Title 23A — CRIMINAL PROCEDURE
59 chapters · 948 sections in this title.
SDCL § 23A-5-1 (Rule 6(a)) Circuit court order for grand juries--Number of members--Summons of jurors
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The circuit court shall order one or more grand juries to be summoned only when it appears to the circuit judge's satisfaction that a grand jury is necessary or desirable for the investigation of public offenses or misconduct in office. A grand jury shall consist of not less than…
SDCL § 23A-5-10 Advice sought from court or prosecuting attorney
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The grand jury may at all reasonable times ask the advice of the court or of the prosecuting attorney. Source: SDC 1939 & Supp 1960, § 34.1222; SDCL, § 23-30-7; SL 1972, ch 147 , § 1; SL 1978, ch 178 , § 51.
SDCL § 23A-5-11 (Rule 6(d)) Appearance by prosecuting attorneys before grand jury--Presence of other persons--Counsel advising witnesses
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Prosecuting attorneys may at all times appear before the grand jury for the purpose of giving information or advice or interrogating witnesses relative to any matter cognizable by it. Prosecuting attorneys, the witness under examination and his counsel, interpreters if needed, th…
SDCL § 23A-5-11.1 Recording of testimony of witness before grand jury
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The testimony of any witness appearing before a grand jury in any case shall be recorded. Such testimony may be recorded by means of an electronic recording device. Source: SL 1987, ch 173 ; SL 1998, ch 147 , § 1.
SDCL § 23A-5-12 Testimony before grand jury by subject of investigation--Waiver of immunity
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The subject of a grand jury investigation may, at the discretion of the grand jury or prosecuting attorney, be given the opportunity to testify before the grand jury, provided he waives immunity orally on the record or in writing. Source: SL 1978, ch 178 , § 53.
SDCL § 23A-5-13 Notice of rights to subject appearing before grand jury
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Before testifying or providing other evidence at any proceeding before a grand jury impaneled before a circuit court, the subject of the grand jury investigation shall be given adequate and reasonable notice of: (1) His right to counsel as provided in § 23A-5-11 ; (2) His privile…
SDCL § 23A-5-14 Removal and replacement of attorney for witness appearing before grand jury
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The court shall have the power to remove a witness' attorney and order the witness to obtain new counsel, when it finds that the attorney has violated § 23A-5-11 or that such removal and replacement is necessary to ensure that the activities of a grand jury are not unduly delayed…
SDCL § 23A-5-15 Evidence heard by grand jury--Order for production of evidence
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The rules of evidence shall apply to proceedings before the grand jury. A grand jury is not bound to hear evidence for a defendant, but it is its duty to weigh all the evidence submitted to it. When it has reason to believe that there is other evidence, it may order such evidence…
SDCL § 23A-5-16 (Rule 6(e)) Restrictions on disclosure of grand jury proceedings--Immunity of jurors--Sealing of indictments
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Disclosure of matters occurring before a grand jury, other than its deliberations and the vote of any juror, may be made to prosecuting attorneys for use in the performance of their duties. Otherwise a juror, attorney, witness, interpreter, stenographer, operator of a recording d…
SDCL § 23A-5-17 Disclosure by prosecuting attorney of evidence received by grand jury
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The prosecuting attorney may disclose evidence received before the grand jury or heard before the grand jury in the performance of his official duties. Source: SL 1978, ch 178 , § 54A.
SDCL § 23A-5-18 (Rule 6(f)) Quorum of grand jury--Votes required for indictment--Witnesses named on indictment--Dismissal of charge on failure to indict
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A quorum of six grand jurors must be present before any evidence or testimony may be received or any other business conducted. An indictment may be found only if there is probable cause to believe that an offense has been committed and that the defendant committed it. An indictme…
SDCL § 23A-5-19 Report filed when indictment not issued
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The grand jury, with the permission of the prosecuting attorney, may file a report as to any case in which an investigation has taken place and an indictment has not been issued. The court may excise any portion of the report that is filed in the interests of justice. Source: SL …
SDCL § 23A-5-2 New grand jury ordered after discharge of original jury--Other causes
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If a grand jury is discharged by an allowance of a challenge to the panel, or if an offense is committed during the sitting of the court after the discharge of a grand jury, or if after such discharge a new indictment becomes requisite by reason of an arrest of judgment or by the…
SDCL § 23A-5-20 (Rule 6(g)) Term of service of grand jury--Excuse and replacement of jurors
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A grand jury shall serve until discharged by the court which convened it, but no grand jury may serve more than eighteen months. The tenure and powers of a grand jury are not affected by the beginning or expiration of a term of court. At any time for cause shown the court may exc…
SDCL § 23A-5-3 (Rule 6(b)(1)) Grounds for challenge to array or individual jurors--Trial of challenge
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Either the prosecuting attorney or a defendant may challenge the array of grand jurors on the ground that a grand jury was not selected, drawn or summoned in accordance with law and may challenge an individual grand juror on the ground that the juror is not legally qualified. Cha…
SDCL § 23A-5-4 Summons of new jurors after challenge--Oath of jurors chosen for particular case
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Whenever challenges to individual grand jurors are allowed, the court shall make an order to the sheriff, deputy sheriff, or coroner, to summon without delay, from the residents of the county, a sufficient number of persons to complete or to form a grand jury. A grand jury formed…
SDCL § 23A-5-5 (Rule 6(b)(2)) Dismissal of indictment because grand jurors not qualified
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A motion to dismiss an indictment may be based on objections to the array or on the lack of legal qualifications of an individual juror, if not previously determined upon challenge. An indictment shall not be dismissed on the ground that one or more members of the grand jury were…
SDCL § 23A-5-6 (Rule 6(c)) Foreman and deputy foreman of grand jury--Powers and duties--Clerk of grand jury--Record of proceedings
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The court shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall sign all indictments. During the absence of the foreman, the deputy foreman shall act as foreman and shall have th…
SDCL § 23A-5-7 Oath of grand jurors
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The following oath shall be administered to the foreperson of the grand jury: Do you, as foreperson of the grand jury, swear or affirm that you will diligently inquire into and make indictments of all public offenses against the state about which you have or can obtain evidence a…
SDCL § 23A-5-8 Charge to grand jury by court--Commencement of inquiries
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After the grand jury is impaneled and sworn, it must be charged by the court. In doing so, the court shall give the members such information as it may deem proper as to the nature of their duties, and as to any charges for public offenses returned to the court or likely to come b…
SDCL § 23A-5-9 General powers of grand jury--Access to prisons and records
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The grand jury has power, and it is its duty, to inquire into all public offenses committed or triable in its county, and to present them to the circuit court by indictment. A grand jury is entitled to free access at all reasonable times to public prisons, and to the examination,…