Certified Question in "SD v Nein 30660 Crim 175 2025" 2026 SDCR 11
Certified Question in "SD v Nein_30660 [2025] Crim 175" [2026] SDCR 11
| Date of judgment | 17th January 2026 |
| Judge(s) |
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| Held | When Trial Procedures are changed mid-trial, the new procedures should be adopted. |
| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION Per Curiam
Introduction
[1] This case comes before the Court as a certified question from Chief Judge Muggy from the case SD v nein_30660. The Chief Judge asked whether, where the CPA changes midtrial, said trial should proceed with the original CPA trial procedures or with an updated version, and whether or not applying the new CPA would be an ex post facto law. They also asked how to proceed if they have to use the new CPA and due to that certain important steps are skipped.
===Ex Post Facto Laws [2] To answer this quest===ion, we firstly must find the definition of an ex post facto law on SimDemocracy, and how it applies. Part 6, Article 21, Section 5 of the Constitution states:
“§5. No person shall be guilty of a criminal offense on account of any act or omission which did not constitute a criminal offense at the time when it was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offense was committed.”
[3] Reading this section of the Constitution, it is clear that the Constitution’s prohibition on an ex post facto law is intended for those who are charged with a crime, for instance in relation to being charged with a crime that did not exist when the offence was committed, or to impose a sentence longer than what the Criminal Code allowed at the time.
[4] This is further illustrated through the case In re Article 30 of the Civil Code 2025 [2025] SDCR 2, where the Court stated:
“[25] Torts are not “created” ex post facto. This will be elucidated upon below. However, we wish to additionally note that the Constitution provides no protection against ex post facto laws. Rather, this protection is afforded to persons who may be charged with a crime (i.e. the person may not be charged with a crime which was not an offense at the time of commission).”
[5] The point of interest here is that “The Constitution provides no protection against ex post facto laws. Rather, this protection is afforded to persons who may be charged with a crime”. Simply put, the Constitution does not provide protection against ex post facto laws which do not affect a person who is charged with a crime.
[6] This is however, at least on a face value contrary to Zepz367, ex parte, Shun (Appellant) v State of SimDemocracy (Respondent) [2025] SDSC 39 [5] where the SC found that there exist “the fundamental principles that govern SimDemocracy, primarily the notion that ex post facto laws are prohibited” and even going so far as to say that even constitutional Amendments cannot apply retroactively. The Court is now at a predicament, as this understanding of the Constitution is apparently at odds with the wording thereof. We believe there is however no need to resolve this issue, as applying the new CPA is not only no ex post facto law punishment, but rather no ex post facto law at all.
Is the new CPA an ex post facto law?
[7] This Court is convinced that applying the new CPA is no ex post facto law, because the matter the new CPA is addressing is not the specific crime but rather the ongoing proceeding. Said proceeding is not retroactively reevaluated, but rather continues with the new framework. I would be analogous to a department changing the ongoing practice due to changes in the law and is therefore fully constitutional.
On the legal value of the old CPA
[8] The next point to answer is what value the old CPA is. The Court will firstly look towards the case of SD v xteagess 2025 Crim 32, where the Trial Court stated that:
“[1] Over the course of this trial, the prosecution offered the defense a plea deal. The defense accepted this plea deal for a sixteen (16) month ban, and then plead guilty after their initial plea of not guilty. [2] The prosecution did not offer any aggravating factors. The defense did not offer any mitigating factors. [3] This court has found no fault within this plea deal. This case was filed and began before the passing of the Courtroom Procedures Act 2025, where this was still allowed.”
[9] The Court is not convinced by this argument, and this is where we turn to the legal principle of a “legal nullum” as established in Tie (Appellant) v SD (Respondent) 2025 SDCR 37. In this case, the legal nullum is that the statute in question has been repealed, meaning that in the eyes of the law, said statute no longer exists.
[10] Consequently, as the original trial procedures have been repealed they are such a legal nullum.
[11] Moving on, when examining the bill itself, the “Reverting CPA Amendments”, the Court can find no mention in the text of the bill coming into effect at a later date, thus it is to be presumed that the author of the bill did not intend for this, and rather for the bill to come into effect immediately. The old version of the CPA is hence to be disregarded immediately after the passage. The consequences of the application of this principle leading to the omission of important steps in a Trial
[12] This mechanism may however lead to certain important steps to be omissed. Usually this would be fixed by a lawmaker with the foresight to include sunset-clauses, but the Court is aware of what it is asking for here. In cases where the application of the law leads to the violation of Constitutional Rights, such as the Right to a Fair Hearing several procedures are possible. Namely, a mandatory question of law, where the Court of Review declares a law unconstitutional (not helpful here), or a broader interpretation where possible (see preliminary order in Question of law for a definitive order or proceedings [2025] SDCR 32 and Art. 28 §1.2. of the CPA in this version: “all valid interpretation”) or lastly, where necessary to be able to hear the parties, Kingred. Whether such is necessary must not be decided in this abstract question of law.
Verdict
[13] The Court finds that when the procedures of a trial are changed mid-trial, The Courts should adopt the new version of the trial procedures, with the old version being considered a legal nullum.
[14] Trial Procedures being changed mid trial does not violate the protection afforded by the ex post facto law clause of the constitution.
[15] Regarding how to apply the new CPA and what to do when this leads to the Right to a fair hearing being violated, the current legal framework offers many options and which to choose may not be answered in the abstract but is rather a decision to be taken by the Trial Judge.
Dicta
[16] The Court is of the opinion that it's also important to clarify that a part of this verdict simply comes because we are bound to the precedent from the Supreme Court. Zepz367, ex parte, Shun (Appellant) v State of SimDemocracy (Respondent) [2025] SDSC 39, which has created a scenario where all laws which are considered as ex post facto are unconstitutional, including constitutional amendments which are to be applied retroactively.
[17] The Supreme Court posits that there is a ‘notion that ex post facto laws are prohibited’ on SimDemocracy and that the ‘current constitution alludes to this’. There is no notion that all ex post facto laws are prohibited, which can be seen in the text.
[18] The text which is set forward in Article 21, §5 of the Constitution is explicit, it makes no mention that all ex post facto laws are prohibited, to argue that the part of the bill of rights which guarantees a right to a fair hearing also outlaws all ex post facto laws is laughable, nobody in SimDemocracy’s history until this Supreme Court believed that a right to a fair hearing applied not only to all laws, but in doing so outlawed all ex post facto laws. Indeed, the text itself very clearly makes no allusion, nor no reference to outlawing ex post facto laws entirely, for the entire time SimDemocracy has had this clause, it has been understood to simply apply to trials. This is a ludicrosity that we only accept due to being bound by the text.
[19] Simply put, the Supreme Court has invented this omnipotent right against ex post facto laws which simply has never existed, and does not even exist when you take the provision from a textualist approach, we make no assertions on whether the ultimate ruling in this case is correct, that is not our job, but we will not lie and say that we think the constitution says all ex post facto laws are unconstitutional, because it is not true.
[20] However, the opinion we have constructed for the majority in this case is still ultimately correct.