South Dakota

Overview

South Dakota’s criminal justice system reflects a familiar pattern in rural America: constitutional duties under Brady and Giglio exist on paper but lack corresponding infrastructure, guidance, or enforcement mechanisms. The state has no statutory requirement for law enforcement to report sustained misconduct to prosecutors, no obligation for prosecutors to track or share “Giglio-impaired” officer information, and no publicly accessible decertification or disciplinary database. With 66 counties, dozens of small police departments, and minimal oversight from the state level, disclosure practices remain ad hoc and vary widely by jurisdiction. South Dakota has also been notably silent on prosecutorial ethics enforcement, leaving the constitutional right to exculpatory and impeachment material at the mercy of discretion, resource limitations, and inertia.

Brief Description of Legal Landscape

Criminal prosecutions in South Dakota are led by State’s Attorneys, elected in each of the state’s 66 counties. The South Dakota Attorney General oversees statewide criminal appeals, criminal investigations, and prosecutions in cases of conflict or public corruption, but local prosecutors generally operate with considerable autonomy.

Key disclosure and legal standards include:

• South Dakota Codified Laws § 23A-13-1: Reflects Rule 16 of the Federal Rules of Criminal Procedure, requiring the state to provide “any material or information” that tends to negate guilt or reduce punishment—but does not mention impeachment specifically.

• South Dakota Rules of Professional Conduct, Rule 3.8(d): Requires prosecutors to disclose evidence or information tending to negate guilt or mitigate sentencing.

• South Dakota Open Records Law (SDCL § 1-27): Generally allows public access to state and local government documents, but with broad exemptions for law enforcement personnel and internal disciplinary records.

Law enforcement officers are certified by the South Dakota Law Enforcement Officers Standards and Training Commission, which can suspend or revoke certification for misconduct. However, there is no statutory requirement that such decisions be communicated to prosecutors or tracked for courtroom integrity purposes.

Historical Context

South Dakota has not seen the same volume of exonerations or national scandals involving law enforcement misconduct as some other states, but that may say more about a lack of scrutiny than a lack of risk. Public records on police disciplinary histories are sparse. Defense attorneys and civil rights organizations have long reported difficulty obtaining internal affairs records or disciplinary histories for testifying officers.

One of the few publicized incidents occurred in Pennington County, where a sheriff’s deputy with a prior domestic violence arrest continued to testify in criminal proceedings. The issue only came to light after a defense subpoena in a civil case uncovered details the prosecutor’s office had never been informed of. The case prompted brief internal discussions about disclosure obligations but resulted in no policy reforms or public guidance.

Similarly, state-level inquiries into excessive force and civil rights litigation have uncovered cases in which officers resigned in lieu of discipline and were subsequently rehired by neighboring jurisdictions—raising concerns about “wandering officers” whose misconduct is untracked and undisclosed.

Despite these red flags, South Dakota has not taken legislative or administrative action to establish Giglio tracking, enforce reporting duties, or systematize disclosure practices. There is no legal mandate to prevent an officer with sustained dishonesty from testifying—nor to inform defense counsel that such a history exists.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

South Dakota’s Constitution guarantees due process under Article VI, Section 2, and confrontation rights under Section 7, both mirroring federal protections.

Relevant statutory and professional standards include:

• SDCL § 23A-13-1: Requires the prosecution to disclose evidence “material to the preparation of the defense,” including exculpatory material.

• Rule 3.8(d), South Dakota Rules of Professional Conduct: Requires prosecutors to disclose any information that tends to negate guilt or mitigate punishment—even without a request from defense counsel.

• SDCL § 1-27-1.5(1): Exempts law enforcement internal personnel records from public disclosure unless ordered by a court or explicitly authorized by the agency.

Importantly, South Dakota has no statutes or rules requiring prosecutors to maintain a Giglio list, and no requirement that law enforcement notify prosecutors of sustained disciplinary findings unless criminal charges are filed.

Relevant Case Law and Judicial Interpretations

• State v. Buchholz, 403 N.W.2d 400 (S.D. 1987): Affirmed the duty to disclose exculpatory material but did not address systemic obligations or impeachment material directly.

• State v. Tuttle, 650 N.W.2d 20 (S.D. 2002): Held that failure to disclose evidence affecting a witness’s credibility may violate due process if the evidence is material and the defense could not otherwise obtain it.

Despite these rulings, South Dakota courts have not imposed systemic duties on prosecutors or police agencies to track or report Giglio-related information.

Implementation and Enforcement

Law Enforcement Policies and Training

South Dakota’s law enforcement agencies vary in size, resources, and internal policies. Most departments handle internal discipline privately, and there is no statutory obligation to share sustained findings with prosecutors. The Law Enforcement Standards and Training Commission may decertify officers, but such decisions are not required to be communicated to local State’s Attorneys, nor are they published online or made accessible to defense attorneys.

Training on Brady and Giglio disclosure obligations is not standardized across the state’s law enforcement training programs. Some officers may never receive formal instruction on how misconduct—particularly dishonesty or bias—can disqualify them as witnesses or trigger constitutional obligations.

Prosecutors similarly lack standardized procedures. While larger counties like Minnehaha and Pennington may track internal discipline informally or maintain individual awareness of problem officers, most counties lack the infrastructure, staff, or policy to conduct even basic Giglio reviews. Smaller counties often rely entirely on the honesty and initiative of police agencies to disclose relevant information.

Oversight Mechanisms and Accountability Structures

There is no dedicated body in South Dakota to monitor prosecutorial compliance with Brady or Giglio. Complaints about attorney misconduct are reviewed by the South Dakota Judicial Qualifications Commission and the State Bar’s Disciplinary Board, but public sanctions for prosecutorial failures to disclose impeachment material are exceedingly rare.

The Attorney General has the ability to provide legal opinions or model policies to prosecutors statewide but has not issued any binding guidance or created infrastructure to support Giglio tracking or compliance.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Pennington County Deputy Resignation (2019)
   A deputy resigned amid allegations of domestic violence but was not criminally charged. The sheriff’s department did not inform the State’s Attorney, and the deputy testified in multiple criminal cases before the issue was uncovered through unrelated civil litigation.

2. South Dakota Highway Patrol Transfer (2016–2018)
   An officer involved in a use-of-force complaint was transferred to another agency before internal review concluded. The officer’s conduct was not shared with prosecutors, and he later testified in a DUI trial without the defense ever learning of the complaint.

3. Minnehaha County “No-Call” Consideration (2021)
   The county briefly considered maintaining a “Do Not Call” list after a news outlet highlighted several testifying officers with civil rights complaints. However, the State’s Attorney’s Office ultimately rejected the policy, citing insufficient resources and lack of state guidance.

Outcomes and Implications

These cases reflect a consistent theme: without mandatory policies or disclosure infrastructure, prosecutorial candor relies on voluntary cooperation, institutional memory, or outside intervention. Officers with credibility issues continue to testify, often without prosecutors or defense counsel knowing of their impaired status. The absence of centralized tracking ensures the problem is repeated, not resolved.

Challenges and Gaps

Identified Issues within the State’s System

• No Giglio Tracking System: Prosecutors are not required to track or disclose credibility-impaired officers.

• No Law Enforcement Reporting Mandate: Police agencies are under no obligation to notify prosecutors of sustained misconduct findings.

• Restricted Access to Personnel Records: South Dakota’s open records law exempts most internal affairs documents from public or defense access.

• Lack of Training and Oversight: Neither prosecutors nor law enforcement are systematically trained or audited for disclosure compliance.

Legislative and Institutional Barriers

South Dakota’s political culture emphasizes local control and law enforcement autonomy. Prosecutors have no central oversight, and rural jurisdictions lack the administrative capacity to develop and maintain tracking systems. Efforts to introduce transparency legislation—such as mandatory reporting of officer misconduct or public decertification databases—have not been seriously pursued by the legislature.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Prosecutorial Giglio Lists
   Require all State’s Attorneys to track and disclose officers with sustained findings of dishonesty, bias, or constitutional violations.

2. Create a Police-to-Prosecutor Reporting Requirement
   Enact legislation obligating all law enforcement agencies to notify prosecutors within 30 days of any sustained disciplinary action relevant to courtroom credibility.

3. Link Officer Certification to Giglio Obligations
   Require the Law Enforcement Standards and Training Commission to notify prosecutors of decertifications or suspensions and flag officers whose credibility is compromised.

4. Expand Rule 23A-13-1
   Amend the state’s discovery rule to explicitly include sustained police misconduct and internal affairs findings as required disclosures.

Recommendations for Enhanced Transparency and Accountability

1. Publish a Statewide Misconduct and Decertification Registry
   Create a redacted, publicly accessible database of officers who have been decertified or found to have committed credibility-impairing misconduct.

2. Standardize Training Across Law Enforcement and Prosecutors
   Require annual instruction on Brady/Giglio obligations for all police officers and prosecuting attorneys, linked to professional certification.

3. Establish a Disclosure Compliance Oversight Body
   Task the Attorney General’s Office or a neutral commission with auditing Brady compliance, tracking systemic issues, and recommending reforms.

4. Reform Open Records Law for Disciplinary Transparency
   Modify SDCL § 1-27 to allow access to sustained misconduct findings with proper redactions, ensuring defense access to crucial impeachment material.

Conclusion

South Dakota’s promise of due process is undermined by its silence. Without a system to track misconduct, notify prosecutors, or verify credibility, constitutional guarantees are reduced to courtroom formalities. Giglio violations here are not the exception—they are the consequence of institutional inaction. Until South Dakota builds a structure that demands candor, truth in criminal trials will remain optional, uneven, and elusive.