19-19-806. Attacking and supporting the declarant.
When a hearsay statement--or a statement described in subdivision 19-19-801(d)(2)(C), (D), or (E)--has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 806); SDCL § 19-16-37; SL 2016, ch 239 (Supreme Court Rule 15-60), eff. Jan. 1, 2016.
19-19-806.1. Statement by child under age thirteen or child with developmental disability regarding sex crime, physical abuse, or neglect.
A statement made by a child under the age of thirteen, or by a child thirteen years of age or older who is developmentally disabled as defined in § 27B-1-18, describing any act of sexual contact or rape performed with or on the child by another, or describing any act of physical abuse or neglect of the child by another, or any act of physical abuse or neglect of another child observed by the child making the statement, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant or in any proceeding under chapters 26-7A, 26-8A, 26-8B, and 26-8C in the courts of this state if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness.
However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
No statement may be admitted under this section unless the proponent of the statement makes known the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.
Source: SL 1984, ch 155; SL 1985, ch 166; SL 1987, ch 157; SL 1992, ch 154, § 2; SL 2009, ch 107, § 1; SDCL § 19-16-38.
19-19-806.2. Statements alleging child abuse or neglect.
An out-of-court statement not otherwise admissible by statute or rule of evidence is admissible in evidence in any civil proceeding alleging child abuse or neglect or any proceeding for termination of parental rights if:
(1) The statement was made by a child under the age of thirteen years or by a child thirteen years of age or older who is developmentally disabled, as defined in § 27B-1-18;
(2) The statement alleges, explains, denies, or describes:
(a) Any act of sexual penetration or contact performed with or on the child;
(b) Any act of sexual penetration or contact with or on another child observed by the child making the statement;
(c) Any act of physical abuse or neglect of the child by another; or
(d) Any act of physical abuse or neglect of another child observed by the child making the statement;
(3) The court finds that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and
(4) The proponent of the statement notifies other parties of an intent to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence, to provide the parties with a fair opportunity to meet the statement.
For purposes of this section, an out-of-court statement includes a video, audio, or other recorded statement.
Source: SL 1992, ch 154, § 1; SL 2011, ch 110, § 1; SDCL § 19-16-39.