Before a jury is ever seated, a criminal case can be won or lost. Pre-trial motions are the defense attorney's primary tool for shaping the battlefield. In South Dakota, this practice is governed by SDCL 23A-8. This chapter outlines the pleadings and motions available to both sides, but for the defense, it's a playbook for dismantling the prosecution's case piece by piece.

Any defense or objection that can be determined without a full trial must be raised before the trial begins. This includes challenges to the court's jurisdiction, defects in the charging document, or claims of unconstitutional searches. Failing to raise these issues in a timely manner generally results in waiving them. The court can set a deadline for filing motions, and sticking to that schedule is critical.

A key early step is scrutinizing the charging document itself. South Dakota law allows for prosecution by either an indictment from a grand jury or, more commonly, an information filed by the prosecutor. While both serve to formally accuse a defendant, the basis for each can be challenged.

An indictment is presumed to have been founded on probable cause found by the grand jury. Challenging it is difficult and usually focuses on procedural errors in the grand jury process itself. An information, however, is based on a preliminary hearing or a sworn affidavit. This provides a clearer target. A motion to dismiss can argue that the evidence presented at the preliminary hearing, or contained in the affidavit, was insufficient to establish probable cause that the defendant committed the crime.

One of the most powerful pre-trial tools in a South Dakota defense attorney's arsenal is the statutory right to a speedy trial, codified in SDCL 23A-44-5.1. This is commonly known as the 180-day rule and it's stricter than the general constitutional guarantee.

The statute dictates that a criminal trial must commence within 180 days from the defendant's first appearance before a judicial officer on the complaint or indictment. If the state fails to bring the case to trial within this window, the case must be dismissed. However, the clock doesn't always run continuously.

Calculating the 180 days is a matter of careful record-keeping. The clock stops for certain periods, which are excluded from the count. Common excludable periods include:

• Delays caused by the defendant, such as filing motions or requesting continuances.
• Time during which the defendant is unavailable for trial.
• Delays resulting from competency examinations.

A defense attorney must meticulously track the timeline, objecting to any state-requested continuance that isn't for good cause and ensuring the record is clear about who is responsible for each delay. A carefully maintained calendar is the foundation of a successful motion to dismiss on these grounds.

Prosecutors often charge a defendant with multiple offenses in a single case (joinder of offenses) or charge multiple defendants together in one trial (joinder of defendants). While efficient for the state, this can be highly prejudicial to your client. South Dakota law provides the remedy: a motion for severance.

Joinder of Offenses (SDCL 23A-6-23): Two or more offenses can be charged in the same indictment or information if they are of the same or similar character or are based on the same act or transaction. The danger is that a jury might use evidence from one charge to infer guilt on another, or simply assume that a person charged with so many things must be a bad person.

Joinder of Defendants (SDCL 23A-6-24): Two or more defendants may be charged together if they are alleged to have participated in the same act or transaction. Here, the prejudice can arise from the confession of a co-defendant that implicates your client, or from the sheer volume of evidence against another defendant spilling over and tainting the jury's view of your own client.

Under SDCL 23A-11-2, if it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants, the court may order separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. Arguing for severance involves demonstrating to the court the specific, tangible prejudice your client will suffer if forced to go to trial alongside other charges or other people.

Successfully arguing for severance requires a concrete theory of prejudice. For example, you might argue that your client wishes to testify about Count A but remain silent on Count B, an option that a joint trial makes impossible. Or you could show that a co-defendant has an antagonistic defense, where the only way for the co-defendant to be found not guilty is for your client to be found guilty. These aren't abstract fears; they are specific trial-right impairments that a judge can and should prevent.

Let's test your understanding of these pre-trial procedures.

Mastering these pre-trial statutes and strategies is fundamental to effective defense work in South Dakota. By challenging the state's case before it ever reaches a jury, you protect your client's rights and can often secure a dismissal without the risk and expense of a full trial.