South Dakota evidence: comments on a "Giant step".

• Author: Hutton, Christine
• Position: Response to James R. Adams, South Dakota Law Review, vol. 24, p. 1, 1979

1. INTRODUCTION

   After the South Dakota Evidence Code was implemented by the South Dakota Supreme Court in 1978 and 1979, (1) Judge James Adams, law professor and former dean of the University of South Dakota School of Law, published his article, The South Dakota Evidence Code ... A Giant Step? (2) Judge Adams canvassed the codification movement that resulted in the Federal Rules of Evidence ("FRE"), then dissected the new South Dakota Code and offered suggestions for improvement.

   This article seeks to answer Judge Adams' query about whether the South Dakota Evidence Code was and remains a "giant step." To do so, the article first notes the deviations of the original code from the Federal Rules of Evidence and provides an update on the current provisions of the Code. (3) Second, a selection of recent criminal and civil cases (4) is included to help illustrate how the Code in South Dakota operates at present. (5) The overall assessment is that the amended Code now is in the mainstream, with the South Dakota Supreme Court's decisions mirroring that approach. Additional developments are on the horizon --for example, with the Confrontation Clause and expert testimony--and those trends are noted where appropriate.

2. PART I--CODE UPDATE

   Judge Adams quoted Judge Weinstein's proposition that "it is generally better for the trier--whether judge or jury--to have available as much of the non-repetitive evidence as possible." (6) Judge Adams agreed that "reliance on the wisdom of trial judges and confidence in the overall good judgment of trial jurors is well-placed," (7) and added that the codification of the Rules of Evidence is designed to improve the "proof portion of jury trials." (8)

   In a breach of contract case, testimony concerning another witness's reputation for truthfulness within the community was properly admitted. (173) However, the trial court abused its discretion by allowing further testimony recounting specific instances of conduct to establish the basis of their opinions of his truthful character. That was error given the limited nature of testimony admissible under S.D.C.L. section 19-14-9 (FRE 608(a)). Further, the evidence of specific instances of conduct regarding the same witness did not fall within the specifications of S.D.C.L. section 19-14-10 (FRE 608(b)). (174)

   Article VII-Opinions and Expert Testimony

   The Supreme Court analyzed the use of expert testimony in a number of contexts during the past year, offering a snapshot of several acrimonious issues. The Court addressed the acceptance or rejection of expert testimony; (175) the limitations on expert testimony in a child sexual abuse case; (176) a police officer serving as an expert in DUI field sobriety testing; (177) expert testimony of a police officer concerning the force used in a fatal car accident; (178) and expert foundation for use of DNA test results in a rape prosecution. (179) Most, but not all of the cases in the first of these categories resulted in a relatively routine application of the rules. (180) The latter four in the list raised difficult problems that can be expected to resurface before the Court in the near future.

   The topic of acceptance or rejection of expert testimony arose in a worker's compensation claim resulting in a finding of reversible error. The administrative law judge (ALJ) found plaintiff's expert-physician lacked a proper foundation to testify regarding the cause of plaintiffs injury. (181) According to the ALJ, plaintiff did not tell his expert about certain earlier injuries he had sustained, so the expert could not provide an unequivocal opinion concerning the causation of his present condition. (182) The Supreme Court reversed, noting the expert had known about plaintiffs earlier injuries for almost a year prior to giving his deposition, had continued to treat the plaintiff since that time, possessed certifications and specializations relevant to the plaintiff's type of injury, and knew about the strenuous nature of plaintiff's occupation. (183)

   Further treatment of the issue of acceptance or rejection of expert testimony occurred in a case involving two rear-end car collisions with plaintiff in the front vehicle. The jury did not award damages against one of the defendants based on lack of causation. (184) The Court noted that although plaintiff produced medical evidence concerning causation, the jury was not required to accept it. (185) The Court cautioned that expert testimony is to help the jury but not "supplant" it. (186) Sufficient testimony contradicted the expert, and alternative theories of causation were presented. (187) Therefore, the trial court did not err in refusing to grant a new trial. (188) Further explication of the rule appeared in a child custody dispute, (189) where the Court reiterated that the factfinder may "believe all, part, or none of an expert's testimony." (190) Thus, the trial court did not abuse its discretion in adopting the custody schedule proposed by the father.

   Additional examples of the general rule are found in two real property cases. In the first, an inverse condemnation claim, the amount of damages was in issue. (191) In reversing, the Court determined the trial court had erred in excluding expert testimony proffered by the City concerning the value of the property, and directed that evidence concerning the fair market value should be admitted. (192) In a second case, in a dispute concerning road assessments on several lots, the trial court excluded expert testimony under S.D.C.L. section 1912-1 (FRE 401). (193) The Supreme Court affirmed, agreeing that the proffered testimony addressed an irrelevant method of calculating assessments and was not limited to the agreed-upon functions of the Homeowner's Association. (194) The Court also agreed with the trial court that the appropriate method of dealing with a previously undisclosed expert opinion is to exclude it when the expert's deposition is read to the jury. (195)

   One contentious case in the category of the factfinder's acceptance or rejection of expert testimony arose in the context of a proposed visitation plan for a parent who had been acquitted of sexually abusing the child. (196) The Court recognized the general rule that the trier of fact may accept all or part of the expert's opinion. (197) In this case, the trial court had become dissatisfied with the child's treating counselor and had accepted recommendations from another counselor. That was within the court's discretion. Remand was ordered, however, because the court had a "misconception" that reunification was the goal. (198) On remand, as a result, the court was directed to reconsider the expert opinions developed in the case. (199)

   Several criminal cases also presented challenges to the state's introduction of expert testimony. A case involving allegations of child rape was one of the most significant decisions and was issued by a unanimous Court. (200) On appeal, the Court was asked to assess the expert testimony of a detective and a nurse. The detective addressed the denial of culpability both of a person falsely accused of a crime and of a person guilty of a crime. The trial court permitted the latter on the theory the defense had "opened the door" to the testimony, which was limited to the types of reactions suspects might have. (201) The Supreme Court affirmed on this question. More difficult was the medical testimony of the nurse--the Court reversed the conviction on this issue. (202) The nurse (who holds a Ph.D.) had testified that, although there was no physical evidence of abuse, her diagnosis was "child sexual abuse." (203) In reversing, the Court reiterated that an expert's testimony may embrace an ultimate issue, but an expert may not tell the jury what result to reach. (204) In child sexual abuse cases, experts may describe the typical characteristics and compare them to those of the child involved. When the expert diagnoses" abuse, however, which is based not on physical evidence but on the child's statements during a forensic interview, the expert is commenting on the credibility of the child. (205) Here, the expert merely "endorsed" the child's account with her diagnosis and essentially, told the jury what result to reach. (206) This exceeded the established limits of discussion of the characteristics of abused children, and an assessment of what medical evidence may exist in the case at bar. Allowing the opinion that abuse occurred improperly embraced the ultimate issue and created prejudicial error.

   A second criminal case raised a difficult question involving expert testimony. In a DUI prosecution, the Court grappled with the admissibility and limits of an officer's testimony concerning the horizontal gaze nystagmus (HGN) test administered to an individual being investigated for DUI. (207) The dispositive fact in the case was that the defendant s BAC exceeded 0.08, as disclosed by a blood test. (208) The Court stated that because of the BAC measurement, any error in admitting the HGN evidence was harmless, and the existence of the blood test made resolution of all of the HGN issues unnecessary. (209) The Court did acknowledge that courts nationwide are divided over the limits of HGN evidence: some allow properly trained officers to offer an opinion that the HGN results establish a BAC over the limit; some permit the HGN evidence simply to provide circumstantial evidence that the defendant was under the influence; or, the most restrictive view is to permit HGN evidence but not relate it to the defendant's impairment or blood alcohol level. (210) The Court declined to adopt any of these approaches because such a decision was not required to resolve the case. (211) In concurrence, Justice Severson invoked then-justice Amundson's concurrence in an earlier HGN case. (212) Justice Amundson had argued that an HGN test involves scientific evidence, and that a police officer's ordinary training in HGN testing would not be...