SD (Appellant) v birdrone (Respondent) 2026 SDSC 3
SD (Appellant) v birdrone (Respondent) [2026] SDSC 3
| Date of judgment | 3rd April 2026 |
| Justices |
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| Held |
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| Ruling | 4-1 |
| Applicable precedent |
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MAJORITY OPINION by Justice Ivy Cactus
(with Chief Justice Ed, Justice Terak, and Justice Muggy agreeing, and Justice TheLittleSparty dissenting without opinion)
Introduction
[1] The State is seeking an appeal of Judge ppatpat’s decision not to allow witnesses to be admitted after pre-trial in SD v Birdrone [2025] Crim 172, following an unexpected challenge to the State’s evidence.
[2] This case is closely related to Certified Question - Ability to Call Witnesses Outside of Pre-Trial [2025] SDCR 42, in which the Court of Review heard a question from Judge ppatpat in SD v Birdrone [2025] Crim 172. The Court of Review, in a relatively short verdict, reiterated that witnesses are held to the same standard as other pieces of evidence: that is, the “new and vital” standard outlined in SD v Notcommunist366, Creative, & Acool [2025] Crim 103.
Summary of Previous Cases
[3] Given that the State’s argumentation relates directly to the Court of Review decision in question, the court sees it fit to outline the questions raised in said verdict, and how the Court of Review responded to them.
[4] The question by Judge ppatpat, as stated initially, was simply “whether a witness has to be admitted during pre-trial.”
[5] The Court of Review, in response, makes reference to Article 12 §1-3 of the Courtroom Procedures Act 2025, which states “witnesses may be called to testify by either counsel regarding facts to which they were personally witness,” without making any specific nod to when such a call needs to occur.
[6] Given this, the Court of Review turned to “more general evidence procedure set in Article 7 and Article 8 of the CPA,” which state that all “necessary motions” must be made in pre-trial, and give no nod to such admissions outside of pre-trial outside of Article 8§3, which establishes that “new and vital” evidence can be admitted during trial, unless as “observed in SD v Notcommunist366, Creative, & Acool [2025] Crim 103,” which originally outlined the new and vital standard as we currently know it.
[7] The Court of Review set this standard and then remanded the case back to the inferior court. Judge ppatpat, based on said guidance, rejected the State’s motion, at which point the State filed this interlocutory appeal.
Summary of the State’s Argumentation
[8] So, with that in mind, the court will now outline the specific reasoning brought by the State to this appeal.
[9] The petitioner’s first argument hinges on a rather tenuous differentiation between “permissive and mandatory language.” They argue that, yes, “Article 7, Section 3.7 states that [witness admitting] motions may be raised during pretrial,” that does not mean that such motions “must” be or “only” can be raised during pre-trial.
[10] They go on to say that Article 8’s silence on the matter does not mean that such actions are outlawed. In their view “nullum crimen” sine lege still applies, meaning that actions that are not outlawed explicitly by the law must be allowed.
[11] Furthermore, they say, such a motion was permitted in SD v Bapple [2025] Crim 164.
[12] The State then turns to an argument on the substance, stating that their witness testimony “would be new, as a testimony would be unobtainable before trial, and in this case, vital, as the prosecutor’s evidence was objected to only after trial had begun.”
Summary of the Respondent’s Argumentation
[13] The respondent makes a somewhat more detailed case, which goes as follows:
[14] The respondent starts by rebuffing the idea that witness testimony is analogous to other forms of evidence, but rather quickly abandons the idea. It is altogether rather unclear what point they were trying to make.
[15] They, then, go on to explain that Article 7§5 of the Courtroom Procedures Act states that “[a]ny evidence either party wishes to use during the trial must be submitted to the courts at the conclusion of the pre-trial,” given such, they argue, the only path the State has to admit evidence is via Article 8§3, and the State’s argument in [9] is futile.
[16] They then go on to explain that, per In re "Appeal of in Re Dragoncrxst new evidence SDCR 22" [2025] SDSC 42, parties have the ability to raise evidentiary objections during trial. As such, they say, such an objection can not make evidence “new and vital.”
[17] They conclude by making one final quotation of SD v NotCommunist366, Creative, & Acool [2025] Crim 103 [7], where the court states “[c]alling witnesses who were not motioned for in pre-trial should be held to the same standard as new evidence.”
Is Witness Testimony Evidence?
[18] Both the State, in passing, as well as the respondent, in [14], make nods to the idea that witness testimony may not qualify as “testimony.” Before the court can determine whether the new and vital standard is correct to apply, then, it must determine whether witness testimony even qualifies as evidence.
[19] This may seem obvious at first thought, because “material evidence” and “witness testimony” are surely subsets of “evidence”, and it seems strange to not treat them as such.
[20] For this, the court needs to thoroughly examine the Courtroom Procedures Act. It sure would seem that the CPA consistently treats “evidence” and “witnesses” separately. They have their own articles within the act, are mentioned separately in both Article 7 and Article 8, and so on and so forth. Mayhaps most damning, indeed, is that Article 8 consistently speaks often of “evidence or witnesses”, and even has evidence and testimony as separate sections of the trial. It is hard to say, then, that the talk of “new evidence” in Article 8§3 refers to the very “evidence and witnesses” that were listed separately earlier.
- [20.1] This is rather reflective of In re Writ of Prohibition - Lucas v Department of Justice [2025] SDSC 27. It would, indeed, be easiest for all parties to read “evidence” in Section 3 as meaning something different from other instances of “evidence” throughout the rest of the text. Sadly, though, “it is not 'textualist' to take every line of a text as independent of all others,” and the court must take “evidence” in the sense that it is used elsewhere within the Courtroom Procedures Act.
- [20.2] It is worth mentioning, even if slightly tangential, that there is a substantive difference between witness testimony and “hard” evidence (which the Courtroom Procedures Act refers to as simply “evidence”). Material evidence is able to establish hard objective truths to the court, whereas witness testimony is transient and reliant solely on their memory, tainted by perception and memetic drift over time. As such, material evidence is able to affect the court in a much greater way than witness testimony, and there is a real difference in the advantage gained by failing to mention one versus the other prior to their presentation in court. Whether this difference should be reflected in legislation in the way that it is is a question for the Senate, but it is not absurd to think of them differently and treat them as such.
[21] Rather frustratingly, then, both Certified Question - Ability to Call Witnesses Outside of Pre-Trial [2025] SDCR 42 and SD v NotCommunist366, Creative, & Acool [2025] Crim 103 [7] were wrongly decided, and, in turn, the vast majority of the argumentation submitted to this court is simply irrelevant.
Can Witnesses be Admitted During Trial?
[22] With this in mind, the court needs to analyze whether witnesses can be admitted during trial.
[23] Article 12 gives no hints, as stated by the Court of Review, although its language is broadly permissive. Article 7§5 and Article 7§3.7-3.8, likewise, do not give much help now that it is clear that witnesses do not count as “evidence” throughout the Courtroom Procedures Act.
[24] It is true that Article 7§3.7 does state that counsel “may make… any necessary motions,” but it does not limit motions to be made to just this stage of pre-trial. This does not, thus, preclude motions being made further down the line, especially not when made in response to developments in the trial. An example of such a motion would be a motion for interlocutory appeal.
[25] Returning to Article 12, the text states that “[e]ither party in a legal proceeding may motion to call witnesses, provided they offer adequate reasoning, subject to the judge's discretion.” We also know from Article 5§2 that a judge “may also take such other motions at any time which are described and allowed by law,” indicating that motions be made whenever they are described in law, and it goes to reason that such motions can be made at any time during proceedings, unless otherwise limited.
- [25.1] The court will not go so far as to concur with the State in [10] that such rises to the same level as nullum crimen sine lege; the court is not applying broad principles such as that here, merely it is applying normal rules of statutory interpretation. If the law states a motion is allowed “during” proceedings, it can only be read as across all proceedings and at any time, unless otherwise limited (by statute, procedural impossibility, or otherwise).
[26] Structurally, though, it does not make much sense for such a motion to occur after the allotted time for witness testimony has passed. Therefore, motions to admit witnesses may be made by either counsel at any point during trial prior to witness testimony for the side making such a call, and may be made during pre-trial at the proper time to raise motions, as described in §3.7.
Verdict
[27] There is no limitation preventing the State from motioning to admit a witness, and the trial court is instructed to decide whether to admit the witness on the motion's merits.