Title 19 — EVIDENCE

The proponent may use a copy to prove the content of an official record--or of a document that was recorded or filed in a public office as authorized by law--if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accor…

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by othe…

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule…

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under § 19-19-1004 or

The writings or tapes resulting from any communication directly or indirectly through TDD or TTY are inadmissible as evidence of those communications in any court of law, legal proceeding, or administrative hearing. This section does not preclude the interception of wire communic…

(a) Scope. This chapter governs proceedings in the courts of this state to the extent and with the exceptions stated in §

This chapter should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. Source: SL 1979, ch 358 (Supreme Court Rul…

(a) Preserving a claim of error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) If the ruling admits evidence, a party, on the record: (A) Timely objects or moves to strike; and (B) States the s…

(a) In general. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (b) Relevance that depends on a fact. When the …

If the court admits evidence that is admissible against a party or for a purpose--but not against another party or for another purpose--the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. Source: SL 1979, ch 358 (Supreme…

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time. Source: SL 1979, ch 358 (Sup…

Except as otherwise provided in this section, this chapter applies to all actions and proceedings in the courts of this state. This chapter other than those sections with respect to privileges does not apply in the following situations: (1) The determination of questions of fact …

This chapter shall be known and may be cited as the South Dakota Rules of Evidence. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 1102); SDCL § 19-9-15 .

(a) Scope. This section governs judicial notice of an adjudicative fact only, not a legislative fact. (b) Kinds of facts that may be judicially noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) Is generally known within the …

In all civil actions and proceedings, unless otherwise provided for by statute or by this chapter, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burde…

(a) Scope. Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this sect…

Evidence is relevant if: (a) It has any tendency to make a fact more or less probable than it would be without the evidence; and (b) The fact is of consequence in determining the action. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 401); SDCL § 19-12-1 ; SL 2016, ch 239…

All relevant evidence is admissible, except as otherwise provided by constitution or statute or by this chapter or other rules promulgated by the Supreme Court of this state. Evidence which is not relevant is not admissible. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule …

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Source: SL…

(a) Character evidence. (1) Prohibited uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a defendant or victim in a criminal case. The f…

(a) By reputation or opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inqui…

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated …

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: (1) Negligence; (2) Culpable conduct; (3) A defect in a product or its design; or (4) A need for a warning or instruction. …

(a) Prohibited uses. Evidence of the following is not admissible--on behalf of any party--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) Furnishing, promising, or offering--or acceptin…

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 409); SDCL § 19-12-11 ; SL 2016, ch 239 (Suprem…

(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…