23A-5-1      (Rule 6(a)) Circuit court order for grand juries--Number of members--Summons of jurors.
23A-5-2      New grand jury ordered after discharge of original jury--Other causes.
23A-5-3      (Rule 6(b)(1)) Grounds for challenge to array or individual jurors--Trial of challenge.
23A-5-4      Summons of new jurors after challenge--Oath of jurors chosen for particular case.
23A-5-5      (Rule 6(b)(2)) Dismissal of indictment because grand jurors not qualified.
23A-5-6      (Rule 6(c)) Foreman and deputy foreman of grand jury--Powers and duties--Clerk of grand jury--Record of proceedings.
23A-5-7      Oath of grand jurors.
23A-5-8      Charge to grand jury by court--Commencement of inquiries.
23A-5-9      General powers of grand jury--Access to prisons and records.
23A-5-10      Advice sought from court or prosecuting attorney.
23A-5-11      (Rule 6(d)) Appearance by prosecuting attorneys before grand jury--Presence of other persons--Counsel advising witnesses.
23A-5-11.1      Recording of testimony of witness before grand jury.
23A-5-12      Testimony before grand jury by subject of investigation--Waiver of immunity.
23A-5-13      Notice of rights to subject appearing before grand jury.
23A-5-14      Removal and replacement of attorney for witness appearing before grand jury.
23A-5-15      Evidence heard by grand jury--Order for production of evidence.
23A-5-16      (Rule 6(e)) Restrictions on disclosure of grand jury proceedings--Immunity of jurors--Sealing of indictments.
23A-5-17      Disclosure by prosecuting attorney of evidence received by grand jury.
23A-5-18      (Rule 6(f)) Quorum of grand jury--Votes required for indictment--Witnesses named on indictment--Dismissal of charge on failure to indict.
23A-5-19      Report filed when indictment not issued.
23A-5-20      (Rule 6(g)) Term of service of grand jury--Excuse and replacement of jurors.

23A-5-1. (Rule 6(a)) Circuit court order for grand juries--Number of members--Summons of jurors.

The circuit court shall order one or more grand juries to be summoned only when it appears to the circuit judge's satisfaction that a grand jury is necessary or desirable for the investigation of public offenses or misconduct in office. A grand jury shall consist of not less than six nor more than ten members. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement.

Source: SDC 1939, § 34.1201; SL 1959, ch 233; SDCL, § 23-29-1; SL 1978, ch 178, § 44; SL 1979, ch 159, § 4; SL 1994, ch 176.

23A-5-2. New grand jury ordered after discharge of original jury--Other causes.

If a grand jury is discharged by an allowance of a challenge to the panel, or if an offense is committed during the sitting of the court after the discharge of a grand jury, or if after such discharge a new indictment becomes requisite by reason of an arrest of judgment or by the setting aside of an indictment, or if for any other good and sufficient cause another grand jury may become necessary, a court may in its discretion order that another grand jury be summoned, and the court may to that end make an order to summon another grand jury according to the provisions of chapter 16-13.

Source: CCrimP 1877, § 175; CL 1887, § 7202; RCCrimP 1903, § 174; RC 1919, § 4668; SDC 1939 & Supp 1960, § 34.1202; SDCL, § 23-29-15; SL 1978, ch 178, § 44.

23A-5-3. (Rule 6(b)(1)) Grounds for challenge to array or individual jurors--Trial of challenge.

Either the prosecuting attorney or a defendant may challenge the array of grand jurors on the ground that a grand jury was not selected, drawn or summoned in accordance with law and may challenge an individual grand juror on the ground that the juror is not legally qualified. Challenges shall be made before the administration of the oath to the jurors and shall be tried by the circuit court.

Source: SDC 1939 & Supp 1960, §§ 34.1204, 34.1205; SDCL, §§ 23-29-2, 23-29-5; SL 1978, ch 178, § 46.

23A-5-4. Summons of new jurors after challenge--Oath of jurors chosen for particular case.

Whenever challenges to individual grand jurors are allowed, the court shall make an order to the sheriff, deputy sheriff, or coroner, to summon without delay, from the residents of the county, a sufficient number of persons to complete or to form a grand jury. A grand jury formed and impaneled as to and in a particular case, after a challenge or challenges to individual grand jurors have been allowed, shall be sworn to act only in such particular case, and as to all other cases at the same term of that grand jury, the grand jury shall be formed in the usual manner provided by law.

Source: SDC 1939 & Supp 1960, §§ 34.1203, 34.1209; SDCL, §§ 23-29-8, 23-29-16; SL 1978, ch 178, § 46.

23A-5-5. (Rule 6(b)(2)) Dismissal of indictment because grand jurors not qualified.

A motion to dismiss an indictment may be based on objections to the array or on the lack of legal qualifications of an individual juror, if not previously determined upon challenge. An indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to § 23A-5-6 that five or more jurors, after deducting from the affirmative votes the number not legally qualified, concurred in finding the indictment.

Source: SL 1978, ch 178, § 47.

23A-5-6. (Rule 6(c)) Foreman and deputy foreman of grand jury--Powers and duties--Clerk of grand jury--Record of proceedings.

The court shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall sign all indictments. During the absence of the foreman, the deputy foreman shall act as foreman and shall have the same powers and duties as the foreman.

The grand jury must appoint one of its members as clerk, who must preserve minutes of its proceedings and of the evidence given before it. The clerk shall keep a record of the number of the jurors concurring in the finding of every indictment, but not the votes of the individual members, and shall file the record with the clerk of the court, but the record shall not be made public except on the order of the court.

Source: SDC 1939 & Supp 1960, §§ 34.1210, 34.1213, 34.1224, 34.1233; SL 1967, ch 144; SDCL, §§ 23-29-9, 23-29-13, 23-30-9, 23-31-6; SL 1978, ch 178, § 48.

23A-5-7. Oath of grand jurors.

The following oath shall be administered to the foreperson of the grand jury: Do you, as foreperson of the grand jury, swear or affirm that you will diligently inquire into and make indictments of all public offenses against the state about which you have or can obtain evidence and which were committed or are triable in this county; that you will keep confidential the deliberations, remarks and actions of the jury, the testimony of the witnesses, and the manner in which any member of the jury voted on any matter; that you will not act against any person because of malice, hatred or ill-will or fail to act on a charge because of fear, favor, affection, or anticipation of reward; and that in all of your indictments you will present only the truth to the best of your skill, knowledge and understanding, so help you God? The following oath shall be immediately administered to the other grand jurors: Having heard the oath taken by the foreperson, do you, and each of you, swear or affirm that you will act in accordance with the obligations of that oath in your role as a member of the grand jury, so help you God?

Source: SDC 1939 & Supp 1960, §§ 34.1210, 34.1211; SDCL §§ 23-29-10, 23-29-11; SL 1978, ch 178, § 49; SL 2007, ch 131, § 3.

23A-5-8. Charge to grand jury by court--Commencement of inquiries.

After the grand jury is impaneled and sworn, it must be charged by the court. In doing so, the court shall give the members such information as it may deem proper as to the nature of their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury. The grand jury must then retire to a private room and inquire into the offenses cognizable by it.

Source: SDC 1939 & Supp 1960, § 34.1212; SDCL, § 23-29-12; SL 1978, ch 178, § 50.

23A-5-9. General powers of grand jury--Access to prisons and records.

The grand jury has power, and it is its duty, to inquire into all public offenses committed or triable in its county, and to present them to the circuit court by indictment. A grand jury is entitled to free access at all reasonable times to public prisons, and to the examination, without charge, of all public records in its county.

Source: SDC 1939 & Supp 1960, §§ 34.1215, 34.1223; SDCL, §§ 23-30-1, 23-30-6; SL 1978, ch 178, § 45.

23A-5-10. Advice sought from court or prosecuting attorney.

The grand jury may at all reasonable times ask the advice of the court or of the prosecuting attorney.

Source: SDC 1939 & Supp 1960, § 34.1222; SDCL, § 23-30-7; SL 1972, ch 147, § 1; SL 1978, ch 178, § 51.

23A-5-11. (Rule 6(d)) Appearance by prosecuting attorneys before grand jury--Presence of other persons--Counsel advising witnesses.

Prosecuting attorneys may at all times appear before the grand jury for the purpose of giving information or advice or interrogating witnesses relative to any matter cognizable by it. Prosecuting attorneys, the witness under examination and his counsel, interpreters if needed, the victim under examination and the victim or witness assistant and, for the purpose of taking the evidence if authorized by the grand jury, a stenographer or operator of a recording device may be present when the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting. The role of counsel appearing with a witness shall be limited to advising the witness. The prosecuting attorney may not be present during the consideration of any charge against himself, except that the grand jury may summon him as a witness.

Source: SDC 1939 & Supp 1960, § 34.1222; SDCL, § 23-30-7; SL 1972, ch 147, § 1; SL 1978, ch 178, § 52; SL 1986, ch 193, § 2.

23A-5-11.1. Recording of testimony of witness before grand jury.

The testimony of any witness appearing before a grand jury in any case shall be recorded. Such testimony may be recorded by means of an electronic recording device.

Source: SL 1987, ch 173; SL 1998, ch 147, § 1.

23A-5-12. Testimony before grand jury by subject of investigation--Waiver of immunity.

The subject of a grand jury investigation may, at the discretion of the grand jury or prosecuting attorney, be given the opportunity to testify before the grand jury, provided he waives immunity orally on the record or in writing.

Source: SL 1978, ch 178, § 53.

23A-5-13. Notice of rights to subject appearing before grand jury.

Before testifying or providing other evidence at any proceeding before a grand jury impaneled before a circuit court, the subject of the grand jury investigation shall be given adequate and reasonable notice of:

(1)    His right to counsel as provided in § 23A-5-11;

(2)    His privilege against self-incrimination;

(3)    The fact that anything he says can and will be used against him in a court of law; and

(4)    The fact that if he cannot afford an attorney, an attorney will be appointed by the court for him.

Source: SL 1978, ch 178, § 60.

23A-5-14. Removal and replacement of attorney for witness appearing before grand jury.

The court shall have the power to remove a witness' attorney and order the witness to obtain new counsel, when it finds that the attorney has violated § 23A-5-11 or that such removal and replacement is necessary to ensure that the activities of a grand jury are not unduly delayed or impeded. Nothing in this section shall affect the power of the court to punish for contempt or impose other appropriate sanctions.

Source: SL 1978, ch 178, § 59.

23A-5-15. Evidence heard by grand jury--Order for production of evidence.

The rules of evidence shall apply to proceedings before the grand jury. A grand jury is not bound to hear evidence for a defendant, but it is its duty to weigh all the evidence submitted to it. When it has reason to believe that there is other evidence, it may order such evidence to be produced, and for that purpose the prosecuting attorney may issue process for the witnesses.

Source: SDC 1939 & Supp 1960, § 34.1225; SDCL, § 23-30-12; SL 1978, ch 178, § 55.

23A-5-16. (Rule 6(e)) Restrictions on disclosure of grand jury proceedings--Immunity of jurors--Sealing of indictments.

Disclosure of matters occurring before a grand jury, other than its deliberations and the vote of any juror, may be made to prosecuting attorneys for use in the performance of their duties. Otherwise a juror, attorney, witness, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only if directed by the court preliminary to, or in connection with, a judicial proceeding or if permitted by the court at the request of a defendant upon a showing that grounds may exist for a motion to dismiss an indictment because of matters occurring before a grand jury. A grand juror cannot be questioned for anything that the grand juror may say or any vote that the grand juror may give in the grand jury proceedings relative to a matter legally pending before it, except for perjury of which the grand juror may have been guilty in making an accusation or giving testimony to his or her fellow jurors. No obligation of secrecy may be imposed upon any person except in accordance with this section. A court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail. In that event the clerk shall seal the indictment, and no person may disclose the finding of the indictment unless necessary for the issuance and execution of a warrant or summons.

Source: SDC 1939 & Supp 1960, §§ 34.1226, 34.1227; SDCL, §§ 23-30-13, 23-30-14, 23-30-16; SL 1972, ch 147, § 2; SL 1978, ch 178, § 54; SL 2005, ch 126, § 1.

23A-5-17. Disclosure by prosecuting attorney of evidence received by grand jury.

The prosecuting attorney may disclose evidence received before the grand jury or heard before the grand jury in the performance of his official duties.

Source: SL 1978, ch 178, § 54A.

23A-5-18. (Rule 6(f)) Quorum of grand jury--Votes required for indictment--Witnesses named on indictment--Dismissal of charge on failure to indict.

A quorum of six grand jurors must be present before any evidence or testimony may be received or any other business conducted. An indictment may be found only if there is probable cause to believe that an offense has been committed and that the defendant committed it. An indictment may be found only upon the concurrence of six or more jurors. The names of only those witnesses examined before the grand jury in relation to the particular indictment shall be listed on that indictment before it is filed with the court. An indictment shall be returned by the grand jury to a circuit judge in open court, or, if no circuit judge is available, filed with the clerk of courts, endorsed a true bill.

If six grand jurors do not concur in finding an indictment against a defendant who is in custody but who has not had a preliminary hearing, the complaint or information and the certified record of the proceedings before the committing magistrate transmitted to them shall be returned to the court, with an endorsement thereon, signed by the foreman, that the charge is dismissed. The dismissal of the charge does not prevent its being again submitted to a grand jury as often as a court may direct, but without such direction it cannot again be submitted.

Source: SDC 1939 & Supp 1960, §§ 34.1219, 34.1220, 34.1233, 34.1234; SDCL, §§ 23-31-3 to 23-31-8; SL 1978, ch 178, § 56; SL 2001, ch 120, § 1.

23A-5-19. Report filed when indictment not issued.

The grand jury, with the permission of the prosecuting attorney, may file a report as to any case in which an investigation has taken place and an indictment has not been issued. The court may excise any portion of the report that is filed in the interests of justice.

Source: SL 1978, ch 178, § 60A.

23A-5-20. (Rule 6(g)) Term of service of grand jury--Excuse and replacement of jurors.

A grand jury shall serve until discharged by the court which convened it, but no grand jury may serve more than eighteen months. The tenure and powers of a grand jury are not affected by the beginning or expiration of a term of court. At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the excused juror in the same manner as the original juror was impaneled.

Source: SDC 1939 & Supp 1960, § 34.1214; SDCL, § 23-29-14; SL 1978, ch 178, § 57.