Title 23A — CRIMINAL PROCEDURE
59 chapters · 948 sections in this title.
SDCL § 23A-10A-16 Time in approved facility credited to term of imprisonment
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Time spent by a defendant in a restoration to competency program or an approved facility pursuant to this chapter, shall be credited to the term of imprisonment, if any, for which the defendant is sentenced in the criminal case which was suspended under §
SDCL § 23A-10A-17 Repealed
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Source: SL 2017, ch 109 , § 17; SL 2023, ch 79 , § 1.
SDCL § 23A-10A-2 Incompetent person cannot be tried, sentenced or punished
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A person cannot be tried, sentenced, or punished for any public offense while he is mentally incompetent to proceed. Source: CCrimP 1877, § 514; CL 1887, § 7564; RCCrimP 1903, § 543; RC 1919, § 4793; SDC 1939 & Supp 1960, § 34.2001; SDCL, § 23-38-1; SL 1978, ch 175 , § 1.
SDCL § 23A-10A-3 Hearing on mental condition--Mental examination and report
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At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the prosecuting attorney may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or sha…
Commitment--Finding required--Duration
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If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or developmental disability, or other conditions set forth in § 23A-10A-1 , rendering the defendant mentally incompetent to the extent that th…
SDCL § 23A-10A-4.1 Recovery of defendant--Certificate--Discharge pending hearing--Notice--Hearing
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If the director of the facility under which the defendant is being treated in accordance with § 23A-10A-4 determines that the defendant has recovered to an extent that the defendant is able to understand the nature and consequences of the proceedings against the defendant and to …
SDCL § 23A-10A-4.2 Findings as to mental competence not prejudicing insanity defense--Inadmissible
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A finding by the court that the defendant is mentally competent to stand trial may not prejudice the defendant in raising the issue of his insanity as a defense to the offense charged, and may not be admissible as evidence in a trial for the offense charged. Source: SL 1985, ch 1…
SDCL § 23A-10A-5 Suspension of proceedings pending determination of defendant's competency
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The trial of the indictment or information or the sentencing, as the case may be, shall be suspended until the question of mental competency is determined by the court. Source: SDC 1939 & Supp 1960, § 34.2002; SDCL, § 23-38-3; SL 1978, ch 175 , § 5; SL 1991, ch 199 , § 10; SL 199…
SDCL § 23A-10A-6 Rules governing competency proceedings
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The proceedings on the question of mental competency shall be conducted according to the rules of criminal procedure. Source: SDC 1939 & Supp 1960, § 34.2003; SDCL, § 23-38-4; SL 1978, ch 175 , § 6.
SDCL § 23A-10A-6.1 Burden and standard of proof
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If the defendant, state, or court asserts that a defendant is mentally incompetent to proceed, the state has the burden of proving the mental competence of the defendant by a preponderance of the evidence. Source: SL 1984, ch 178 ; SL 1988, ch 190 . 23A-10A-7 to 23A-10A-9. Repeal…
SDCL § 23A-11-1 (Rule 13) Joinder for trial of indictments, informations, or defendants
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A court may order two or more indictments or informations, or both, to be tried together if the offenses, and the defendants, if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under …
(Rule 14) Relief from prejudicial joinder of offenses or defendants
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If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide what…
SDCL § 23A-12-1 (Rule 15 (a)) Depositions ordered only as specifically authorized--Order to preserve testimony for trial--Production of other evidence--Witness committed on failure to give bail
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Depositions shall not be ordered for discovery or any other purpose except as specifically provided by statute or rule. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and prese…
SDCL § 23A-12-10 Hearing to record testimony as to additional evidence
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Upon timely receipt of a notice that additional evidence has been newly discovered and for good cause shown, the court may order an additional hearing to record the victim's testimony relevant to the newly discovered evidence on video. Source: SL 1983, ch 184 , § 2; SL 2022, ch 7…
SDCL § 23A-12-2 (Rule 15(b)) Notice to parties of time and place of deposition--Production of defendant in custody--Defendant's right to attend
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The party at whose instance a deposition is to be taken in the state shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the …
SDCL § 23A-12-3 (Rule 15(c)) Governmental payment of defendant's expenses for deposition
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Whenever a deposition is taken at the instance of the prosecuting attorney, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expenses of the taking of the deposition, the court may direct that the expense of travel and subsistence of the …
SDCL § 23A-12-4 (Rule 15(d)) Manner of taking and filing deposition--Disclosure to defense of prior statements of witness
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Subject to such additional conditions as the court may provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in this title; provided that: (1) In no event shall a deposition be taken of a party defendant without his co…
SDCL § 23A-12-5 Sealing and endorsement of deposition--Transmittal to court
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A deposition taken pursuant to this chapter shall be enclosed, sealed, and endorsed with the title of the action and the name of the officer taking it. Such officer shall address and transmit it to the clerk of the court where the action is pending. It shall remain under seal unt…
SDCL § 23A-12-6 (Rule 15(e)) Circumstances permitting use of deposition at trial--Use for impeachment--Parts of deposition used
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At a trial or any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears: (1) That a witness is dead; (2) That the witness is out of the state, unless it appears that the absence of the witness was procured by…
SDCL § 23A-12-7 (Rule 15(f)) Time of objecting to testimony in deposition--Objections to receiving in evidence
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Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition. Objections to receiving in evidence a deposition or part thereof may be made on the basis that the conditions of § 23A-12…
SDCL § 23A-12-8 (Rule 15(g)) Agreement of parties as to taking or use of deposition
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Nothing in this chapter shall preclude the taking of a deposition, for use at trial, orally or upon written questions, or the use of a deposition, by agreement of the parties with the consent of the court. Source: SL 1978, ch 178 , § 138.
SDCL § 23A-12-9 Video recording of young sex crime or human trafficking victim's testimony at preliminary hearing or deposition--Use at trial
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If a victim is less than sixteen years of age at the time of a preliminary hearing or deposition, a prosecuting or defense attorney may apply for an order that the victim's testimony at the preliminary hearing or deposition, in addition to being stenographically recorded, be reco…
SDCL § 23A-13-1 (Rule 16(a)(1)(A)) Prosecution evidence discoverable by defendant--Statements of employees of corporate defendants
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Upon written request of a defendant the prosecuting attorney shall permit the defendant to inspect and copy or photograph: (1) Any relevant written or recorded statements made by the defendant or copies thereof, within the possession, custody, or control of the state, the existen…
SDCL § 23A-13-10 Kinds of prior statements subject to discovery by defendant
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The term "statement" as used in §§ 23A-13-7 to 23A-13-9 , inclusive, in relation to any witness called by the prosecuting attorney, means: (1) A written statement made by such witness and signed or otherwise adopted or approved by him; (2) A stenographic, mechanical, electrical, …
SDCL § 23A-13-11 (Rule 16(a)(3)) Grand jury proceedings not discoverable--Exceptions
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Except as provided in chapter 23A-5 , § 23A-13-1 , and subdivision 23A-13-10(3), this title does not relate to discovery or inspection of the recorded proceedings of a grand jury. Source: SL 1978, ch 178 , § 149.
SDCL § 23A-13-12 (Rule 16(b)(1)(A)) Defendant's documentary and tangible evidence discoverable by prosecution
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If the defendant requests disclosure under § 23A-13-3 or 23A-13-4 , upon compliance with such request by the prosecuting attorney, the defendant, on written request of the prosecuting attorney, shall permit the prosecuting attorney to inspect and copy or photograph books, papers,…
SDCL § 23A-13-13 Results of examinations and scientific tests discoverable by prosecution
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If the defendant requests disclosure under § 23A-13-3 or 23A-13-4 , upon compliance with such request by the prosecuting attorney, the defendant, on written request of the prosecuting attorney, shall permit the prosecuting attorney to inspect and copy or photograph any results or…
SDCL § 23A-13-14 (Rule 16(b)(2)) Defense work product protected from discovery
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Except as to scientific or medical reports, § 23A-13-12 or 23A-13-13 does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the …
SDCL § 23A-13-15 (Rule 16(c)) Notice to adverse party of newly discovered evidence subject to discovery
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If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under §§ 23A-13-1 to 23A-13-14 , inclusive, he shall promptly notify the other party or his attorney or the court of the ex…
SDCL § 23A-13-16 (Rule 16(d)(1)) Restriction of rights of discovery or inspection--Preservation of entire statement for appellate record
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Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form…
SDCL § 23A-13-17 (Rule 16(d)(2)) Remedies on failure of party to comply with discovery requirements--Manner of discovery and inspection
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If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party …
SDCL § 23A-13-18 (Rule 16(e)) Discovery of alibi witnesses
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Discovery of alibi witnesses is governed by chapter 23A-9 . Source: SL 1978, ch 178 , § 176.
SDCL § 23A-13-2 (Rule 16(a)(1)(B)) Copy of prior criminal record furnished to defendant on request
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Upon written request of the defendant, the prosecuting attorney shall furnish to the defendant such copy of his prior criminal record, if any, as is within the possession, custody, or control of the prosecuting attorney, and the existence of which is known, or by the exercise of …
SDCL § 23A-13-3 (Rule 16(a)(1)(C)) Defendant's right to inspect and copy documentary and tangible evidence
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Upon written request of the defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or …
SDCL § 23A-13-4 (Rule 16(a)(1)(D)) Defendant's right to inspect and copy results of examinations or scientific tests
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Upon written request of a defendant, the prosecuting attorney shall permit a defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody,…
SDCL § 23A-13-5 Work product protected from discovery by defendant
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Except as provided in §§ 23A-13-1 , 23A-13-2 , and 23A-13-4 , this chapter does not authorize the discovery or inspection of reports, memoranda, or other internal prosecution documents made by the prosecuting attorney or other employees of law enforcement agencies in connection w…
SDCL § 23A-13-6 Statement by witness not discoverable until testimony in preliminary hearing or trial
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In any criminal prosecution, no statement in the possession of the prosecuting attorney, which was made by a prosecution witness or prospective prosecution witness (other than the defendant), shall be the subject of subpoena, discovery, or inspection until such witness has testif…
SDCL § 23A-13-7 Prior statements of prosecution witnesses subject to discovery after direct examination
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After a witness called by the prosecuting attorney has testified on direct examination, the court shall, on motion of the defendant, order the prosecuting attorney to produce any statement, as defined in § 23A-13-10 , of the witness in the possession of the prosecuting attorney w…
SDCL § 23A-13-8 Excision from statement of prosecution witness of matter not testified to--Delivery to defendant--Preservation of entire statement for appeal--Recess to permit examination by defendant
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If the prosecuting attorney claims that any statement ordered to be produced under §§ 23A-13-6 to 23A-13-10 , inclusive, contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the prosecuting attorney to deliver such sta…
SDCL § 23A-13-9 Testimony stricken when prosecution elects not to produce prior statement--Mistrial
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If the prosecuting attorney elects not to comply with an order of the court under §§ 23A-13-7 and 23A-13-8 to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the…
SDCL § 23A-14-10 (Rule 17(f)(2)) Place attendance required for deposition
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The witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties. Source: SL 1978, ch 178 , § 185.
SDCL § 23A-14-11 John Doe subpoena for examination before magistrate--Compelling obedience
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Whenever a complaint verified positively or upon information and belief by a prosecuting attorney is laid before a committing magistrate that a criminal offense has been committed in this state and asking for an investigation of the same, such magistrate shall issue his subpoena …
SDCL § 23A-14-12 Advice as to rights given to John Doe witness--Immunity provisions applicable
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Any witness examined under § 23A-14-11 shall be informed that he has a right to be advised by counsel and that he may not be required to make any statement which will incriminate him. The provisions of § 23A-14-29 relating to immunity shall apply to proceedings held pursuant to §
SDCL § 23A-14-13 Record of John Doe testimony--Warrant for arrest of offender
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The testimony of a witness attending pursuant to § 23A-14-11 shall be reduced to writing by the committing magistrate or some person under his direction. If the offense complained of appears to have been committed, a warrant for the arrest of the offender shall be issued and furt…
SDCL § 23A-14-14 Interstate summons of witnesses--Definition of terms
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Terms used in §§ 23A-14-14 to 23A-14-24 , inclusive, mean: (1) "Witness," a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution, or proceeding; (2) "State," any state or territory of the United States and the D…
SDCL § 23A-14-15 Hearing on certification from another state as to witness required from this state
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If a judge of a court of record in any state which by its laws has made provisions commanding persons within that state to attend and testify in this state, certifies under the seal of such court that there is a criminal prosecution pending in that court, or that a grand jury inv…
SDCL § 23A-14-16 Summons to appear in another state issued after hearing--Protection accorded witness
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If a hearing is ordered pursuant to § 23A-14-15 and a judge determines that a witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and tha…
SDCL § 23A-14-17 Placement of witness in custody of officer from other state
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If the certificate described in § 23A-14-16 recommends that a witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, the judge to whom the certificate is presented may, in lieu of notification …
SDCL § 23A-14-18 Punishment for contempt by witnesses summoned for appearance in another state--Fees to which entitled
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A witness, who has been summoned pursuant to §§ 23A-14-15 to 23A-14-17 , inclusive, who has been paid or offered, by a properly authorized person, twenty - one cents for each mile by the ordinarily traveled route to and from the court where the prosecution is pending, twenty doll…
SDCL § 23A-14-19 Certificate by judge or magistrate for summons of witness from another state--Recommendation for immediate custody
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A circuit judge or a magistrate judge may issue a certificate under the seal of his court stating that a person in another state is a material witness in a prosecution pending in a court presided over by a circuit court judge or magistrate judge or in a grand jury investigation w…