Certified Question - Ability to Call Witnesses Outside of Pre-Trial 2025 SDCR 42

Certified Question - Ability to Call Witnesses Outside of Pre-Trial [2025] SDCR 42

Date of judgment	3rd January 2026
Judge(s)	Chief Judge Muggy Court of Review Judge Thyme Court of Review Judge Hmquestionable
Held	Witnesses must be admitted during pre-trial unless circumstances make them new and vital to a party’s case arise
Ruling	3-0
Applicable precedent	The Courtroom Procedures Act 2025 omitting something in Articles 7 and 8 is to say that it is not able to be done in that stage of trial [2.3] Calling witnesses after pre-trial must be held to the same standard as admitting new evidence. [3] Affirms SD v Notcommunist366, Creative, & Acool [2025] Crim 103

MAJORITY OPINION by Chief Judge Muggy

(With Judge Thyme and Judge Hmquestionable agreeing)

Introduction

[1] This certified question, being “whether a witness has to be admitted during pre-trial,” comes before the court via the prosecuting attorney in SD v Birdrone [2025] Crim 172 wishing to call a witness(s) during the testimonial part of trial in order to establish facts that the defense is contesting.

Status of Witnesses in the Courtroom Procedures Act 2025

[2] In answering this certified question, we must turn to the procedure the Courtroom Procedures Act 2025 (henceforth the “CPA”) establishes for witness admittance. Namely Article 12 §1 thru §3 and more general evidence procedure set in Article 7 and Article 8 of the CPA.

[2.1] The procedure set in the relevant sections of Article 12 do not give this court any specific period in trial in which witnesses may be admitted, and if viewed in isolation, seem to allow for the admittance of witnesses in really any point in a trial, so long as adequate reasoning is provided for their admittance.

[2.2] Though, we cannot simply look at Article 12 in isolation, and must account for the CPA’s evidentiary procedure set in Article 7, specifically 7, which explicitly states that any “necessary motions” must be made to the court during pre-trial.

[2.3] There is also, at no point in Article 8, a mentioned way in which a party may admit something under regular conditions, and thus it must have been done in pre-trial.

Does the Courtroom Procedures Act 2025 Allow for Witnesses Admitted After Pre-Trial?

[3] As this court already answered, under normal conditions, no, a party cannot call a witness after a pre-trial has been finished. A similar instance of this was observed in SD v Notcommunist366, Creative, & Acool [2025] Crim 103, in which Justice IvyCactus correctly determined that going into trial, all parties should be aware of the evidence and witnesses that are to be used unless it isn’t possible (which is why Article 8 §3 of the CPA exists). So, if a witness can be argued to be “new” and vital to a party’s case, and a court accepts them, that is the only case other than pre-trial in which a witness can be admitted.

Verdict

[4] Witnesses must be admitted during pre-trial unless circumstances make them new and vital to a party’s case.

Post-Script

[5] Originally, this verdict was made to make a distinction between documentary evidence (like screenshots) and testimonial evidence (like witnesses), but due to the unresolved contradictions the CPA presents when referring to “evidence” in general (see: Article 13 and Article 8 §1.2 thru §1.4) the court chose to forego making this conclusion, and leaves it up to the legislature to resolve, because legislating from the bench is bad.

Citations

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