Citations Affected: IC 3-6-3.9.
Synopsis: Investigatory powers of the secretary of state. Requires the
secretary of state to investigate complaints alleging violations of
Indiana election law. Gives the secretary of state certain investigative
powers, including the power to issue subpoenas and civil investigative
demands. Requires the attorney general to provide legal assistance to
the secretary of state in the investigation of complaints. Authorizes the
secretary of state to seek the appointment of a special prosecutor if the
secretary of state considers the appointment necessary in the
investigation of complaints.
Effective: July 1, 2007.
January 8, 2007, read first time and referred to Committee on Local Government and
A BILL FOR AN ACT to amend the Indiana Code concerning
secretary of state may seek the appointment of a special prosecutor
under IC 33-39-1-6 if the secretary of state considers appointment
of a special prosecutor necessary to implement this chapter.
Sec. 3. (a) In conducting an investigation under this chapter, the secretary of state may do any of the following:
(1) Issue and serve subpoenas requiring:
(A) the appearance of a witness in person before the secretary of state or any person designated by the secretary of state; or
(B) the production of books, papers, electronic data, and documents or other things.
(2) Question witnesses.
(3) Require witnesses to give testimony under oath.
(4) Transcribe testimony provided by witnesses.
(5) Copy, examine, or inspect, or cause to be copied, examined, or inspected, any books, papers, electronic data, records of investigations, summaries of investigations, and documents or other things contained or found in any public office or other place (including, without limitation, evidence under the control of the state police department, local law enforcement personnel, prosecuting attorneys, circuit court clerks, county election boards, county boards of registration, and boards of elections and registration), whether or not the books, papers, electronic data, records of investigations, summaries of investigations, and documents or other things are or contain confidential information. The secretary of state shall maintain the confidentiality of any information obtained under this subdivision.
(6) Examine, inspect, or test, or cause to be examined, inspected, or tested, any machine, computer, or other thing.
(7) Issue a civil investigative demand.
(8) Apply to a court to enforce a subpoena, civil investigative demand, or any other investigative request issued under this chapter.
(9) Exercise all the investigative powers of a prosecuting attorney.
(b) Only the secretary of state or a person designated by the secretary of state may exercise the powers provided in this section.
Sec. 4. (a) This section applies if:
(1) a person disobeys a lawful:
(A) subpoena issued under this chapter; or
(B) demand issued under this chapter requiring the
production of books, accounts, papers, records, documents,
or other evidence or information; or
(2) a witness refuses to:
(A) appear when subpoenaed;
(B) testify to any matter regarding which the witness may lawfully be questioned; or
(C) take or subscribe an oath required under this chapter.
(b) The secretary of state may file a written petition with the circuit or superior court of the county in which the investigation is being or will be conducted, where the demand is made, or where production is ordered to be made to compel:
(1) obedience to the lawful requirements of the subpoena, order, or demand;
(2) the production of the necessary or required books, papers, records, documents, or other evidence or information; or
(3) a witness to:
(A) appear in any county in Indiana and to testify to any matter regarding which the witness may lawfully be interrogated; or
(B) take or subscribe to an oath required under this chapter.
(c) The court shall hold a hearing to determine whether the person referred to in subsection (a)(1) may lawfully refuse to comply with the subpoena or demand or whether the witness referred to in subsection (a)(2) may lawfully refuse to appear, take an oath, and testify.
(d) If the court determines that the person referred to in subsection (a)(1) or the witness referred to in subsection (a)(2), based upon the person's or witness's privilege against self-incrimination, may properly refuse to answer a particular question or produce a particular item, the court shall grant use immunity to the person or witness at the written request of the secretary of state. The court shall instruct the person or witness, by written order or in open court, that:
(1) evidence the person or witness gives, or evidence derived from that evidence, may not be used in any criminal proceedings against the person or witness, unless the evidence is volunteered by the person or witness or is not responsive to a question; and
(2) the person or witness must answer the questions asked or produce the items requested.
A grant of use immunity under this subsection does not prohibit
the use of evidence that the person or witness gives in an
investigation from being used in a prosecution for perjury under
(e) If a person:
(1) refuses to give the evidence after the person has been granted use immunity under subsection (d); or
(2) otherwise fails, refuses, or neglects to comply with a court order under this section;
the court shall punish the person for contempt of court.
Sec. 5. (a) At the secretary of state's request, the attorney general shall give all necessary assistance to the secretary of state to implement this chapter.
(b) The attorney general shall employ legal and other professional services necessary to adequately and fully assist the secretary of state as the secretary of state requests under this section.