Start with South Dakota Codified Laws ch. 19-19. In South Dakota, South Dakota evidence practice is organized under the South Dakota Codified Laws ch. 19-19. Relevance starts at SDCL §§ 19-19-3, 19-19-5; hearsay starts at SDCL §§ 19-19-19, 19-19-20. That is the question this guide answers for evidence law. Authenticity is a separate fight under SDCL §§ 19-19-23, 19-19-24. Depositions at trial: SDCL § 15-6-32 governs civil deposition use at trial. Criminal discovery follows SDCL ch. 23A; deposition testimony at trial requires SDCL § 19-19-22(2)(a) with unavailability under § 19-19-22(1).
General standards of admissibility
South Dakota starts every evidence dispute with relevance and unfair prejudice. Under SDCL §§ 19-19-3, 19-19-5, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
South Dakota's 19-19- numbering differs from FRE labels; crosswalk tables in the codified laws map sections to federal rule equivalents.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in South Dakota is governed by SDCL §§ 19-19-6, 19-19-7. The default rule is familiar: 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. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
South Dakota character-evidence opinions
SUPREME PORK, INC., Plaintiff and Appellee, v. MASTER BLASTER, INC., Defendant and Appellant
…3.] Master Blaster mischaracterizes the code violations as "character evidence." Supreme Pork was not attempting to prove PP & H's "character" or "reputation" with this evidence. Therefore, SDCL 19-12-4 (Rule 404(a))[12] is inapplicable. The trial court admitted the evidence under SDCL 19-12-5 (Rule 404(b)). The non-causal code violations were relevant, admissible, circumstanti…
SUPREME PORK, INC., Plaintiff and Appellee, v. MASTER BLASTER, INC., Defendant and Appellant is worth reading on South Dakota character evidence because the court put the point in its own words: "Master Blaster mischaracterizes the code violations as 'character evidence.' Supreme Pork was not attempting to prove PP & H's 'character' or 'reputation' with this evidence. Therefore, SDCL 19-12-4 (Rule 404(a))[12] is inapplicable." Use that passage as the starting point, then read the facts that precede it.
STATE of South Dakota, Plaintiff and Appellee, v. James Albert COTTIER, Defendant and Appellant
…DCL 19-16-35. 4 He also offered Red Star’s prison record as character evidence under SDCL 19-12-4(2) 5 (Rule 404(a)), and as other acts evidence, under SDCL 19-12-5 6 (Rule 404(b)). This evidence *131 was offered to demonstrate Red Star’s propensity for violence, to corroborate Cottier’s description of Red Star’s tenacious attack and to justify Cottier’s fear of Red Star. The c…
Practitioners open STATE of South Dakota, Plaintiff and Appellee, v. James Albert COTTIER, Defendant and Appellant when South Dakota character evidence turns on the distinction in this sentence: "DCL 19-16-35. 4 He also offered Red Star’s prison record as character evidence under SDCL 19-12-4(2) 5 (Rule 404(a)), and as other acts evidence, under SDCL 19-12-5 6 (Rule 404(b))." Do not lift it out of the facts the court was deciding.
STATE of South Dakota, Plaintiff and Appellant, v. Steven Ellis HOUGHTON, Defendant and Respondent
…to Federal Rule of Evidence 404 which quotes as follows: “ ‘Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters des…
South Dakota opinions such as STATE of South Dakota, Plaintiff and Appellant, v. Steven Ellis HOUGHTON, Defendant and Respondent are cited where character evidence is disputed. The court stated: "Federal Rule of Evidence 404 which quotes as follows: “ ‘Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion." That is the language to brief; the rest of the decision supplies the procedural posture.
Daniel G. TIPTON, Conservator of the Estate of Crystal R. Tipton, — Erickson, J., concurring in part and dissenting
…ce of what it terms “common knowledge” of the wolf species’ propensity to be dangerous. But before doing so, we should examine this generalized character trait evidence and its source. As we have struggled with this case, some of the information we reviewed discussed the history of the wolf. This issue concerning the wolfs propensity for aggression is hotly debated. Talk to a w…
Daniel G. TIPTON, Conservator of the Estate of Crystal R. Tipton, — Erickson, J., concurring in part and dissenting is worth reading on South Dakota character evidence because the court put the point in its own words: "But before doing so, we should examine this generalized character trait evidence and its source. As we have struggled with this case, some of the information we reviewed discussed the history of the wolf. This issue concerning the wolfs propensity for aggression is hotly debated." Use that passage as the starting point, then read the facts that precede it.
STATE of South Dakota, Plaintiff and Appellee, v. Myron J. ONDRICEK, Defendant and Appellant — Sabers, J., dissenting
….2d at 448. Therefore, any prior bad act evidence is merely character evidence and inadmissible in these circumstances. Id. The Champagne majority incorrectly allowed prior bad act evidence to be introduced for a specific intent crime. 422 N.W.2d at 843. [T]he [Champagne ] court’s dismissal of the requirement that intent be seriously in dispute — which it is not if the defendan…
On character evidence, STATE of South Dakota, Plaintiff and Appellee, v. Myron J. ONDRICEK, Defendant and Appellant — Sabers, J., dissenting speaks to the South Dakota dispute in this passage: "Therefore, any prior bad act evidence is merely character evidence and inadmissible in these circumstances. Id. The Champagne majority incorrectly allowed prior bad act evidence to be introduced for a specific intent crime. 422 N.W.2d at 843." The surrounding opinion shows how the court applied that language to the record.
How the South Dakota rule applies
Apply the South Dakota authorities in order. The facts are simplified so the statute and the standard are visible.
A lawyer in South Dakota wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under SDCL §§ 19-19-3, 19-19-5.
- If the email is the opposing party's, test SDCL § 19-19-19(4)(b) before the hearsay definition in SDCL §§ 19-19-19, 19-19-20.
- For the medical record, lay the business-records foundation in SDCL § 19-19-21(6) and the treatment purpose in SDCL § 19-19-21(4).
- For the deathbed statement, meet SDCL § 19-19-22(2)(b), then authenticate every exhibit under SDCL §§ 19-19-23, 19-19-24.
South Dakota keeps hearsay, character, and authenticity on different rules inside the South Dakota Codified Laws ch. 19-19. Winning one does not win the others.
Hearsay: start with the definition
Most hearsay objections in South Dakota are won or lost on the definition, not on an exception. Under SDCL §§ 19-19-19, 19-19-20, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
South Dakota hearsay opinions
STATE of South Dakota, Plaintiff and Appellee, v. Kenneth M. GAGE, Defendant and Appellant
…to be on the face of this affidavit-report, it was at best hearsay on hearsay. The State was not even able to introduce the testimony in support of its case-in-chief. We are cognizant of the fact that “[t]he Aguilar-Spinelli requirements have been held not to apply to information supplied by identified bystanders or victim-eyewitnesses to a crime[,]” State v. Haron, 88 S.D. 39…
STATE of South Dakota, Plaintiff and Appellee, v. Kenneth M. GAGE, Defendant and Appellant is worth reading on South Dakota hearsay because the court put the point in its own words: "The State was not even able to introduce the testimony in support of its case-in-chief. We are cognizant of the fact that “[t]he Aguilar-Spinelli requirements have been held not to apply to information supplied by identified bystanders or victim-eyewitnesses to a crime[,]” State v." Use that passage as the starting point, then read the facts that precede it.
STATE of South Dakota, Plaintiff and Appellee, v. John Francis MORIARTY, Defendant and Appellant
…hether his confrontation clause rights were violated by the hearsay testimony of the babysitter, Leah De-Wald. 2. Whether his confrontation clause rights were violated by the hearsay testimony of Candice Cummings. 3. Whether the testimony of Candice Cummings invaded the province of the jury. 4. Whether the prosecutor engaged in prosecutorial misconduct when questioning Dr. Will…
South Dakota opinions such as STATE of South Dakota, Plaintiff and Appellee, v. John Francis MORIARTY, Defendant and Appellant are cited where hearsay is disputed. The court stated: "Leah De-Wald. 2. Whether his confrontation clause rights were violated by the hearsay testimony of Candice Cummings. 3. Whether the testimony of Candice Cummings invaded the province of the jury. 4. Whether the prosecutor engaged in prosecutorial misconduct when questioning Dr." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of South Dakota, Plaintiff and Appellee, v. Charles DIVAN, Defendant and Appellant
…so take care of Ward’s cattle. Divan did not object to this hearsay testimony. Cresalia also testified that Divan made a voluntary statement after his arrest that he had an agreement with Ward and is responsible for Ward’s lease. Sheriff Jim Daggett (Daggett) also testified that Divan’s father mentioned that Divan was running cattle together with Ward on the Ward lease. Divan m…
STATE of South Dakota, Plaintiff and Appellee, v. Charles DIVAN, Defendant and Appellant is worth reading on South Dakota hearsay because the court put the point in its own words: "Ward’s cattle. Divan did not object to this hearsay testimony. Cresalia also testified that Divan made a voluntary statement after his arrest that he had an agreement with Ward and is responsible for Ward’s lease." Use that passage as the starting point, then read the facts that precede it.
STATE of South Dakota, Plaintiff and Appellee, v. Jason C. ORELUP, Defendant and Appellant
…d me in the stomach.” In Orelup I, the trial court admitted hearsay testimony by Cain and Larson based on the excited utterance exception to the hearsay rule. However, the trial record in Orel-up I did not reflect a finding by the trial court that the hearsay testimony related to a startling event and was made under the stress of excitement, two threshold requirements for admis…
STATE of South Dakota, Plaintiff and Appellee, v. Jason C. ORELUP, Defendant and Appellant is worth reading on South Dakota hearsay because the court put the point in its own words: "In Orelup I, the trial court admitted hearsay testimony by Cain and Larson based on the excited utterance exception to the hearsay rule." Use that passage as the starting point, then read the facts that precede it.
In the Matter of R.S.S., Delinquent Child.
In the Matter of R.S.S., Delinquent Child., 474 N.W.2d 743 (1991)
…),1 a twelve-year old girl, challenges the admissibility of hearsay and prior bad act evidence and sufficiency of the evidence to sustain her adjudication as a delinquent. Facts Mother and father, parents of four-year daughter S.H., planned to attend a dance Saturday night, August 5, 1989, but found none of their regular babysitters available. On the recommendation of mother's…
On hearsay, In the Matter of R.S.S., Delinquent Child. speaks to the South Dakota dispute in this passage: "Facts Mother and father, parents of four-year daughter S.H., planned to attend a dance Saturday night, August 5, 1989, but found none of their regular babysitters available." The surrounding opinion shows how the court applied that language to the record.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. South Dakota treats them under SDCL § 19-19-19(4)(b). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
South Dakota party-admission opinions
STATE of South Dakota, Plaintiff and Appellee, v. Kenneth C. HUBER, Defendant and Appellant
…sheriff who accidentally discharged a handgun; the court’s admission of Pam’s out-of-court statements; and, the court’s admission of other acts evidence. We reverse and remand for new trial on the circuit court’s refusal to allow Huber’s expert to testify. We affirm the circuit court on all other issues. Facts and Procedural History [¶ 2.] We restate the facts in a light most…
South Dakota opinions such as STATE of South Dakota, Plaintiff and Appellee, v. Kenneth C. HUBER, Defendant and Appellant are cited where party admissions is disputed. The court stated: "Pam’s out-of-court statements; and, the court’s admission of other acts evidence. We reverse and remand for new trial on the circuit court’s refusal to allow Huber’s expert to testify. We affirm the circuit court on all other issues. Facts and Procedural History [¶ 2." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE, Respondent v. BURTTS, Appellant
STATE, Respondent v. BURTTS, Appellant, 81 S.D. 150 (1964)
…rors are assigned *153involving largely rulings on motions, admission and exclusion of evidence, and instructions to the jury. Such as merit discussion will be referred to after we state the material facts. During the night of October 11, 1963, defendant and his wife were at a tavern in Pierre where he played with a small dance band. After completing his job they went to anothe…
Practitioners open STATE, Respondent v. BURTTS, Appellant when South Dakota party admissions turns on the distinction in this sentence: "Such as merit discussion will be referred to after we state the material facts. During the night of October 11, 1963, defendant and his wife were at a tavern in Pierre where he played with a small dance band." Do not lift it out of the facts the court was deciding.
STATE of South Dakota, Plaintiff and Appellee, v. Timothy J. DEVALL, Defendant and Appellant
…han the fact of complaint. The question then is whether the admission of these additional details from Feuerstein is still within this rape complaint exception. Feuerstein testified T.L. complained that Devall “raped” her. This testimony encompasses the heart of the rape complaint exception — i.e. the complaint and the identity of her attacker. All additional specific de*376tai…
South Dakota opinions such as STATE of South Dakota, Plaintiff and Appellee, v. Timothy J. DEVALL, Defendant and Appellant are cited where party admissions is disputed. The court stated: "The question then is whether the admission of these additional details from Feuerstein is still within this rape complaint exception. Feuerstein testified T.L. complained that Devall “raped” her. This testimony encompasses the heart of the rape complaint exception — i.e." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of South Dakota, Plaintiff and Appellee, v. Farrell DILLON, Defendant and Appellant
…dant’s right to due process and a fair trial when it denied admission of letters and cards written by Defendant to his daughter that corroborated his testimony. 5. Whether the trial court abused its discretion in refusing to grant a new trial, when it was alleged jurors brought extrinsic information into the jury room that Defendant had been in prison for the past ten years and…
Practitioners open STATE of South Dakota, Plaintiff and Appellee, v. Farrell DILLON, Defendant and Appellant when South Dakota party admissions turns on the distinction in this sentence: "Defendant to his daughter that corroborated his testimony. 5." Do not lift it out of the facts the court was deciding.
STATE of South Dakota, Plaintiff and Appellee, v. Ron CARLSON, Defendant and Appellant
…'s statements during the trial. Defense counsel objected to admission on the grounds of hearsay. After argument of counsel, the trial court stated: It does occur to me in view of the situation that has been outlined in the opening statements that there is an express or implied charge of improper influence or motive and recent fabrication. I am going to admit this evidence under…
STATE of South Dakota, Plaintiff and Appellee, v. Ron CARLSON, Defendant and Appellant is worth reading on South Dakota party admissions because the court put the point in its own words: "Defense counsel objected to admission on the grounds of hearsay." Use that passage as the starting point, then read the facts that precede it.
Kevin RONAN, M.D. and Patricia Ronan, Plaintiffs and Appellants, v. SANFORD HEALTH D/B/A Sanford Hospital, Sanford
…health care provider. Nothing in this section prevents the admission, for the purpose of impeachment, of any statement constituting an admission against interest by the health care provider making such statement. 3 This statute was adopted in 2005. This is the first opportunity this Court has had to examine this statute. [112.] The cireuit court took the issue under advisement…
South Dakota opinions such as Kevin RONAN, M.D. and Patricia Ronan, Plaintiffs and Appellants, v. SANFORD HEALTH D/B/A Sanford Hospital, Sanford are cited where party admissions is disputed. The court stated: "Nothing in this section prevents the admission, for the purpose of impeachment, of any statement constituting an admission against interest by the health care provider making such statement. 3 This statute was adopted in 2005." That is the language to brief; the rest of the decision supplies the procedural posture.
Business records
The business-records exception under SDCL § 19-19-21(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
South Dakota business-records opinions
OLSON, Respondent v. ALDREN, Appellant — Hanson, J., dissenting
OLSON, Respondent v. ALDREN, Appellant — Hanson, J., dissenting, 84 S.D. 292 (1969)
…pinion such report was clearly admissible under our Uniform Business Records as Evidence Act, SDCL 19-7-11. The Brucellosis and Contagious Abortion Program in South Dakota is governed by the provisions of SDCL Ch. 40-7. It is a contagious animal disease eradication program carried on in cooperation with the United States Department of Agriculture. *302See SDCL 40-7-6 and 7 U.S.…
Practitioners open OLSON, Respondent v. ALDREN, Appellant — Hanson, J., dissenting when South Dakota business records turns on the distinction in this sentence: "Uniform Business Records as Evidence Act, SDCL 19-7-11. The Brucellosis and Contagious Abortion Program in South Dakota is governed by the provisions of SDCL Ch. 40-7." Do not lift it out of the facts the court was deciding.
BENTZ, Respondent v. CIMARRON INSURANCE CO., Inc., Appellant
BENTZ, Respondent v. CIMARRON INSURANCE CO., Inc., Appellant, 79 S.D. 510 (1962)
…same was properly admissible in evidence under our Uniform Business Records as Evidence Law, SDC 1960 Supp. 36.1001, which provides as follows: “The term ‘business’, shall include every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not. “A record of an act, condition, or event, shall in so far as relevant, be…
South Dakota opinions such as BENTZ, Respondent v. CIMARRON INSURANCE CO., Inc., Appellant are cited where business records is disputed. The court stated: "Uniform Business Records as Evidence Law, SDC 1960 Supp. 36.1001, which provides as follows: “The term ‘business’, shall include every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of South Dakota, Plaintiff and Appellee, v. Corey Edward MILK — Miller, J., concurring in part and dissenting
…e in a transfer hearing, and therefore statutes such as the business records exception of SDCL 19-16-10 do not apply, the transfer statute requires that, before reports and other materials are considered by the court, the person *322who prepared the material must be available for questioning and cross-examination. If the rules of evidence were applicable, there would be no need…
Practitioners open STATE of South Dakota, Plaintiff and Appellee, v. Corey Edward MILK — Miller, J., concurring in part and dissenting when South Dakota business records turns on the distinction in this sentence: "SDCL 19-16-10 do not apply, the transfer statute requires that, before reports and other materials are considered by the court, the person *322who prepared the material must be available for questioning and cross-examination." Do not lift it out of the facts the court was deciding.
Jimmy Dean JIBBEN, Petitioner and Appellant, v. STATE of South Dakota, Appellee
…ve been sufficient to establish its admissibility under the business records exception to the hearsay rule, SDCL 19-16-10. 2 Thus, an objection on the basis of hearsay would have been properly overruled. Although petitioner has a technical evidentiary point, his defense was not prejudiced by counsel’s failure to object to such extent that it constitutes reversible error. State…
Jimmy Dean JIBBEN, Petitioner and Appellant, v. STATE of South Dakota, Appellee is worth reading on South Dakota business records because the court put the point in its own words: "SDCL 19-16-10. 2 Thus, an objection on the basis of hearsay would have been properly overruled. Although petitioner has a technical evidentiary point, his defense was not prejudiced by counsel’s failure to object to such extent that it constitutes reversible error." Use that passage as the starting point, then read the facts that precede it.
Noelle DUBRAY, Appellee, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, Appellant
…conduct of their affairs,” or (2) were admissible under the business records (SDCL 19-16-10, Rule 803(6)) and public records (SDCL 19-16- *661 12, Rule 803(8)) exceptions to the hearsay rule. [¶ 8.] Evidentiary rulings are reviewed under ah abuse of discretion standard. State v. Milk, 519 N.W.2d 313, 315 (S.D.1994) (citing Zens v. Chicago, Milwaukee, St. Paul and Pac. R.R. Co.,…
South Dakota opinions such as Noelle DUBRAY, Appellee, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, Appellant are cited where business records is disputed. The court stated: "SDCL 19-16-10, Rule 803(6)) and public records (SDCL 19-16- *661 12, Rule 803(8)) exceptions to the hearsay rule. [¶ 8.] Evidentiary rulings are reviewed under ah abuse of discretion standard. State v. Milk, 519 N.W.2d 313, 315 (S.D.1994) (citing Zens v. Chicago, Milwaukee, St." That is the language to brief; the rest of the decision supplies the procedural posture.
Janet TSCHETTER, Appellant, v. DOLAND BOARD OF EDUCATION of DOLAND SCHOOL DISTRICT # 56-2, Appellee
…testify. The board argues that the exhibits fit within the business records exception to the hearsay rule found at SDCL 19-16-10. 2 Appellant argues that irrespective of this State’s adoption of SDCL 19-16-10, based on Federal Rules of Evidence 803(6), the board was still obligated to call Heffner to lay a proper foundation for the admission of exhibits 1 and 2, because the re…
Practitioners open Janet TSCHETTER, Appellant, v. DOLAND BOARD OF EDUCATION of DOLAND SCHOOL DISTRICT # 56-2, Appellee when South Dakota business records turns on the distinction in this sentence: "The board argues that the exhibits fit within the business records exception to the hearsay rule found at SDCL 19-16-10." Do not lift it out of the facts the court was deciding.
STATE of South Dakota, Plaintiff and Appellee, v. Troy Lee REINHARDT, Defendant and Appellant
…674, 699 (8th Cir.2013) (holding that fingerprint cards are business records and the introduction of the fingerprints into evidence does not violate the Confrontation Clause); United States v. Dale, 494 Fed.Appx. 317, 318 (4th-Cir.2012) (holding that a fingerprint card is -not testimonial and therefore does not implicate the Confrontation Clause); United States v. Thornton, 209…
STATE of South Dakota, Plaintiff and Appellee, v. Troy Lee REINHARDT, Defendant and Appellant is worth reading on South Dakota business records because the court put the point in its own words: "Cir.2013) (holding that fingerprint cards are business records and the introduction of the fingerprints into evidence does not violate the Confrontation Clause); United States v. Dale, 494 Fed.Appx. 317, 318 (4th-Cir." Use that passage as the starting point, then read the facts that precede it.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in South Dakota trial practice.
Excited utterance — SDCL § 19-19-21(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — SDCL § 19-19-21(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — SDCL § 19-19-21(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under SDCL § 19-19-22(1), South Dakota opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under SDCL § 19-19-22(2)(a) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under SDCL § 19-19-22(2)(b) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
South Dakota dying-declaration opinions
STATE, Respondent v. BEST, Appellant
STATE, Respondent v. BEST, Appellant, 89 S.D. 227 (1975)
…icial statements under certain circumstances. For example, “dying declarations” or spontaneous utterances have generally been considered admissible, though hearsay, because human nature is such that these statements may ordinarily be found worthy of belief. A similar character of trustworthiness may be attributed to medical records compiled by X-ray technicians, physicians, nur…
Practitioners open STATE, Respondent v. BEST, Appellant when South Dakota dying declaration turns on the distinction in this sentence: "For example, “dying declarations” or spontaneous utterances have generally been considered admissible, though hearsay, because human nature is such that these statements may ordinarily be found worthy of belief." Do not lift it out of the facts the court was deciding.
STATE of South Dakota, Plaintiff and Appellee, v. Thomas John TUTTLE, Defendant and Appellant
…voluntariness of Tuttle’s confession, and Yellow Earrings' "dying declaration.” No written findings of fact and conclusions of law were entered, and the State proposed none. We have often expressed our preference for written, separate, appropriate, and specific findings of fact and conclusions of law in order to aid appellate review and to promote accuracy. State v. Flegel, 485…
STATE of South Dakota, Plaintiff and Appellee, v. Thomas John TUTTLE, Defendant and Appellant is worth reading on South Dakota dying declaration because the court put the point in its own words: "Tuttle’s confession, and Yellow Earrings' 'dying declaration.” No written findings of fact and conclusions of law were entered, and the State proposed none." Use that passage as the starting point, then read the facts that precede it.
STATE, Respondent v. PICKERING, Appellant
STATE, Respondent v. PICKERING, Appellant, 88 S.D. 230 (1974)
…death; (3) permitting two inmates to testify as to alleged dying declarations made by Sherwood; (4) permitting the Assistant State Chemist to testify as to the results of an analysis of certain stomach contents removed from Sherwood’s body; and (5) refusing to sequester the jury. These contentions will be considered in the order presented. (1) At the time of Sherwood’s death,…
Practitioners open STATE, Respondent v. PICKERING, Appellant when South Dakota dying declaration turns on the distinction in this sentence: "Sherwood; (4) permitting the Assistant State Chemist to testify as to the results of an analysis of certain stomach contents removed from Sherwood’s body; and (5) refusing to sequester the jury. These contentions will be considered in the order presented." Do not lift it out of the facts the court was deciding.
STATE, Respondent v. NELSON, Appellant
STATE, Respondent v. NELSON, Appellant, 88 S.D. 348 (1974)
…nts attributed to the deceased which were not admissible as dying declarations, and 2. The evidence is insufficient to justify the verdict, and 3. The trial court erred to his prejudice in receiving in evidence the preliminary hearing testimony of an absent witness. He also complains that our second degree manslaughter statute, SDCL 22-16-20, is unconstitutionally vague and tha…
Practitioners open STATE, Respondent v. NELSON, Appellant when South Dakota dying declaration turns on the distinction in this sentence: "The evidence is insufficient to justify the verdict, and 3. The trial court erred to his prejudice in receiving in evidence the preliminary hearing testimony of an absent witness." Do not lift it out of the facts the court was deciding.
STATE v. CLARK
STATE v. CLARK, 46 S.D. 490 (1923)
…state relied' very largely, if not wholly, upon a so-called dying declaration made by the deceased, two or three days before her death. The appellant objected most strenuously to thei reception of this declaration in evidence, and it is error predicated upon its reception that the appellant mainly relies for a reversal of the judgment. This declaration was in writing, written b…
STATE v. CLARK is worth reading on South Dakota dying declaration because the court put the point in its own words: "The appellant objected most strenuously to thei reception of this declaration in evidence, and it is error predicated upon its reception that the appellant mainly relies for a reversal of the judgment." Use that passage as the starting point, then read the facts that precede it.
Farnham v. Colman, Justice of the Peace
Farnham v. Colman, Justice of the Peace, 19 S.D. 342 (1905)
…r contempt, to produce at the hearing certain statements or dying declarations pursuant to a previously served subpoena duces tecum which the witness, though called, sworn, and examined, had refused to obey. It appears from the petition that the cross-examination of one of the witnesses for the state disclosed that Richard Galvin, the victim of the homicide, after all hope of l…
On dying declaration, Farnham v. Colman, Justice of the Peace speaks to the South Dakota dispute in this passage: "r contempt, to produce at the hearing certain statements or dying declarations pursuant to a previously served subpoena duces tecum which the witness, though called, sworn, and examined, had refused to obey. It appears from the petition that the cross-examination of one of the wi" The surrounding opinion shows how the court applied that language to the record.
STATE v. SWENSON
STATE v. SWENSON, 26 S.D. 589 (1910)
…as not made under circumstances rendering it competent as a dying declaration is too manifest to require discussion, and as we understand it, this is not seriously insisted upon by appellant’s counsel. It is, however, quite strenuously urged that the statement is competent a>s a verbal act accompanying a medical examination, and competent as disclosing and characterizing the th…
STATE v. SWENSON is worth reading on South Dakota dying declaration because the court put the point in its own words: "as not made under circumstances rendering it competent as a dying declaration is too manifest to require discussion, and as we understand it, this is not seriously insisted upon by appellant’s counsel. It is, however, quite strenuously urged that the statement is competent a>s a" Use that passage as the starting point, then read the facts that precede it.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under SDCL § 19-19-21(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
South Dakota medical-statement opinions
STATE of South Dakota, Plaintiff and Appellee, v. Jesse Harold BAWDON, Defendant and Appellant
…-8, which allows admission of hearsay given for purposes of medical diagnosis. In State v. Garza, 337 N.W.2d 823 (S.D.1983), this court stated that hearsay was admissible under this exception by rape victims if it was given to the doctor to describe what happened to the victim, rather than who assaulted the victim. Dr. Mogan testified that A.K. nodded affirmatively in response…
South Dakota opinions such as STATE of South Dakota, Plaintiff and Appellee, v. Jesse Harold BAWDON, Defendant and Appellant are cited where medical diagnosis hearsay is disputed. The court stated: "In State v. Garza, 337 N.W.2d 823 (S.D.1983), this court stated that hearsay was admissible under this exception by rape victims if it was given to the doctor to describe what happened to the victim, rather than who assaulted the victim. Dr. Mogan testified that A.K." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of South Dakota, Plaintiff and Appellee, v. Arley F. ROACH, Defendant and Appellant
…ou that the information provided by Nurse Mason relevant to medical diagnosis and treatment is admissible. -9- #26212 have to keep repeating it during the exam for me so I can just kind of know where to look. [¶24.] Mason further stated that she records the conversation she has with the victim in a “narrative.” Mason testified that this narrative serves a medical purpose becaus…
On medical diagnosis hearsay, STATE of South Dakota, Plaintiff and Appellee, v. Arley F. ROACH, Defendant and Appellant speaks to the South Dakota dispute in this passage: "Nurse Mason relevant to medical diagnosis and treatment is admissible. -9- #26212 have to keep repeating it during the exam for me so I can just kind of know where to look. [¶24.] Mason further stated that she records the conversation she has with the victim in a “narrative." The surrounding opinion shows how the court applied that language to the record.
Francis RODEN, Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee
…beas court held that the testimony was admissible under the medical diagnosis exception to the hearsay rule. SDCL 19-16-8. Although State v. Bawdon, 386 N.W.2d 484 (S.D.1986), and the cases supporting it5 make it clear that this exception applies to statements about “what happened,” rather than “who did it,” the habeas court determined that the witness’ reference to the “sister…
On medical diagnosis hearsay, Francis RODEN, Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee speaks to the South Dakota dispute in this passage: "SDCL 19-16-8. Although State v. Bawdon, 386 N.W.2d 484 (S.D." The surrounding opinion shows how the court applied that language to the record.
STATE of South Dakota, Plaintiff and Appellee, v. John Francis MORIARTY, Defendant and Appellant
…y rooted hearsay exception. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof are not excluded by § 19-16-4 in so far as reasonably pertinent to diagnosis or treatment, even though the declarant is available…
On medical diagnosis hearsay, STATE of South Dakota, Plaintiff and Appellee, v. John Francis MORIARTY, Defendant and Appellant speaks to the South Dakota dispute in this passage: "y rooted hearsay exception. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof are not excluded by § 19-16-4" The surrounding opinion shows how the court applied that language to the record.
STATE of South Dakota, Plaintiff and Appellee, v. Ruben GARZA, Defendant and Appellant
…eption to the hearsay rule: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof are not excluded by § 19-16-4 in so far as reasonably pertinent to diagnosis or treatment, even though the declarant is available…
On medical diagnosis hearsay, STATE of South Dakota, Plaintiff and Appellee, v. Ruben GARZA, Defendant and Appellant speaks to the South Dakota dispute in this passage: "eption to the hearsay rule: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof are not excluded by § 19-16-4" The surrounding opinion shows how the court applied that language to the record.
Use of depositions at trial
SDCL § 15-6-32 governs civil deposition use at trial. Criminal discovery follows SDCL ch. 23A; deposition testimony at trial requires SDCL § 19-19-22(2)(a) with unavailability under § 19-19-22(1).
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
South Dakota deposition / former-testimony opinions
MATTER OF NEGLECT AND DEPENDENCY OF D.T.
MATTER OF NEGLECT AND DEPENDENCY OF D.T., 89 S.D. 590 (1975)
…t the trial de novo in circuit court. The state offered the deposition of M. T., Jr., appellant’s former husband and the father of D. T. This deposition had been taken prior to the district county court trial and had been admitted into evidence at that proceeding. The state also offered into evidence the transcribed testimony of three witnesses who had testified before the dist…
MATTER OF NEGLECT AND DEPENDENCY OF D.T. is worth reading on South Dakota deposition / former testimony because the court put the point in its own words: "The state offered the deposition of M. T., Jr., appellant’s former husband and the father of D. T. This deposition had been taken prior to the district county court trial and had been admitted into evidence at that proceeding." Use that passage as the starting point, then read the facts that precede it.
STATE of South Dakota, Plaintiff and Appellee, v. Tory TIEGEN, Defendant and Appellant
…ed in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would lead an objective witness reasonably to believe that th…
Practitioners open STATE of South Dakota, Plaintiff and Appellee, v. Tory TIEGEN, Defendant and Appellant when South Dakota deposition / former testimony turns on the distinction in this sentence: "White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J." Do not lift it out of the facts the court was deciding.
STATE of South Dakota, Plaintiff and Appellee, v. Edwin T. JONES, A/K/A Tom Jones, Defendant and Appellant
…t the victim’s testimony at the preliminary hearing or at a deposition, in addition to being stenographically recorded, be recorded and preserved on videotape. The scope and manner of the examination and cross-examination shall be such as would be allowed at the trial. Notice of any such deposition pursuant to this section shall conform in all respects to the notice requirement…
On deposition / former testimony, STATE of South Dakota, Plaintiff and Appellee, v. Edwin T. JONES, A/K/A Tom Jones, Defendant and Appellant speaks to the South Dakota dispute in this passage: "The scope and manner of the examination and cross-examination shall be such as would be allowed at the trial." The surrounding opinion shows how the court applied that language to the record.
Larry E. MARONEY, Employee, Claimant and Appellant, v. Curtis R. AMAN and A-J Trucking, Employer and Appellee, and
…in the scope of his employment. II. Whether portions of the depositions of an expert witness should have been admitted as evidence. III. Whether Department erred in refusing to allow the testimony of an expert witness. STANDARD OF REVIEW [¶ 6] The standard of review applied to administrative appeals is well-established: We will overrule an agency’s findings of fact only when th…
South Dakota opinions such as Larry E. MARONEY, Employee, Claimant and Appellant, v. Curtis R. AMAN and A-J Trucking, Employer and Appellee, and are cited where deposition / former testimony is disputed. The court stated: "II. Whether portions of the depositions of an expert witness should have been admitted as evidence. III. Whether Department erred in refusing to allow the testimony of an expert witness." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of South Dakota, Plaintiff and Appellee, v. Virgil SPAANS, Defendant and Appellant
…and mother. In January of 1989, counsel for Spaans took the deposition of Curran. Before trial, Spaans moved to prevent the State’s experts from testifying as to their opinion of the truthfulness of the children. The court granted this motion. Spaans was tried before a jury on May 2, 3, and 4, 1989. Both children testified at trial after they were found competent to testify; de…
STATE of South Dakota, Plaintiff and Appellee, v. Virgil SPAANS, Defendant and Appellant is worth reading on South Dakota deposition / former testimony because the court put the point in its own words: "In January of 1989, counsel for Spaans took the deposition of Curran. Before trial, Spaans moved to prevent the State’s experts from testifying as to their opinion of the truthfulness of the children. The court granted this motion." Use that passage as the starting point, then read the facts that precede it.
Debra L. SCHULTZ, Individually and Administrator of the Estate of Roger L. Schultz, Deceased, Plaintiff and
…perative. In support of its motion Mills Mutual offered the deposition of James Best (Best), the manager of Farmers Cooperative at the time of the fire. Best testified that it was his understanding that Mills Mutual conducted the inspections for its own benefit (i.e., for the purposes of analyzing the underlying risks of providing insurance and rate-making) and that the inspect…
Debra L. SCHULTZ, Individually and Administrator of the Estate of Roger L. Schultz, Deceased, Plaintiff and is worth reading on South Dakota deposition / former testimony because the court put the point in its own words: "In support of its motion Mills Mutual offered the deposition of James Best (Best), the manager of Farmers Cooperative at the time of the fire. Best testified that it was his understanding that Mills Mutual conducted the inspections for its own benefit (i.e." Use that passage as the starting point, then read the facts that precede it.
DAVIS v. DAVIS
DAVIS v. DAVIS, 29 S.D. 420 (1912)
…ask impeaching questions as to the new matter taken in the depositions since the former trial, and the defendant may rebut and ask impeaching questions as to the new matter taken since the former trial, that the testimony when so- completed shall be the testimony of this case.” After the submission of said case to the court by both parties, the plaintiff served notice of motio…
South Dakota opinions such as DAVIS v. DAVIS are cited where deposition / former testimony is disputed. The court stated: "ask impeaching questions as to the new matter taken in the depositions since the former trial, and the defendant may rebut and ask impeaching questions as to the new matter taken since the former trial, that the testimony when so- completed shall be the testimony of this case.” A" That is the language to brief; the rest of the decision supplies the procedural posture.
Matter of DT
Matter of DT, 237 N.W.2d 166 (1975)
…t the trial de novo in circuit court. The state offered the deposition of M. T., Jr., appellant's former husband and the father of D. T. This deposition had been taken prior to the district county court trial and had been admitted into evidence at that proceeding. The state also offered into evidence the transcribed testimony of three witnesses who had testified before the dist…
Practitioners open Matter of DT when South Dakota deposition / former testimony turns on the distinction in this sentence: "The state offered the deposition of M. T., Jr., appellant's former husband and the father of D. T. This deposition had been taken prior to the district county court trial and had been admitted into evidence at that proceeding." Do not lift it out of the facts the court was deciding.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under SDCL §§ 19-19-23, 19-19-24, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
South Dakota agricultural and tribal-border cases require authenticated commodity records, school files, and law-enforcement video under SDCL § 19-19-23 before business-record shortcuts apply.
Why authenticity gets its own section in every South Dakota trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for South Dakota trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
South Dakota authenticity opinions
Alex ANDRUSHCHENKO and Nataliya Andrushchenko, as Guardian Ad Litem of D.A., a Minor, and Nataliya Andrushchenko
…ndrushchenkos argue that the use and care manuals were self-authenticating and should have been admitted under SDCL 19-17-1(4) & (9). They claim each manual was self-authenticating because of its title, its reference to contact information at the same address as the manufacturer, its appearance, contents, substance, and internal patterns coupled with being directed to the consu…
On authentication, Alex ANDRUSHCHENKO and Nataliya Andrushchenko, as Guardian Ad Litem of D.A., a Minor, and Nataliya Andrushchenko speaks to the South Dakota dispute in this passage: "ndrushchenkos argue that the use and care manuals were self-authenticating and should have been admitted under SDCL 19-17-1(4) & (9). They claim each manual was self-authenticating because of its title, its reference to contact information at the same address as the manufacturer," The surrounding opinion shows how the court applied that language to the record.
STATE of South Dakota, Plaintiff and Appellee, v. Brian Todd MACHMULLER, Defendant and Appellant — Sabers, J
….] The majority opinion recognizes that the manual was self-authenticating and admissible if proven relevant. That relevancy, however, is then linked to the treatment of issue 2 concerning the admissibility of Machmuller’s expert: “It follows that, if the doctor’s opinion was not otherwise admissible, the manual had no further relevance in the case.” This statement is confusing…
South Dakota opinions such as STATE of South Dakota, Plaintiff and Appellee, v. Brian Todd MACHMULLER, Defendant and Appellant — Sabers, J are cited where authentication is disputed. The court stated: "The majority opinion recognizes that the manual was self-authenticating and admissible if proven relevant." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Reeves
State v. Reeves, 2021 S.D. 64 (2021)
…urveillance video because proper foundation was not laid to authenticate the video. SDCL 19-19-901(a) governs authentication of evidence, stating, “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” SDCL 19-19-901(b) provides a non…
Practitioners open State v. Reeves when South Dakota authentication turns on the distinction in this sentence: "SDCL 19-19-901(a) governs authentication of evidence, stating, “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Do not lift it out of the facts the court was deciding.
Rosenbaum v. Foss
Rosenbaum v. Foss, 4 S.D. 184 (1893)
…on the grounds that neither the original mortgages nor duly authenticated copies of the same were filed in the office of the register of deeds of Kingsbury county, and that the Rosenbaums had no actual notice of the same, but that purported copies of said mortgages were on file in said office that cast a cloud upon the title and interest of said Rosenbaums to the property descr…
On authentication, Rosenbaum v. Foss speaks to the South Dakota dispute in this passage: "on the grounds that neither the original mortgages nor duly authenticated copies of the same were filed in the office of the register of deeds of Kingsbury county, and that the Rosenbaums had no actual notice of the same, but that purported copies of said mortgages were on file i" The surrounding opinion shows how the court applied that language to the record.
HALEY & LANG COMPANY v. VECCHIO
HALEY & LANG COMPANY v. VECCHIO, 36 S.D. 64 (1915)
…of account kept under the system adopted by plaintiff, and authenticated by the testimony of certain witnesses, was competent evidence. One Winterstien testified that he was credit man of plaintiff and had charge of the accounts for sales of merchandise, and passed on all orders; that -during the year 1913 plaintiff sold to defendant go-od-s consisting of fruits, candies, and…
HALEY & LANG COMPANY v. VECCHIO is worth reading on South Dakota authentication because the court put the point in its own words: "of account kept under the system adopted by plaintiff, and authenticated by the testimony of certain witnesses, was competent evidence. One Winterstien testified that he was credit man of plaintiff and had charge of the accounts for sales of merchandise, and passed on all orders;" Use that passage as the starting point, then read the facts that precede it.
STATE of North Dakota, and v. Robert Paul GACKLE, and
STATE of North Dakota, and v. Robert Paul GACKLE, and, 2015 N.D. LEXIS 288 (2015)
…ill be used rather than the. statutory method of blood test authentication: If the documentary evidence and the testimony of the participants in administering the test do not show scrupulous compliance with the methods approved by the State Toxicologist, the statutory mode of authentication cannot be used. In that case, the general rule of NDREv 901(a) applies and, a majority o…
STATE of North Dakota, and v. Robert Paul GACKLE, and is worth reading on South Dakota authentication because the court put the point in its own words: "If the documentary evidence and the testimony of the participants in administering the test do not show scrupulous compliance with the methods approved by the State Toxicologist, the statutory mode of authentication cannot be used." Use that passage as the starting point, then read the facts that precede it.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under SDCL §§ 19-19-23, 19-19-24 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent South Dakota appellate evidence opinions before mediation or motions in limine.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Frequently asked questions
What is the primary evidence source in South Dakota?
South Dakota applies the South Dakota Codified Laws ch. 19-19. South Dakota codified FRE-based rules in SDCL ch. 19-19; section numbers use a 19-19- prefix with rule-equivalent structure.
How do South Dakota courts decide relevance and unfair prejudice?
Under SDCL §§ 19-19-3, 19-19-5, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in South Dakota?
Party-opponent statements under SDCL § 19-19-19(4)(b) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under SDCL § 19-19-21(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in South Dakota?
SDCL § 15-6-32 governs civil deposition use at trial. Criminal discovery follows SDCL ch. 23A; deposition testimony at trial requires SDCL § 19-19-22(2)(a) with unavailability under § 19-19-22(1).
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. South Dakota authenticity practice starts with SDCL §§ 19-19-23, 19-19-24.
Where do dying declarations and medical statements fit?
Dying declarations under SDCL § 19-19-22(2)(b) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under SDCL § 19-19-21(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.