Title 23A, CRIMINAL PROCEDURE

Dying declarations are statements of material facts concerning the cause and circumstances constituting the res gestae of any felony made by the victim voluntarily while not mentally ill and under the fixed and solemn belief that his death is inevitable and near at hand. In all p…

In prosecutions for conspiracy in a case where an overt act is necessary to constitute the offense, a defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, and unless one or more of the acts alleged are proved, but any…

In prosecutions for forging a bill or note of an incorporated company or bank, or for passing or attempting to pass, or having in possession with intent to pass, any such forged bill or note, it is not necessary to prove the incorporation of the bank or company by its charter or …

In prosecutions for bigamy, it is not necessary to prove either of the marriages by the register, certificate, or other record evidence thereof, but they may be proved by such evidence as is admissible to prove a marriage in other cases, and when the second marriage took place ou…

When, in the opinion of a court, it is proper that a jury should view the place where an offense is alleged to have been committed, or where any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which m…

The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this title. Source: Supreme Court Rule 399, 1939; SDC 1939 & Supp 1960, § 34.3631; SDCL, § 23-44-9; SL 1978, ch 178 , § 279.

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. Source: SDC 1939 & Supp 1960, § 34.3635; SDCL, § 23-44-5; SL 1978, ch 178 ,…

A plea of not guilty puts in issue every material fact constituting an offense charged in an indictment, information, or complaint. Source: Supreme Court Rule 390, 1939; SDC 1939 & Supp 1960, § 34.3521; SDCL, § 23-35-23; SL 1978, ch 178 , § 280.

In prosecutions for murder, after the prosecution has proved that a defendant committed the homicide, the burden of proving circumstances of mitigation, or that justify or excuse it, passes to the defendant, unless the proof of the prosecution shows that the crime committed only …

In a trial of all indictments, informations, complaints, and other proceedings before any court or magistrate, against persons charged with the commission of any crime, the person charged shall, at his own request, but not otherwise, be a competent witness. His failure to make su…

When two or more persons are included in the same indictment or information, a court may on the application of the prosecuting attorney, at any time before the defendants have gone into their defense, direct any defendant to be discharged from the indictment or information, in or…

A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circums…

A party who intends to raise an issue concerning the law of a foreign country shall give reasonable written notice. A court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under rule…

Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. A court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more offenses charged in an indictment or information afte…

If a motion for judgment of acquittal is made at the close of all the evidence, a court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without …

If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within ten days after the jury is discharged or within such further time as the court may fix during the ten - day period. If a verd…

Once a motion for judgment of acquittal is made it need not be renewed to be reviewed on appeal. Source: SL 1978, ch 178 , § 300.

23A-24-3 Departure from order of proceedings for good cause. 23A-24-4 Separation or segregation of jurors before submission of case--Oath of officers in charge of jury. 23A-24-5 Admonition to jurors on each adjournment of court. 23A-24-6 Minor's testimony as to sexual offense inv…

In any criminal proceeding, upon motion of any party as provided in § 23A-24-11, the court may enter any order necessary to allow a child witness or a witness having a developmental disability to be accompanied by a certified therapeutic dog during the witness' testimony in the m…

Before the introduction of a certified therapeutic dog into the courtroom, the party desiring to utilize the presence of a certified therapeutic dog shall, outside the presence of the jury, file a motion containing the following information: (1) The credentials of the certified t…

If the court grants a motion pursuant to § 23A-24-11 , the certified handler may accompany the certified therapeutic dog to the witness stand with the child witness or the witness having a developmental disability and remain with the certified therapeutic dog for the duration of …

After a jury has been impaneled and sworn, a trial must proceed in the following order: (1) If the indictment or information is for a felony, the clerk or prosecuting attorney must read it and state the plea of the defendant to the jury. In all other cases this formality may be d…

When the state of the pleadings requires it or in any case for good reasons and in the sound discretion of the court, the order of trial and argument prescribed in § 23A-24-2 may be departed from. Source: Supreme Court Rule 396, 1939; SDC 1939 & Supp 1960, § 34.3627; SDCL, § 23-4…

At any time before the submission of a case to the jury, a court, in its discretion, may allow the jurors to separate or shall have them kept in charge of proper officers who must be sworn to keep the jurors together until the next meeting of the court, to allow no person (includ…

Jurors shall, at each adjournment of court, whether permitted to separate or kept in charge of officers, be admonished by the court as follows: You are reminded that you are not to discuss any aspect of this case among yourselves or with anyone else and that you should not form o…

Any portion of criminal proceedings, with the exception of grand jury proceedings, at which a minor is required to testify concerning rape of a child, sexual contact with a child, child abuse involving sexual abuse, or any other sexual offense involving a child may be closed to a…

The victim of a crime and his parent or guardian may not be excluded from a courtroom due to a request which is made pursuant to § 19-19-615 . However, a judge may remove a victim and his parent or guardian from a trial or hearing or any portion of the trial or hearing for the sa…

If a victim is unable to attend the trial or hearing or any portion of the trial or hearing due to death; disability; hardship; incapacity; physical, mental, or emotional condition or age, the victim, the victim's parent or guardian, or the victim's immediate family may select a …

If a victim fails to exercise any right granted by §§ 19-19-615 , 23A-5-11 , and 23A-24-6 to 23A-24-9 , inclusive, the failure is not grounds for an appeal of a conviction by a defendant or for any court to set aside, reverse, or remand a criminal conviction. Source: SL 1986, ch …

23A-25-3 Statements of law included in charge--Exclusive judges of fact. 23A-25-3.1 Instruction on presumption of innocence required. 23A-25-3.2 Jury instructions--Certified therapeutic dogs. 23A-25-4 Preparation and settlement of instructions--Reading to jury--Comment during arg…

Except as provided in § 23A-25-9 , a jury cannot be discharged after a case is submitted to it until its members have agreed upon their verdict and rendered it in open court, except by the consent of both parties entered on the record, or unless at the expiration of such time as …

In all cases where a jury is discharged or prevented from giving a verdict, by reason of an accident or other cause except where the defendant is discharged during the progress of the trial or after the case is submitted to them, the case may be again tried at the same or another…

While a jury is absent a court may adjourn from time to time to conduct other business, but it is nevertheless deemed open for every purpose connected with a case submitted to a jury until a verdict is rendered or the jury is discharged. Final adjournment of a court discharges th…

If a defense of insanity or mental illness has been presented during a trial, the court shall provide the jury with a special verdict form of "guilty but mentally ill" for each offense. The court shall instruct the jury that a special verdict of "guilty but mentally ill" may be r…

Although jurors have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law that which is laid down as such by the court. Source: SDC 1939 & Supp 1960, § 34.3629; SDCL, § 23-44-21; SL 1978, ch 178 ,…

In charging jurors, a court must state to them all matters of law which it deems necessary for their information in giving their verdict. It must also inform the jurors that they are the exclusive judges of all questions of fact. Source: Supreme Court Rule 404, 1939; SDC 1939 & S…

In each criminal case, the judge shall instruct the jury that the defendant is presumed innocent. Source: SL 1984, ch 179 .

If a certified therapeutic dog has been utilized during a criminal trial, the judge shall present a jury instruction designed to prevent prejudice for or against any party. For purposes of this section, the term, certified therapeutic dog, has the meaning provided in § 23A-24-10 …

All requested instructions shall be prepared and presented by the parties and handled and settled by the court in accordance with the provisions of § 15-6-51 . Instructions shall be settled out of the presence of the jury at the close of the evidence but prior to final argument. …

Before the jurors retire for deliberation, one or more officers shall be sworn to keep the jurors together in some private and convenient place, with such suitable food and drink as the court shall direct. The court may, in its discretion, either sequester the jurors during the a…

Before any officer may enter upon duties pursuant to § 23A-25-5 , the following oath shall be administered to each officer: Do you solemnly swear or affirm that you will take this jury to a private and convenient place, that you will not allow any person, including yourself, to c…

After hearing the charge, the jury shall retire for deliberation. A suitable room, equipped for such purpose, must be provided by each county for the use of a jury upon its retirement for deliberation. While a jury is kept together, either during the progress of a trial or after …

Upon retiring for deliberation, a jury may take all exhibits and all papers which have been received as evidence in the case. Copies may be substituted for original documents when, in the opinion of a court, such documents should not be taken from the person possessing them. A ju…

After jurors have retired for deliberation, if there is a disagreement among them as to any part of the testimony or if they desire to be informed upon a point of law arising in the case, they shall ask the officer having them in charge to convey their written request to the cour…

If, after the retirement of a jury, one of them becomes so sick as to prevent the continuance of his duty, or any other accident or cause occurs to prevent its being kept together for deliberation, it may be discharged, except as provided in § 23A-18-2 . Source: SDC 1939 & Supp 1…

A jury verdict shall be unanimous. It shall be returned by the jury to the judge or magistrate in open court. When the jurors appear, they must be asked by the court or the clerk whether they have agreed upon their verdict. If the foreman answers in the affirmative, they must, on…