both the prosecution and the defense, and each side
may introduce evidence in rebuttal to the testimony of a mental health
witness.
As added by Acts 1981, P.L.298, SEC.5. Amended by
P.L.321-1983, SEC.2; P.L.19-1986, SEC.59; P.L.149-1987, SEC.119;
P.L.77-2004, SEC.3; P.L.54-2014, SEC.1.
Notes of Decisions
Cited in
38
cases (
4 in the last 5 years), 1984–2025 · leading case:
Mendenhall v. State, 963 N.E.2d 553 (Ind. Ct. App. 2012).
Mendenhall v. State, 963 N.E.2d 553 (Ind. Ct. App. 2012).
· cites it 14× “Ind. Code § 35-36-2-2 (b); Crawford v. State, 770 N.”
Galloway v. State, 938 N.E.2d 699 (Ind. 2010).
· cites it 8× “Indiana Code section 35-36-2-2 provides for the use of expert testimony to assist the trier of fact in determining the defendant's insanity.”
State v. Berryman, 796 N.E.2d 741 (Ind. Ct. App. 2003).
· cites it 16× “He further explained that he objected to the appointment of court-appointed experts *743 pursuant to Indiana Code § 35-36-2-2 [1] and asked the court to waive the appointment.”
Lori Barcroft v. State of Indiana, 111 N.E.3d 997 (Ind. 2018).
· cites it 8× “" Ind. Code § 35-36-2-2 (b) (2008 Repl.). The legislature even specifies when the experts are to testify at trial-after the State's and defense's cases-in-chief.”
Taylor v. State, 659 N.E.2d 535 (Ind. 1995).
· cites it 9× “See Ind.Code Ann. 35-36-2-2 (Burns 1994). If the defendant proposes to introduce his own proof on the issue of insanity, a stronger case for waiver would be present; however, such is not the case here.”
Heald v. State, 492 N.E.2d 671 (Ind. 1986).
· cites it 4× “Code § 35-5-2-2 (recodified as Ind. Code § 35-36-2-2 ). The court called all three as the court's own witnesses and examined each concerning their training and experience.”
Fernbach v. State, 954 N.E.2d 1080 (Ind. Ct. App. 2011).
· cites it 2× “Although Indiana Code section 35-36-2-2 (2004) provides for the use of expert testimony to assist the jury in determining the defendant’s insanity, the jury has extremely wide latitude and such expert testimony is merely advisory.”
Butrum v. State, 469 N.E.2d 1174 (Ind. 1984).
· cites it 6× “Appellant claims Ind. Code § 35-36-2-2 violates his right to a fair trial.”
Derrick Weedman v. State of Indiana, 21 N.E.3d 873 (Ind. Ct. App. 2014).
· cites it 2× “Indiana Code Section 35-36-2-2 provides that psychologists or psychiatrists appointed to examine a defendant shall testify after "the presentation of the evidence for the prosecution and for the defense, including the testimony of any mental health experts employed by the state…”
Stout v. State, 528 N.E.2d 476 (Ind. 1988).
· cites it 4× “After defendant filed notice of mental defect as a defense, the trial court appointed three psychiatrists pursuant to Ind. Code § 35-36-2-2 , which requires each of the psychiatrists be disinterested.”
Fredrick Laux v. Dushan Zatecky, 890 F.3d 666 (7th Cir. 2018).
“2017) ; see also Ind. Code § 35-36-2-2 (2002). As noted, Laux did not qualify for an insanity defense, but by requesting mental-health examinations, his lawyer made it possible for the jury to hear independent expert opinions about his personal history and mental-health…”
Alexander v. State, 819 N.E.2d 533 (Ind. Ct. App. 2004).
· cites it 4× “Alexander also contends that the trial court committed fundamental error by permitting a court-appointed psychologist to testify in the middle of the State's case-in-chief, in violation of Indiana Code Section 35-36-2-2. Because the propriety of the order of trial is unlikely to…”
— Ind. Code § 35-36-2-2(a) — 1 case
— Ind. Code § 35-36-2-2(b) — 5 cases
Galloway v. State, 938 N.E.2d 699 (Ind. 2010).
“Indiana Code section 35-36-2-2 provides for the use of expert testimony to assist the trier of fact in determining the defendant's insanity.”
Mendenhall v. State, 963 N.E.2d 553 (Ind. Ct. App. 2012).
“Ind. Code § 35-36-2-2 (b); Crawford v. State, 770 N.”
— Ind. Code § 35-36-2-2(c) — 3 cases
Lori Barcroft v. State of Indiana, 111 N.E.3d 997 (Ind. 2018).
“" Ind. Code § 35-36-2-2 (b) (2008 Repl.). The legislature even specifies when the experts are to testify at trial-after the State's and defense's cases-in-chief.”
— Ind. Code § 35-36-2-2(d) — 2 cases
Mendenhall v. State, 963 N.E.2d 553 (Ind. Ct. App. 2012).
“Ind. Code § 35-36-2-2 (b); Crawford v. State, 770 N.”
— Ind. Code § 35-36-2-2(e) — 1 case
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