22.533.10 97th Legislative Session 637

2022 South Dakota Legislature

Senate Bill 82

Introduced by: Senator Duhamel

An Act to revise the admissibility of certain statements made by persons with developmental disabilities concerning certain crimes.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 19-19-806.1 be AMENDED:

19-19-806.1. A statement made by a child under the age of thirteen, or by a child thirteen years of age or older person of any age who is developmentally disabled as defined in § 27B-1-18, describing any act of sexual contact or rape performed with or on the child or person by another, or describing any act of physical abuse or neglect of the child or person by another, or any act of physical abuse or neglect of another child observed by the child or person making the statement, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant or in any proceeding under chapters 26-7A, 26-8A, 26-8B, and 26-8C in the courts of this state if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child or person either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness.

However, if the child or person is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

No statement may be admitted under this section unless the proponent of the statement makes known the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.

Underscores indicate new language.

Overstrikes indicate deleted language.