State Motto: Under God the people rule.
Criminal Cases
General Evidence
State v. Guthrie, 627 N.W.2d 401, 427 (2001) citing State v. Wright, 593 N.W.2d 792, 799 (1999)
“Our rules favor ‘the admission of evidence in the absence of strong considerations to the contrary.’"
State v. Karlen, 589 N.W.2d 594, 602 (1999)
“We have elected to employ an adversary system of criminal Justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal Justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that Justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or the defense.... Whatever [the privileges'] origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”
State v. Knecht, 563 N.W.2d 413 (1997) citing State v. Brings Plenty, 459 N.W.2d 390, 399 (SD 1990) (citing State v. Holland, 346 N.W.2d 302 (SD 1984)
“’Just because the [evidence was] harmful to [Defendant] does not mean [it was] unfairly prejudicial. Unfair prejudice means evidence that has the capacity to persuade by illegitimate means.’”
Audio
State v. Owen, 643 N.W.2d 735, 753 (2002) citing State v. McKercher, 332 N.W.2d 286 (1983)
“The defendant argued that he had a reasonable (and subjective) expectation that his phone conversation would be private. We disagreed, noting that a prisoner's constitutional rights are subject to restrictions. [State v. Owen, 643 N.W.2d 735, 753 (2002) citing] State v. McKercher, 332 N.W.2d 286 (SD 1983). We stated, ‘these restrictions allow jail officials to monitor and record conversations between detainees and their visitors for security reasons and to use the conversation as evidence against the detainee without violating the Fourth Amendment.’”
State v. Owen, 2002 S.D. 42, 643 N.W.2d at 753-754 (2002) citing Faehnrich, 359 NW2d 895, 899 (1984)
“. . . we held that typed transcripts may be used as visual aids when listening to recorded conversations.”
State v. Guthrie, 627 N.W.2d 401, 427 (2001)
“Defendant objected to use of audio taped conversation between his daughter and himself, arguing that the tapes made it appear that he was guilty and were therefore prejudicial. Court ruled that if no objection were made to the daughter testifying then the tapes were admissible as testimony because the daughter could testify to the same content of the tapes.”
State v. Michael, 332 N.W.2d 286 (1983)
Recorded statements between husband and wife while they are aware of recording are not privileged and admissible for inferences of guilt:
“Nor did any unfair prejudice result from admitting appellant's statements. SDCL 19-12-3. Appellant could not be prejudiced by any waiver of the spousal privilege because as we have already said these statements were not protected by any such privilege. Moreover, the statements were relevant to the question of consent and as inferences of consciousness of guilt.”
Computer Generated Illustrations
State v. Geise, 656 N.W.2d 30 (2002)
Thereafter, the Highway Patrol used a computer generated illustration to determine the weights and possible fines. In doing so, Officer Kotzea measured various axle groups within the outer most axles to determine whether any overweight violations existed under the "bridge formula" codified in SDCL 32-22-16.1. Officer Kotzea measured the length between the second and seventh axles on Geise's tractor-trailer as 52 feet with a total of six axles measured in the axle group. The total weight of the axle bridge 2-7, 106,100 pounds, was calculated by adding the individual weights of Axles 2, 3, 4, 5, 6, and 7. According to the bridge formula, the maximum weight limit for the "bridge" or span between Axles 2 and 7 on Geise's tractor-trailer was 85,000 pounds. Because the bridge weighed 106,100 pounds, the legal limit was exceeded by 21,100 pounds (106,100 – 85,000 = 21,100). Under SDCL 32-22-55, Geise was subject to a civil penalty of 37.5 cents per pound for 21,100 pounds for a total of $7,912.50. Under SDCL 32-22-56 (now repealed), the civil penalty would be doubled to $15,958. He was also subject to a penal fine of $133. Similarly, the troopers prepared computer generated illustrations of the weights, violations, and possible fines related to the two scrapers. Both Cat 627 scrapers had two axles that were spaced 24 feet apart. Using the "bridge formula," the troopers calculated that the maximum allowable weight for each scraper was 40,000 pounds (20,000 pounds per axle). Both scrapers were well over the allowable weight limit. The gross weight of the first scraper driven by Roland Clausen totaled 66,250 pounds, with Axle 1 weighing 36,000 pounds and Axle 2 weighing 30,250 pounds. Roland Clausen was subject to a civil penalty of 37.5 cents per pound for 26,250 pounds for a total of $9,843.75. Under former SDCL 32-22-56, the penalty would be doubled to $19,820.50, and his penal fine would be $133.
Sommervold v. Grevlos, 518 N.W.2d 733 (1994)
Grevlos offered a computer generated video animation to illustrate his accident reconstruction expert's testimony. The exhibit consisted of four components. Two video components were offered to show what Grevlos saw and what Grevlos would have seen if Sommervold would have had a light on his bicycle. One video component was offered to show that Sommervold should have seen Grevlos. The animation component was offered to "illustrate" Grevlos' expert's testimony. SDCL 19-17-1(9) requires the proponent of computer generated evidence to describe the system and show that the program produced an accurate result. Then the animation must be relevant, probative and nearly identical. State v. Jenkins, supra, 260 N.W.2d at 511. The animation must fairly and accurately reflect the oral testimony of the witness and be an aid to the jury in understanding the issues. People v. McHugh, 124 Misc. 2d 559, 476 N.Y.S.2d 721, 723 (N.Y. 1984). The animation is not similar enough to be admissible. The animation assumes that both bicycles were travelling 25 miles per hour but the evidence varied from 28 to 40 miles per hour. The animation also depicted the light from a streetlight cast clearly in a circle rather than diffused in an ellipse as shown by the evidence. The animation showed the wrong location (off center and west of the actual location) and the injuries to the riders were inaccurately depicted as being left side to left side when they were actually right side to right side *fn9 The trial court found that the exhibit added nothing to the testimony and would be more prejudicial than probative because "a video recreation of an accident . . . becomes in the nature of testimony and it stands out in the jury's mind. So it emphasizes that evidence substantially over . . . ordinary . . . spoken testimony." A judicial mind could reasonably reach this Conclusion. Therefore, the trial court exercised proper discretion in excluding the computer generated video animation.
Diagrams
State v. Aesoph, 647 N.W.2d 743, 755 (2002)
"Shaibani's opinion was based on more than one simple diagram. He testified at trial that he based his opinion upon his experience, forensic findings, physical evidence, autopsy reports and his own observations of the scene. The trial court conducted a Daubert hearing and concluded that: (1) Shaibani is qualified in the science of accident and injury reconstruction; (2) the science of accident and injury reconstruction is reliable, standardized, subject to peer review and widely accepted; (3) the scientific opinion of Shaibani is relevant to show how the victim died and whether that death was the result of an accident. See State v. Hofer, 512 NW2d 482, 484 (SD 1994) (adopting the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 LEd2d 469 (1993)). Shaibani's testimony did not lack foundation. Moreover, Aesoph's testimony eliminated any prejudice that could have come from Shaibani's testimony. Aesoph has failed to show that the trial court abused its discretion. Therefore, we affirm the admission of Shaibani's testimony."
State v. Hartman, 256 N.W.2d 131 (1977)
State's Exhibit 5, purporting to be a diagram of the accident scene, was admitted into evidence over defendant's objection that it lacked proper foundation. The defendant now maintains that the foundation was never established and that the introduction of the exhibit was reversible error. The exhibit, although testified to as accurately depicting the scene of the accident by two investigating officers, Officers Reinesch and Royston, was not drafted by them and was only testified to as accurately depicting the accident scene at 8 a.m., eight hours after the accident, not as a scale drawing of the scene. This exhibit was only for the purposes of illustration ; therefore, it is unnecessary to have its drafter present. State v. Thibodeau, 1975, S.D., 233 N.W.2d 326; see also State v. Aarhus, 1964, 80 S.D. 569, 128 N.W.2d 881. An exhibit introduced for the purposes of illustration is admissible if it clearly depicts the factual situations and will allow the trier of facts to more clearly understand a witness's descriptions. McCormick on Evidence, § 213 (E. Cleary Ed., 2d Ed. 1972). Officer Reinesch testified that all of the measurements which appeared on the drawing had been made by himself and Officer Royston. The defendant's only objection would be that the undesignated features, such as the road width, curb length, ditch width and fence and pole locations, were apparently drawn to scale. "It follows from the principle upon which a diagrammatic representation may be employed to illustrate or express the testimony of a witness, that it may be so employed though not made by the witness, or by any other witness in court, or indeed by any known person, provided it is verified to the satisfaction of the trial Judge as a correct portrayal of the facts, by a witness having the necessary knowledge to do so. Questions of accuracy, of the possible bias or lack of knowledge of the person who made the plat or drawing, and of the effect of the paper upon the witness as leading, are open to opposing counsel in cross-examination and argument." 9 A.L.R.2d § 9 at 1060. The introduction, in any event, is to be determined by the trial court, and its determination will not be overruled except for an abuse of discretion. We find no abuse of discretion in this instance. See generally Annot., Drawings to Illustrate Testimony, 9 A.L.R.2d 1044.
Photos
State v. Owen, 2002 S.D. 42, 643 N.W.2d at 755 citing State v. Novaock, 414 NW2d 299, 302 (SD 1987)
“It is well settled that photographs are generally admissible where they accurately portray anything that a witness may describe in words [. . .] If relevant, photographs are not rendered inadmissible merely because they incidentally tend to arouse passion or prejudice. [Citations omitted]. Autopsy photographs fall within these rules. Although disturbing and cumulative, autopsy photographs may be admitted when they are necessary to aid in an expert's presentation of evidence.”
State v. Novaock, 414 N.W.2d 299 (1987) citing State v. Holland, 346 N.W.2d 302,307 (S.D. 1984)
“Although the photographs and slides were grotesque and the admission of both was cumulative, such admissions were not improper because they were necessary to aid the expert's presentation, prevent jury distraction, and aid the jury.”
Videos
State v. Owen, 643 N.W.2d 735, 753 (2002)
“Owens made incriminating statements to his mother . . . This phone conversation was videotaped and admitted into evidence.”
“Opposing party bears the burden of showing that there was a subjective expectation of privacy.”
State v. Owen, 643 N.W.2d 735 - 754 (2002)
“’[The defendant] appears to first notice the metal plate with the video lens and bends over and looks at it closely.’ [. . .] thereafter, [the defendant] stood in positions to block the view of the camera or sit in a position that was out of the view of the camera [. . .] [the defendant] stated the ‘intercom thing, speaker thing, [is] taping everything I'm saying.’ [. . .] Later, [. . .] [the defendant] again got up and approached the metal covering and clearly attempted to place his thumb over the place in the cover where the holes were located. The trial court observed that [the defendant’s] conduct made it ‘obvious to anyone watching the tape that the Defendant knew and believed he was being recorded during the phone call.’"
State v. Berhanu, 724 N.W.2d 181 (2006)
At trial, the State offered the testimony of Detective Bruce Millikan from the Sioux Falls Police Department. Detective Millikan interviewed Berhanu after he was arrested. The interview was recorded and the tape was entered into evidence at trial. The tape was not played in open court, but Detective Millikan summarized for the jury the substance of the interview. (Footnote 1 - The Detective testified that the video of the interview was difficult to understand because several times there would be more than one person talking at a time. But, the detective took notes immediately after the interview. Jurors were allowed to view the interview videotape in the jury room if they so desired.).
Video Editing
State v. Owen, 2002 S.D. 42, 643 N.W.2d at 75?
“The trial court noted that most people would probably ‘figure out’ that there was some editing of the tapes just by watching them. We find that the trial court was correct in its assessment and that no prejudice resulted to Owens from any such editing.”
Please note that while we do try to maintain the latest visual evidence case law on this site, you should not rely on the accuracy of this information. Many of the cases catalogued merely provide historical background for larger reference. Please do not construe any information you read on this site regarding state laws as legal advice or legal authority.
Other Jurisdictions
South Dakota
Subjects
Criminal Cases