Title 23A — CRIMINAL PROCEDURE
59 chapters · 948 sections in this title.
Arrested person taken before magistrate--Complaint filed on arrest without warrant
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A law enforcement officer shall, without unnecessary delay, take the arrested person before the nearest available committing magistrate. Any person, other than a law enforcement officer, making an arrest shall, without unnecessary delay, take the arrested person before the neares…
SDCL § 23A-4-3 (Rule 5(c)) Advice to defendant at initial appearance on charge requiring preliminary hearing--Charges requiring preliminary hearing--Waiver or scheduling of hearing--Extension of time
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If a charge against a defendant requires a preliminary hearing, the defendant may not be called on to plead. The committing magistrate shall inform the defendant of the complaint against the defendant and of any affidavit filed therewith, of the defendant's right to retain counse…
SDCL § 23A-4-4 Advice to defendant and admission to bail when initial appearance before another magistrate--Initial appearance without warrant--Transmittal of files to appropriate court
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Subject to §§ 23A-17-1 to 23A-17-4 , inclusive, if a defendant is taken before a committing magistrate who did not issue the warrant, or in case no warrant has been issued, the committing magistrate shall inform him of the matters set out in § 23A-4-3 and admit the defendant to b…
SDCL § 23A-4-5 Transfer to magistrate judge or circuit court for preliminary hearing
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Either the defendant or the prosecuting attorney may, at any time prior to the commencement of a preliminary hearing before a lay magistrate, make a motion that the proceedings be transferred to a magistrate judge or to the circuit court. Upon such a motion the lay magistrate sha…
SDCL § 23A-4-6 (Rule 5.1(a)) Holding for trial when probable cause shown on preliminary hearing--Evidence received
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If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the committing magistrate shall forthwith hold him to answer in the trial court of the county having jurisdiction of the offense. The de…
SDCL § 23A-4-7 (Rule 5.1(b)) Discharge and dismissal in absence of probable cause--Subsequent prosecution on same offense
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If from the evidence it appears that there is not probable cause to believe that an offense has been committed or that the defendant committed it, the committing magistrate shall dismiss the complaint and discharge the defendant. The discharge of a defendant does not preclude a p…
SDCL § 23A-4-8 (Rule 5.1(c)) Record of proceedings on preliminary hearing--Cost--Transmittal of papers to trial court--Limitation of access to record
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A verbatim record of the proceeding in each preliminary hearing shall be made under the direction of the committing magistrate upon request of either the prosecuting attorney or the defendant. A copy of the transcript of the record of the proceeding shall be furnished to the defe…
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,…
It shall describe the offense charged in the indictment, and it shall command that the defendant be arrested and brought before the court
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The amount of bail, if any, shall be fixed by the court and endorsed on the warrant. Source: SL 1978, ch 178 , § 86; SL 1999, ch 121 , § 3.
SDCL § 23A-6-1 Indictment or information required for prosecution of offense--Exceptions
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Every public offense must be prosecuted by an indictment or by an information signed by a prosecuting attorney except: (1) A proceeding for the removal of a civil officer of this state; (2) An offense arising under the laws, rules, and regulations relating to the National Guard; …
SDCL § 23A-6-10 Endorsement of witnesses on information--Calling other witnesses
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The prosecuting attorney shall endorse upon each information the names of the witnesses known to him at the time of its filing. Any further endorsement of names upon the information shall be done only with permission of the court. This section shall not preclude calling any witne…
SDCL § 23A-6-11 Allegation as to money or securities stolen
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In an indictment or information for the theft of money, bank notes, certificates of stock, or securities, or for a conspiracy to commit the theft of any such property, it is sufficient to allege the theft, or the conspiracy to commit theft, to be of money, bank notes, certificate…
SDCL § 23A-6-12 Description of money taken by robbery or theft
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In a prosecution for robbery or theft of money, it is sufficient to allege generally in the indictment or information a robbery or theft of money, and it is sufficient to maintain the charge in the indictment or information that money was obtained by robbery or theft without rega…
SDCL § 23A-6-13 Allegations in indictment or information for perjury
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In an indictment or information for perjury or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in which the offense was committed, the court or person before whom the oath alleged to be false was taken, and that the court or person…
SDCL § 23A-6-14 (Rule 7(c)(3)) Sufficiency of indictment or information despite nonprejudicial defect
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No indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of a defect or imperfection in its form, which does not prejudice the substantial rights of the defendant. Source: SDC 1939 & Supp 1960, § 34.3002; SDCL, …
SDCL § 23A-6-15 Erroneous allegation as to victim of offense
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When an offense involves the commission of, or an attempt to commit, a theft or other private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured, or the ownership of …
SDCL § 23A-6-16 Unavailability of instrument on indictment or information for forgery
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When an instrument, which is the subject of an indictment or information for forgery, has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment or information and established during the t…
SDCL § 23A-6-17 Statutory words not required in indictment or information--Interpretation of words and phrases
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Words used in a statute to describe a public offense need not be strictly recited in an indictment or information, but other words conveying the same meaning may be used. Words used in an indictment or information shall be interpreted according to their usual meaning in common la…
SDCL § 23A-6-18 (Rule 7(d)) Surplusage stricken on motion
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A circuit court upon motion may strike surplusage from an indictment or information. Source: SL 1978, ch 178 , § 77.
SDCL § 23A-6-19 (Rule 7(e)) Amendment of information before trial--Allegation of new offense--Amendment during trial
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If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change all…
SDCL § 23A-6-22 Suppression of names and details in rape, incest, or sexual contact prosecution
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Upon the request of the victim in a prosecution for rape, incest, or sexual contact, the court shall order that the names of the victim or the accused or the details of the alleged offense be suppressed until: (1) The accused is arraigned; (2) The charge is dismissed; or (3) The …
SDCL § 23A-6-23 (Rule 8(a)) Joinder of related offenses in same indictment or information
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Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more act…
SDCL § 23A-6-24 (Rule 8(b)) Joinder of two or more defendants in same indictment or information
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Two or more defendants may be charged in the same indictment or information, if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more co…
SDCL § 23A-6-25 Election between offenses or counts not required--Separate statements in verdict
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The prosecuting attorney shall not be required to elect between different offenses or counts set forth in an indictment or information, but a defendant may be convicted of any number of offenses charged, and each offense upon which a defendant is convicted must be stated in the v…
SDCL § 23A-6-26 (Rule 9(a)) Warrant or summons on indictment--Delivery for execution--Warrant on defendant's failure to respond to summons
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Upon request of a prosecuting attorney, a circuit court judge, in the case of a felony, and a magistrate judge, in the case of a misdemeanor or at the direction of the presiding judge of the circuit in the case of a felony, may issue a warrant for each defendant named in an indic…
SDCL § 23A-6-27 (Rule 9(b)(1)) Form of warrant--Contents--Endorsement as to bail
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A warrant shall be in the form prescribed by §
SDCL § 23A-6-28 (Rule 9(b)(2)) Form and contents of summons--Time of required appearance--Signature
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A summons shall be in the same form as a warrant except that it shall summon the defendant to appear before a circuit court judge or magistrate judge, as the case may be, at a stated time and place. The time stated may not be more than ten days from the date the indictment was pr…
SDCL § 23A-6-29 (Rule 9(c)(1)) Execution or service of warrant or summons--Arrested person brought before court
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A warrant shall be executed or a summons served as provided in §§ 23A-2-7 to 23A-2-11 , inclusive. The officer executing a warrant shall bring the arrested person promptly before the court for the purpose of admission to bail. Source: SDC 1939 & Supp 1960, § 34.1231; SDCL, § 23-3…
SDCL § 23A-6-29.1 Powers granted magistrate judge
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If directed to do so by the presiding judge of the circuit, a magistrate judge may set bail and take not guilty pleas in felony cases. Source: SL 1999, ch 121 , § 1.
SDCL § 23A-6-3 Preliminary hearing required for filing felony information--Exceptions
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An information may be filed without a preliminary hearing against a fugitive from justice. No other information may be filed against any person for any felony until that person has had a preliminary hearing, unless that person waived his or her right to a preliminary hearing. All…