SOUTH DAKOTA EVIDENCE: SIGNIFICANT DEVELOPMENTS.

• Author: Hutton, Chris

1. INTRODUCTION

   Readers of the South Dakota Law Review who are on the alert for South Dakota Evidence Code updates received their last one in 2014. Given the activity from the South Dakota Supreme Court and the South Dakota Bar in the realm of evidence, another survey of recent developments is in order. This update covers cases from 2014 to mid-2017, and activity on the South Dakota Evidence Code ("Code") during the same period. (1) The article is organized to follow the organization of the Code. In each section, the update for the Code provisions appears first, followed by the discussion of recent cases.

2. PART I--CODE UPDATE

   The South Dakota Bar Evidence Committee initiated a project in 2011 to study and suggest revisions to the Code of Evidence. (2) This was prompted by the 2011 revision to the Federal Rules of Evidence ("FRE"), which focused on stylistic changes. The point of the federal endeavor was to simplify the language and to clarify some points, resulting in a code that read more clearly for the most part. During that process, the United States Supreme Court also adopted some suggested substantive changes.

   The South Dakota Bar approved the South Dakota Bar Evidence Committee's suggested revisions to the Code at its June 2014 convention. The recommended changes were submitted to the South Dakota Supreme Court for its consideration. In the meantime, and as noted above, the United States Supreme Court adopted a handful of substantive changes; these were non-controversial amendments, and they were reviewed by the South Dakota Bar Commission. The Bar Commissioners recommended adoption, and these changes were included in the larger proposal submitted to the South Dakota Supreme Court. (3)

   As part of its review, the South Dakota Bar Evidence Committee noted where substantive changes were at issue. It recommended adoption of a few such changes that would be non-controversial but refrained from recommending significant changes to the Code. The South Dakota Supreme Court, however, set a number of rules for hearing, where it considered several major substantive changes to the Code along with several minor amendments. The hearing was on September 1, 2015, and the Court adopted many of the revisions to the rules that it had included in the notice. The Court also approved re-numbering the Evidence Code to conform to the ERE numbering system and moved the Code to S.D.C.L. Ch. 19-19.

3. PART II--CASE UPDATE

   United States Supreme Court

   Five cases heard by the United States Supreme Court from 2014 to mid-2017 considered issues under the FRE. Two were unusual in that they addressed Rule 606(b), regarding juror testimony on impeachment of a verdict. (4) One addressed the Confrontation Clause and hearsay rules, (5) one dealt with expert testimony, (6) and one was a case involving general relevance. (7) The Court's decision in Peha-Rodriguez broke new ground in endeavoring to address racial discrimination in the criminal justice system. The remaining cases were more routine in their application of existing rules. The cases appear in the ensuing sections, which are organized by the numerical articles of the rules.

   South Dakota Supreme Court

   The South Dakota Supreme Court has decided a number of important cases with evidence issues during the timeframe covered by this article. The vast majority of decisions reflected unanimity on the Court with respect to these issues. The opinions are categorized to track the topics of each article of the Code. Each case is discussed briefly, and the effort has been to include every case that discussed a pertinent provision of the Code. Some cases merely cited to a provision and did not discuss it; thus, for the most part, those cases were not included in this article.

4. UPDATES TO SOUTH DAKOTA RULES OF EVIDENCE

   1. ARTICLE I--GENERAL PROVISIONS

      Code Provisions

      The South Dakota Supreme Court adopted the stylistic changes to Article I as reflected in the revised FRE (8) and recommended by the South Dakota Bar Evidence Committee and South Dakota Bar. (9) The Court made no substantive changes to the article but moved it to sections 19-19-101 through 19-19-106 of the South Dakota Codified Laws.

      Case Law

      Four noteworthy cases interpreting sections of Article I were decided during this article's time frame. The first was Liebig v. Kirchoff, (10) a suit for specific performance of a contract and numerous other claims. (11) The evidence issue centered on a motion in limine filed by the defendant seeking to exclude evidence related to damages. (12) The plaintiff argued the defendant's objection to introduction at trial of evidence on this point was waived when the defendant failed to renew the objection despite succeeding at the motion stage. (13) The Supreme Court cited Rule 19-9-3 (Rule 103(a)) (14) and held that "the circuit court's in limine ruling was a final and authoritative determination regarding the admission of evidence." (15) Therefore, the defendant's "claimed error was preserved for appeal." (16)

      Similarly, in State v. Birdshead, (17) the Supreme Court addressed the requirements of Rule 103(a) in the context of a motion to exclude other acts evidence pursuant to Rule 404(b). (18) The trial court had commented that the evidence of other acts would probably be admitted to refute any claim of accident, but "left the matter open for a final ruling at trial." (19) The Supreme Court reiterated that a defendant "must obtain a definitive ruling on the record admitting or excluding the evidence," concluding the defendant had objected sufficiently to preserve review of the admission of several pieces of evidence. (20) The Court determined there was no prejudice identified with respect to the admission of three pieces of evidence and thus denied relief. On the fourth incident, the Court reviewed the facts of the proffered other act in detail, concluding it was factually relevant and not erroneously admitted under Rule 403. (21) The Supreme Court noted that lack of record evidence that the trial court engaged in the Rule 403 balancing test would not preclude affirmance because the Supreme Court would "presume that the circuit court weighed the evidence before ruling on the motion." (22)

      Liebig and Birdshead stand for the proposition that Rule 103(a) does not require a subsequent objection to evidence admitted in violation of a court's ruling on a motion in limine excluding the evidence. However, such an objection--although not required--can be insurance against the trial court or Supreme Court's determining that the issue has been waived. (23)

      In a related matter, three criminal cases illustrated the pitfalls of a defendant's failure to object to evidence at trial. In State v. Chipps, the defendant was convicted of several counts involving burglary and theft. (25) On direct appeal, he alleged ineffective assistance of counsel based on the failure to challenge "certain witness testimony and prosecutorial conduct." (26) Because counsel had failed to object, the defendant had the burden of establishing that, if objections had been made, they would have been sustained and that the outcome of trial would have been different. (27) The Court determined he had not met that burden. (28)

      Likewise, in State v. Janis, (29) a trial alleging the defendant had sexually assaulted a person incapable of giving consent, counsel did not object to several comments made by the prosecutor. (30) The Supreme Court reviewed for plain error and determined the prosecutor's comments on voir dire "could only serve to inflame the jurors' prejudices." (31) Furthermore, the numerous comments about marriage and wedding vows during trial and closing amounted to inadmissible character evidence pursuant to the requirements of Rule 404(a). (32) Although these errors thus amounted to plain error, the defendant did not obtain relief because he failed to demonstrate that the outcome of trial would have been different absent the error. (33) Justice Kern dissented on this point. (34)

      Finally, State v. Greenwood (35) was further confirmation of the obligation to lodge objections at trial. The defendant was forced to argue on appeal that plain error necessitated reversal of his conviction for aggravated assault. (36) The alleged error was expert testimony that the victim had received "serious bodily injury." (37) The Court found neither plain error nor any error in admitting the testimony. (38)

      In contrast to Liebig and Birdshead, then, Chipps, Janis, and Greenwood reinforce the requirement for counsel to object and demonstrate the consequences on direct review, i.e., no relief absent proof that the outcome of trial would have been different.

   2. ARTICLE II--JUDICIAL NOTICE OF ADJUDICATIVE FACTS

      Code Provisions

      As was the case with the other sections of the Evidence Code, the South Dakota Supreme Court adopted stylistic changes to Article II to align it with the language of the FRE and moved the article to S.D.C.L. Ch. 19-19. The Court also made substantive changes: it eliminated Rule 201(g) and amended Rule 201(f). (39) These two changes to the rule addressed a potential problem under the Sixth Amendment with respect to prior Rule 201(g)'s command that the court instruct the jury in a criminal case that it "must" accept a noticed fact as conclusive. Recognizing that the jury has the power and responsibility to determine the facts at trial, the modified rule properly treats criminal and civil cases differently in requiring that the jury in a civil case is told that it "must" accept any noticed fact as conclusive, while the jury in a criminal case is told that it "may or may not" accept the noticed fact as conclusive. (40)

      Case Law

      Four recent civil cases raised questions concerning the taking of judicial notice. Mendenhall v. Swanson (41) arose from a divorce/custody situation which involved several related lawsuits as well. The case at bar was a lawsuit for intentional infliction of emotional distress and alienation of...