Title 19 — EVIDENCE

(a) Prohibited uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) A guilty plea that was later withdrawn; (2) A nolo contendere plea; (3) A statement made during a pro…

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, own…

No statement made by a health care provider apologizing for an adverse outcome in medical treatment, no offer to undertake corrective or remedial treatment or action, and no gratuitous act to assist affected persons is admissible to prove negligence by the health care provider in…

(a) Prohibited uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) Evidence offered to prove that a victim engaged in other sexual behavior; or (2) Evidence offered to prove a victim's sexual predisposition. (b…

(a) Permitted uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. (b) Disclosure to the defendan…

Except as otherwise provided by constitution or statute or by this chapter or other rules promulgated by the Supreme Court of this state, no person has a privilege to: (1) Refuse to be a witness; (2) Refuse to disclose any matter; (3) Refuse to produce any object or writing; or (…

(a) Definitions. As used in this section: (1) A "patient" is a person who consults or is examined or interviewed by a physician or psychotherapist; (2) A "physician" is a person authorized in any state or nation to engage in the diagnosis or treatment of any human ill, or reasona…

(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse during their marriage and is not intended for disclosure to any other person. (b) General rule of privilege. An accused in a criminal proceeding has a privilege to prevent h…

(a) Definitions. As used in this section: (1) A "clergyman" is a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him; (2) A communi…

Every person has a privilege to refuse to disclose the tenor of his vote at a public election conducted by secret ballot. This privilege does not apply if the court finds that the vote was cast illegally or determines that the disclosure should be compelled pursuant to the electi…

A person has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by him, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclos…

A public officer cannot be examined as to communications made to him in an official confidence, when the public interests would suffer by the disclosure. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 508); SDCL §

No counselor or school psychologist, certificated in accordance with the certification regulations of the South Dakota Board of Education Standards, or social worker licensed under chapter 36-26 and regularly employed as a counselor, school psychologist, or social worker for a pr…

No counselor, regularly employed on a full-time basis as a counselor for a private or public college or university in the State of South Dakota, may divulge to any other person, or be examined concerning any information or communication given to the counselor in his official capa…

(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or me…

A person upon whom this chapter confers a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This section does not apply if the …

A claim of privilege is not defeated by a disclosure which was: (1) Compelled erroneously; or (2) Made without opportunity to claim the privilege. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 511); SDCL §

(a) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom. (b) Claiming privilege without knowledge of jury. In jury cas…

Notwithstanding the provisions of subdivision 19-19-512(a), when a person stands trial for driving while under the influence of alcohol or drugs, as provided under § 32-23-1 , and that person has refused chemical analysis, as provided in § 32-23-10 , such refusal is admissible in…

No sign language interpreter or relay service operator who has interpreted for or relayed information for a deaf, speech impaired, or hard of hearing person may be compelled to divulge or be examined as part of any proceeding concerning any information or communication given to h…

All verbal or written information relating to the subject matter of a mediation which is transmitted between any party to a dispute and a mediator or any agent, employee, or representative of a party or a mediator is confidential. Any mediation proceeding shall be regarded as set…

The secretary of corrections, the warden of the state correctional facility, correctional facility staff, and Department of Corrections staff may not be examined as to communications made to them concerning an execution of an inmate under chapter 23A-27A . The privilege described…

Every person is competent to be a witness unless otherwise provided in this chapter. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 601); SDCL § 19-14-1 ; SL 2016, ch 239 (Supreme Court Rule 15-35 ), eff. Jan. 1, 2016.

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert …

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 603); SDCL § 19-14-3 ; SL 2016, ch 239 (Supreme Court Rule 1…

The following oath may be used to satisfy the requirements of § 19-19-603 : You do solemnly swear that the evidence you shall give relative to the matter in difference now in hearing between _____, plaintiff, and _____, defendant, shall be the truth, the whole truth, and nothing …

The following affirmation may be used to satisfy the requirements of § 19-19-603 : You do solemnly affirm that the evidence you shall give relative to the matter in difference now in hearing between _____, plaintiff, and _____, defendant, shall be the truth, the whole truth, and …

The following oath, as appropriate to the circumstances, may be used for an interpreter: I, __________, do solemnly swear (or affirm) that I will justly, truly and impartially interpret, to the best of my skill and judgment, and will make a true interpretation to any party or wit…

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 605); SDCL § 19-14-5 ; SL 2016, ch 239 (Supreme Court Rule 15-38 ), eff. Jan. 1, 2016.

(a) At the trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence. (b) During an inquiry into the validity of a verdict or indictment. (1) …

Any party, including the party that called the witness, may attack the witness's credibility. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 607); SDCL § 19-14-8 ; SL 2016, ch 239 (Supreme Court Rule 15-40), eff. Jan. 1, 2016.

(a) Reputation or opinion evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful…

(a) In general. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction: (1) For a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) Must be a…

Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 610); SDCL § 19-14-17 ; SL 2016, ch 239 (Supreme Court Rule 15-43), eff. Jan. 1, 2016.

(a) Control by the court; purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) Make those procedures effective for determining the truth; (2) Avoid wasting time; and (3) Protect witnesses from …

The courts of the State of South Dakota shall not require that witnesses, at time of questioning in open court, release their specific addresses unless it is required by due process or is in the interest of justice. Source: SL 1985, ch 410 (Supreme Court Rule 85-5); SDCL §

(a) Scope. This section gives an adverse party certain options when a witness uses a writing to refresh memory: (1) While testifying; or (2) Before testifying, if the court decides that justice requires the party to have those options. (b) Adverse party's options; deleting unrela…

(a) Showing or disclosing the statement during examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attor…

(a) Calling. The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness. (b) Examining. The court may examine a witness regardless of who calls the witness. (c) Objections. A party may object to the court's calling or exam…

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) Rationally based on the witness's perception; (b) Helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) Not based on scien…

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not: (a) The expert's scientific, technical, or other speciali…

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for…

An opinion is not objectionable just because it embraces an ultimate issue. Source: SL 1993, ch 401 (Supreme Court Rule 93-18); SDCL § 19-15-4 ; SL 2016, ch 239 (Supreme Court Rule 15-52), eff. Jan. 1, 2016.

Unless the court orders otherwise, an expert may state an opinion--and give the reasons for it--without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. Source: SL 2011, ch 238 (Supreme Court Ru…

(a) Appointment process. On a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choo…

(a) Limitation on number called. The provisions of § 19-19-706 shall not preclude any party to either a criminal or civil proceeding from calling expert witnesses, but the court may impose reasonable limitations upon the number of witnesses so called. (b) Compensation. The fee of…

The following definitions apply under this article: (a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. (b) Declarant. "Declarant" means the person who made the statement. (c) Hearsay. "He…

Hearsay is not admissible unless any of the following provide otherwise: (1) A statute; (2) These rules; or (3) Other rules prescribed by the Supreme Court. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 802); SDCL § 19-16-4 ; SL 2016, ch 239 (Supreme Court Rule 15-56), e…

The statements described in this section are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) Present sense impression. A statement describing or explaining an event or condition, made while or immediately after the decl…

A report submitted by a party pursuant to § 19-19-803.2 is not excluded by § 19-19-802 , even though the physician is available as a witness. Source: SL 1984, ch 363 (Supreme Court Rule 84-9); SDCL §