hearsay rule in South Dakota

1987When asked if he paid $240.00 to Trembath for the sale of ties to Montgomery, defendant replied, “$6.00 a tie times for, [sic] yea, two forty.” We have stated that “circumstantial guarantees of trustworthiness” under the residual exception to the hearsay rule is synonymous with “indicia of reliability” required under the confrontation clause test in Ohio v. Roberts, supra. State v. McCafferty, 356 N.W.2d 159 (S.D.1984).

1985In McCafferty we further stated “ ‘the indicia of reliability’ referred to by the Roberts Court and the ‘circumstantial guarantees of trustworthiness’ language in the residual exception to the hearsay rule are synonymous.” 356 N.W.2d at 163 .

2000There is a preference for live testimony over offering out-of-court statements because of the importance of cross-examination, however, “where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.” Id. at 356, 112 S.Ct. at 743 , 116 L.Ed.2d at 859 ; State v. Orelup, 520 N.W.2d 898, 901 (S.D.1994) (Orelup II); Ring, 983 F.2d at 820 (citing White, Wright, 497 U.S. at 815 , 110 S.Ct. at 3146 , 111 L.Ed.2d at 652 ). [¶ 44.] The State argues Shaina’s statements were excited utterances, and thus

2000There is a preference for live testimony over offering out-of-court statements because of the importance of cross-examination, however, “where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.” Id. at 356, 112 S.Ct. at 743 , 116 L.Ed.2d at 859 ; State v. Orelup, 520 N.W.2d 898, 901 (S.D.1994) (Orelup II); Ring, 983 F.2d at 820 (citing White, Wright, 497 U.S. at 815 , 110 S.Ct. at 3146 , 111 L.Ed.2d at 652 ). [¶ 44.] The State argues Shaina’s statements were excited utterances, and thus

2026According to the Sprys, Hermanek’s out-of-court statements are admissible -14- #30787, #30788 either as verbal acts or under the catch-all exception to the hearsay rule in SDCL 19-19-803(3). [¶30.] “Verbal acts are those ‘out-of-court statements [that] are operative legal facts which constitute the basis of a claim, charge or defense . . . and are nonhearsay.’” State v. Charger, 2000 S.D. 70 , ¶ 25, 611 N.W.2d 221, 226 (alteration in original) (quoting Banks v. State, 608 A.2d 1249, 1254 (Md. 1992)).

2026According to the Sprys, Hermanek’s out-of-court statements are admissible -14- #30787, #30788 either as verbal acts or under the catch-all exception to the hearsay rule in SDCL 19-19-803(3). [¶30.] “Verbal acts are those ‘out-of-court statements [that] are operative legal facts which constitute the basis of a claim, charge or defense . . . and are nonhearsay.’” State v. Charger, 2000 S.D. 70 , ¶ 25, 611 N.W.2d 221, 226 (alteration in original) (quoting Banks v. State, 608 A.2d 1249, 1254 (Md. 1992)).

2026According to the Sprys, Hermanek’s out-of-court statements are admissible -14- #30787, #30788 either as verbal acts or under the catch-all exception to the hearsay rule in SDCL 19-19-803(3). [¶30.] “Verbal acts are those ‘out-of-court statements [that] are operative legal facts which constitute the basis of a claim, charge or defense . . . and are nonhearsay.’” State v. Charger, 2000 S.D. 70 , ¶ 25, 611 N.W.2d 221, 226 (alteration in original) (quoting Banks v. State, 608 A.2d 1249, 1254 (Md. 1992)).

2026According to the Sprys, Hermanek’s out-of-court statements are admissible -14- #30787, #30788 either as verbal acts or under the catch-all exception to the hearsay rule in SDCL 19-19-803(3). [¶30.] “Verbal acts are those ‘out-of-court statements [that] are operative legal facts which constitute the basis of a claim, charge or defense . . . and are nonhearsay.’” State v. Charger, 2000 S.D. 70 , ¶ 25, 611 N.W.2d 221, 226 (alteration in original) (quoting Banks v. State, 608 A.2d 1249, 1254 (Md. 1992)).

2004Reeves v. King, 534 So.2d 1107, 1114 (Ala.1988); Wilson v. State, 756 P.2d 307, 312 (Alaska App.1988); Wallin v. Ins.

2004Reeves v. King, 534 So2d 1107, 1114 (Ala1988) ; Wilson v. State, 756 P2d 307, 312 (Alaska App1988) ; Wallin v. Ins.

2004State v. Milk, 519 N.W.2d 313, 315 (S.D.1994) (citing Zens v. Chicago, Milwaukee, St.

2004State v. Milk, 519 NW2d 313, 315 (SD 1994) (citing Zens v. Chicago, Milwaukee, St.Paul and Pac.

2019See Crawford, 541 U.S. at 54–57, 124 S. Ct. 1365–67 (holding the existence of a hearsay exception has no effect on the Confrontation Clause); see also, e.g., Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (applying Crawford to 404(b) evidence). 8 [¶26.] J.C.’s statements, although admitted to prove identity or common scheme or plan, constitute hearsay.

2008Id. at 51-52, 541 U.S. 36 , 124 S.Ct. at 1364 , 158 L.Ed.2d 177 . [¶ 44.] Although there are exceptions to the hearsay rule, the Court recognized that historically “there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case.” Id. at 55-56 , 541 U.S. 36 , 124 S.Ct. at 1367 , 158 L.Ed.2d 177 .

2001While the Confrontation Clause does not bar all hearsay statements against a criminal defendant, it does “bar[ ] the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Idaho v. Wright, 497 U.S. 805, 814 , 110 S.Ct. 3139, 3146 , 111 L.Ed.2d 638, 651 (1990).

2001While the Confrontation Clause does not bar all hearsay statements against a criminal defendant, it does “bar[ ] the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Idaho v. Wright, 497 U.S. 805, 814 , 110 S.Ct. 3139, 3146 , 111 L.Ed.2d 638, 651 (1990).

2017An error in admitting evidence under SDCL 19-19-803(6) “does not warrant reversal absent a showing that substantial rights of the party were affected.” Brown, 480 N.W.2d at 764 .

1998State v. Brown, 480 N.W.2d 761, 763 (S.D.1992).

1992State v. Watts, 85 S.D. 638, 643 , 188 N.W.2d 913, 915-916 (1971).

1992State v. Watts, 85 S.D. 638, 643 , 188 N.W.2d 913, 915-916 (1971).

1984The panel cited the recent case of United States v. Love, 592 F.2d 1022 (8th Cir.1979), wherein they noted the inherent unreliability of custodial statements implicating a third person with the observation that “ ‘a strong incentive to speak, whether it be truthfully or falsely * * * does not indicate sufficient reliability to bring the statement within the [penal interest] exception to the hearsay rule.’ ” 668 F.2d at 428 quoting from Love, 592 F.2d at 1026 .

1984The panel cited the recent case of United States v. Love, 592 F.2d 1022 (8th Cir.1979), wherein they noted the inherent unreliability of custodial statements implicating a third person with the observation that "`a strong incentive to speak, whether it be truthfully or falsely * * * does not indicate sufficient reliability to bring the statement within the [penal interest] exception to the hearsay rule.'" 668 F.2d at 428 quoting from Love, 592 F.2d at 1026 .

2024Hosp., Inc., 386 F.3d 729 , 736 (6th Cir. 2004) (agreeing that the hearsay exception set forth in Rule 803(4) “applies only to statements made by the one actually seeking or receiving medical treatment.”); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir. 1996) (holding that “Rule 803(4) does not purport to except, nor can it reasonably be interpreted as excepting, statements by the person providing the medical attention to the patient”); Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1985) (per curiam) (holding that “Rule 803(4) applies only to statements made by the

2024Hosp., Inc., 386 F.3d 729 , 736 (6th Cir. 2004) (agreeing that the hearsay exception set forth in Rule 803(4) “applies only to statements made by the one actually seeking or receiving medical treatment.”); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir. 1996) (holding that “Rule 803(4) does not purport to except, nor can it reasonably be interpreted as excepting, statements by the person providing the medical attention to the patient”); Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1985) (per curiam) (holding that “Rule 803(4) applies only to statements made by the

2021The court, while acknowledging Crawford’s nearly categorical holding that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements,” State v. Toohey, 2012 S.D. 51, ¶ 16 , 816 N.W.2d 120, 128 (quoting Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9), nonetheless declared Walking Eagle unavailable after expressing concerns as to whether the United States Supreme Court had definitively ruled on this issue where a witness has no memory of the events in -12- #29002 question. 5 The court reas

2021The court, while acknowledging Crawford’s nearly categorical holding that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements,” State v. Toohey, 2012 S.D. 51, ¶ 16 , 816 N.W.2d 120, 128 (quoting Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9), nonetheless declared Walking Eagle unavailable after expressing concerns as to whether the United States Supreme Court had definitively ruled on this issue where a witness has no memory of the events in -12- #29002 question. 5 The court reas

2019See Crawford, 541 U.S. at 54–57, 124 S. Ct. 1365–67 (holding the existence of a hearsay exception has no effect on the Confrontation Clause); see also, e.g., Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (applying Crawford to 404(b) evidence). 8 [¶26.] J.C.’s statements, although admitted to prove identity or common scheme or plan, constitute hearsay.

2019See Crawford, 541 U.S. at 54–57, 124 S. Ct. 1365–67 (holding the existence of a hearsay exception has no effect on the Confrontation Clause); see also, e.g., Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (applying Crawford to 404(b) evidence). 8 [¶26.] J.C.’s statements, although admitted to prove identity or common scheme or plan, constitute hearsay.

2012“The reliability of the statement stems from the influence of the event that overrides any reflective capability essential for fabrication.” State v. Floody, 481 N.W.2d 242, 250 (S.D. 1992).

2012“The reliability of the statement stems from the influence of the event that overrides any reflective capability essential for fabrication.” State v. Floody, 481 N.W.2d 242, 250 (S.D.1992).

2012“An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Fisher, 2011 S.D. 74, ¶ 32 , 805 N.W.2d 571, 578 (quoting State v. Krebs, 2006 S.D. 43 , ¶ 26, 714 N.W.2d 91, 101 ). [¶38.] To be admissible pursuant to the excited utterance exception to the hearsay rule, a hearsay statement must “relate ‘to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.’” State v. Midgett, 2004 S.D. 57 , ¶ 31, 680 N.W.2d 288, 295 (quoting SDCL 19-16-6 (R

2012“An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Fisher, 2011 S.D. 74, ¶ 32 , 805 N.W.2d 571, 578 (quoting State v. Krebs, 2006 S.D. 43 , ¶ 26, 714 N.W.2d 91, 101 ). [¶ 38.] To be admissible pursuant to the excited utterance exception to the hearsay rule, a hearsay statement must “relate ‘to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.’ ” State v. Midgett, 2004 S.D. 57 , ¶ 31, 680 N.W.2d 288, 295 (quoting SDCL 19-16-6