South Dakota

Jury nullification, which occurs when a jury votes to acquit a defendant even though the evidence appears to satisfy the elements of the alleged crime, has long been a quiet and sometimes divisive aspect of American criminal jurisprudence. In South Dakota, as in most states, courts instruct jurors to apply the law as presented by the judge, dissuading any suggestion that jurors can or should disregard statutes or penalties. However, the structure of criminal trials means an acquittal cannot be overturned or appealed, leaving open the possibility that jurors may exercise this power if moved by conscience or community norms. This article explores how South Dakota’s laws, court practices, historical context, and public attitudes reflect the tension between the official insistence on legal uniformity and the implicit power of a jury to nullify.

Historical Overview and Territorial Foundations

South Dakota’s early legal history goes back to its days as part of the Dakota Territory in the late 19th century, when sparsely populated settlements managed justice with limited formal structures. During these territorial times, local jurors might decline to convict neighbors if they felt a law was overly harsh or out of sync with frontier realities. Although the term “jury nullification” did not circulate widely then, its essence manifested whenever community moral standards overshadowed formal legal codes. With statehood in 1889, South Dakota gradually adopted a more standardized judicial system, emphasizing that jurors must apply laws as written. Still, the bedrock principle that an acquittal is final guaranteed that the underlying capacity for jurors to nullify would remain, even if rarely acknowledged.

Constitutional and Statutory Framework

The South Dakota Constitution ensures a defendant’s right to a trial by jury, akin to the federal and most other state constitutions. Yet, it provides no explicit mention of jury nullification. Its provisions, together with the South Dakota Codified Laws, frame criminal procedure around a straightforward assumption: jurors serve as fact-finders who determine guilt or innocence based on the evidence presented and the elements defined by the state’s criminal statutes.

There is no language endorsing the idea that a jury may lawfully disregard a statute or penal scheme if it finds that law unjust. The expectation is that laws, once enacted, bind everyone in the courtroom—judges, attorneys, and jurors alike. Nevertheless, because no legal mechanism exists to appeal a not-guilty verdict, the theoretical possibility of nullification remains intact, though unspoken.

Judicial Instructions and Court Practices

In a South Dakota criminal trial, judges read jury instructions drawn from the state’s standard guidance, which clarifies the specific elements of the alleged offense, the prosecution’s burden of proof, and the rules for evaluating evidence. The instructions reiterate that jurors must base their decision solely on the law as provided, and if defense counsel crosses into advocating for a moral rejection of the law, the prosecution typically objects. Judges sustain such objections to ensure that the jury focuses on whether the prosecution has proven the defendant’s actions beyond a reasonable doubt under the law, rather than on whether that law is “good” or “bad.”

Defense attorneys aware of these limitations occasionally invoke a more nuanced strategy. They might underscore the severity of a potential sentence, question the proportionality of the charge, or highlight the defendant’s personal circumstances, implicitly inviting jurors to imagine whether convicting truly serves justice. While not an overt appeal to nullify, this method can plant the idea that following the strict letter of the law might lead to an unjust outcome—leaving sympathetic jurors open to the possibility of acquittal on grounds that transcend legal definitions.

Appellate Rulings and Judicial Commentary

South Dakota’s appellate courts, including the state Supreme Court, have long upheld the principle that jury instructions may not include references to nullification. Citing the mainstream American position, these courts argue that allowing jurors to openly disregard statutes undermines the uniform rule of law. Trial courts, therefore, have a responsibility to prevent defense counsel from advising jurors that they can “ignore” or “nullify” a statute based on moral disagreements.

Still, no court ruling in South Dakota has tried to extinguish the finality of an acquittal. Should a jury, for reasons beyond the formal reading of the law, decide on a “not guilty” verdict, neither the prosecution nor the judiciary can override that outcome. This stance matches the broader American approach: the law forbids instructing jurors to disregard statutes, but it cannot forcibly prevent or reverse a moral-based acquittal once it happens.

Local Dynamics and Community Influence

South Dakota’s demographics range from agriculture-focused small towns and reservations to growing urban centers in the eastern part of the state. Community values vary accordingly. In rural areas, residents often possess close-knit relationships, and a shared ethic of self-reliance or skepticism toward certain regulations might color how they see criminal prosecutions—especially if they appear disproportionate or at odds with local sensibilities. In more urban areas, debates over law enforcement or social issues could influence how jurors evaluate the fairness of a particular prosecution.

Although no judge would ever tell a jury to weigh such considerations above the law, these local or cultural perspectives can affect how jurors approach deliberations, especially in borderline cases. Rumors of “nullification” sometimes follow unexpected acquittals, but jurors typically cite “lack of evidence” or “doubts about the state’s case” to justify their decision rather than openly confessing to ignoring the law.

Defense Strategies and Grassroots Initiatives

Because a direct nullification plea is nearly certain to be disallowed in South Dakota courts, defense attorneys who suspect a law might be unpopular or a sentence overly severe tread cautiously. They concentrate on highlighting mitigating factors, raising questions about the justice of the prosecution’s approach, or pointing out how the outcome of a guilty verdict might clash with community standards. These arguments steer jurors to think more broadly about “justice,” but do not explicitly request them to break with the law.

Occasional grassroots campaigns, sometimes drawing on libertarian ideals or social justice goals, distribute materials and run online forums discussing how jurors might check governmental power. While these efforts remind the public of the jury’s theoretically broad powers, court officials sometimes react with caution, concerned about possible attempts to influence prospective jurors outside legally sanctioned channels.

High-Profile Cases and the Public Eye

When a prominent trial arises in South Dakota—perhaps involving contested land rights, drug enforcement, or self-defense claims—media commentary may raise the specter of nullification. Observers wonder if a jury might acquit, not because the evidence is lacking, but because the law or punishment seems unreasonable. Rarely do jurors openly state that they “nullified,” though. Verdict rationales remain private, allowing jurors to couch their moral judgments in claims of “insufficient evidence” or lingering doubts about the case.

This secrecy fuels the persistent undercurrent of speculation in certain controversial outcomes, while official doctrine remains unwavering that jurors must abide by the letter of the law.

Likely Trajectory and Reforms

South Dakota shows no sign of deviating from the national stance on nullification. Neither the legislature nor the courts appear poised to legitimize or reference it openly in trial procedures. Instead, the state continues to update criminal laws and sentencing guidelines in response to shifting public views, possibly reducing scenarios where a conscientious jury might be tempted to acquit in defiance of the law.

Nonetheless, as long as an acquittal is unchallengeable, the possibility of nullification remains embedded in the jury system. If certain statutes or penalties appear excessively punitive to a portion of the population, some jury panels may quietly opt to acquit on moral grounds, despite what the law dictates. It is likely that the existing balance—official condemnation of explicit nullification arguments alongside acceptance of the finality of “not guilty” verdicts—will continue in South Dakota for the foreseeable future.