Title 23A, CRIMINAL PROCEDURE

The payment of all costs and fees incurred as a result of a transfer and all subsequent proceedings shall be paid by the county where the prosecution was commenced. Source: SL 1978, ch 178 , § 228.

Cases required to be tried by a jury shall be so tried unless the defendant waives a jury trial in writing or orally on the record with the approval of the court and the consent of the prosecuting attorney. Source: SL 1978, ch 178 , § 230.

Juries shall consist of twelve members but at any time before verdict the parties may stipulate in writing or orally on the record with the approval of the court that the jury shall consist of any number less than twelve. Source: SDC 1939 & Supp 1960, § 34.3607; SL 1963, ch 227 ;…

In a case tried without a jury a court shall make a general finding and shall in addition, on request made before submission of the case to the court for decision, find facts specially. Such findings may be oral. If an opinion or memorandum of decision is filed, it will be suffic…

A panel is a list of jurors drawn pursuant to chapter 16-13 to serve at a particular court or for the trial of a particular action. Source: SDC 1939 & Supp 1960, § 34.3610; SDCL, § 23-43-9; SL 1978, ch 178 , § 262.

When a case is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and the court in its discretion may order that an attachment issue against those who are absent; but the court may, in its discretion, wai…

At the opening of court the clerk shall randomly draw the names of the persons summoned as jurors by an electronic process or prepare separate ballots, containing the names of the persons summoned as jurors and deposit the ballots in a suitable container. If an electronic process…

A challenge to a panel is an objection made to all the trial jurors drawn, and may be taken by either party. Source: SDC 1939 & Supp 1960, § 34.3610; SDCL, § 23-43-10; SL 1978, ch 178 , § 263.

A challenge to a panel may only be based on a material departure from the procedure prescribed by law for the drawing and return of the jury, or on the intentional omission of the board of jury selectors or sheriff to summon one or more of the jurors drawn. However, if the panel …

A challenge to a panel must be taken before a juror is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge. Source: SDC 1939 & Supp 1960, § 34.3611; SDCL, § 23-43-12; SL 1978, ch 178 , § 265.

When several defendants are tried together, any individual defendant may challenge the panel, but if more than one defendant challenges the panel, the challenges must be tried together. Source: SDC 1939 & Supp 1960, § 34.3611; SDCL, § 23-43-13; SL 1978, ch 178 , § 266.

An objection to a challenge need not be in writing, but must be entered upon the court minutes and thereupon the court must try the challenge. Source: SDC 1939 & Supp 1960, § 34.3613; SDCL, § 23-43-15; SL 1978, ch 178 , § 267.

A court must first try the sufficiency of a challenge, assuming the facts alleged therein to be true. If the court determines that the facts alleged, if true, constitute sufficient grounds for challenge to the panel, the objecting party may then deny the facts alleged in the chal…

Upon the trial of a challenge to the panel, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge. Source: SDC 1939 & Supp 1960, § 34.…

If a challenge to a panel is allowed, the judge shall order a jury to be drawn and summoned in the regular manner. If it is disallowed, the court must direct the jury to be impaneled. Source: SDC 1939 & Supp 1960, § 34.3614; SDCL, § 23-43-19; SL 1978, ch 178 , § 270.

Jurors drawn and summoned for the trial of civil actions are also the jurors for the trial of criminal actions. Source: SDC 1939 & Supp 1960, § 34.3604; SDCL, § 23-43-1; SL 1978, ch 178 , § 233.

All challenges for cause to an individual juror must be taken, first by the defendant and then by the state, and each party must exhaust all his challenges for cause before the other begins. If new jurors are called to the panel to replace jurors dismissed for cause, the procedur…

Challenges for cause may be taken on any of the following grounds: (1) The prospective juror does not meet one of the qualifications required by § 16-13-10 or is disqualified under that section. (2) The prospective juror is related by consanguinity or affinity within the sixth de…

A challenge to an individual juror may be oral, but must be entered upon the minutes of the court. Source: SDC 1939 & Supp 1960, § 34.3620; SDCL, § 23-43-36; SL 1978, ch 178 , § 240.

An adverse party or counsel may object to a challenge in the manner specified in §§ 23A-19-6 to 23A-19-9 , inclusive, and the same proceedings must be had thereon, except that if an objection is allowed the juror must be excluded. An adverse party may also orally deny facts alleg…

All challenges, whether to a panel or to an individual juror, shall be tried by the court. Source: Supreme Court Rule 394, 1939; SDC 1939 & Supp 1960, § 34.3621; SDCL, § 23-43-37; SL 1978, ch 178 , § 247.

When a challenge to an individual juror is tried, the juror challenged may be examined as a witness to prove or disprove the challenge, and is bound to answer every question pertinent to the inquiry therein. Other witnesses may also be examined on either side, and the rules of ev…

When a challenge to an individual juror is tried, the court must either allow or disallow the challenge and direct an entry accordingly upon the minutes. Source: Supreme Court Rule 394, 1939; SDC 1939 & Supp 1960, § 34.3621; SDCL, § 23-43-39; SL 1978, ch 178 , § 249.

A peremptory challenge is an objection to a juror for which no reason need be given. It can be taken by either party and may be oral. A court must exclude a juror on a peremptory challenge. Source: SDC 1939 & Supp 1960, § 34.3615; SDCL, § 23-43-27; SL 1978, ch 178 , § 250.

When prospective jurors are called for examination, the court shall allow selection by either § 23A-20-3 or 23A-20-4 . Source: SL 1978, ch 178 , § 234.

If an offense charged is a Class A, Class B, Class C, or Class 1 felony, the prosecution and the defense each have twenty peremptory challenges. In all other felony cases, the prosecution and the defense each have ten peremptory challenges. In misdemeanor cases, the prosecution a…

For good cause shown, a court may grant such additional challenges as it, in its discretion, believes necessary and proper. Source: SL 1978, ch 178 , § 252.

If there is more than one defendant a court may, upon good cause shown, allow the parties additional challenges and permit them to be exercised separately or jointly, as it, in its discretion, believes necessary and proper. Source: SL 1978, ch 178 , § 253.

A motion made pursuant to § 23A-20-21 or 23A-20-22 must be made at least one week in advance of the first scheduled trial date or within such other time as may be provided by the rules of the circuit court. Source: SL 1978, ch 178 , § 254.

If prospective jurors are called for examination pursuant to § 23A-20-3 , the manner of exercising a peremptory challenge shall be as found in § 23A-20-25 . If prospective jurors are called for examination pursuant to § 23A-20-4 the manner of exercising a peremptory challenge sha…

Following examination of the jurors called for examination pursuant to § 23A-20-3 , the parties, commencing with the prosecuting attorney, shall alternately exercise their peremptory challenges on the clerk's list. A peremptory challenge may not be waived. Source: CCrimP 1877, § …

When prospective jurors are called for examination pursuant to § 23A-20-4 , peremptory challenges shall be exercised in the same manner prescribed in § 15-14-10 . Source: SL 1978, ch 178 , § 257; Supreme Court Rule 97-40.

The persons remaining after both parties have exercised their peremptory challenges constitute the jurors for the trial. The jurors remaining who were last called under § 23A-20-3 , 23A-20-4 , or 23A-20-8 to make up the full jury box shall be the alternate jurors. Source: SL 1978…

A court may direct that not more than six jurors in addition to the regular jury members be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they were called, shall replace jurors who, prior to the time the jury retires to consider its verd…

In addition to the method of choosing or seating an alternate juror provided by §§ 23A-20-27 and 23A-20-28 , the judge may choose the alternate jurors by lot, or by such other means as the parties agree on the record. Source: Supreme Court Rule 1997-38.

If, before the jury retires, a juror or alternate or a member of his immediate family dies, or if he or a member of his immediate family becomes ill, or upon other good cause shown to the court, the court may order him discharged. Source: SDC 1939 & Supp 1960, § 34.3607; SL 1963,…

When prospective jurors are called for examination, the court shall call to the jury box a number of prospective jurors equal to the number of jurors to be impaneled, the number of peremptory challenges allowed the parties, and number of alternates, if any. Source: SL 1978, ch 17…

The degree of kindred is established by the number of generations, and each generation is called a degree. The series of degrees form the line; the series of degrees between persons who descend from one another is called direct or lineal consanguinity; and the series of degrees b…

Trial juries for criminal actions may be formed in the same manner as trial juries in § 15-14-10 . Source: SDC 1939 & Supp 1960, § 34.3604; SDCL, § 23-43-2; SL 1978, ch 178 , § 236; Supreme Court Rule 97-39.

The defense attorney or the defendant, if appearing pro se, and the prosecuting attorney shall conduct examination of prospective jurors. Prior to the examination the court may conduct a general examination of the prospective jurors. The court may in its discretion allow examinat…

All members of the panel shall swear or affirm that they will answer truthfully all questions concerning their qualifications by taking the following oath. Do you swear or affirm that you will truthfully answer all questions asked of you by the court or counsel concerning your qu…

Any person required to take an oath pursuant to §§ 15-14-11 , 23A-5-7 , 23A-20-7 , and 23A-25-5.1 , who, having conscientious scruples against oath-taking, shall be allowed to make affirmation. Such person may also substitute the words, "under pains and penalties of perjury," for…

At any time that cause for disqualifying a juror appears, the court shall excuse him and call another member of the panel to take his place in the jury box and on the clerk's list of jurors. Challenges for cause may be made out of hearing of the jurors, but shall be made on the r…

A challenge for cause is an objection to a particular juror. It may be taken either by the state or a defendant. Source: SDC 1939 & Supp 1960, § 34.3617; SDCL, § 23-43-29; SL 1978, ch 178 , § 242; SL 1999, ch 282 .

A judge or magistrate may be disqualified in the manner specified in chapter 15-12 . Source: SL 1943, ch 131 ; SDC Supp 1960, § 34.1404-1; SDCL, § 23-27-10; SL 1978, ch 178 , § 276.

If a defendant or prosecuting attorney in a criminal action prosecuted by information or complaint in a magistrate court makes an affidavit that he cannot have an impartial trial by reason of the bias or prejudice of the magistrate, the presiding circuit judge of the circuit in w…