2024 S.D. 67
S.D.2024Background
- Mark Waldner and Michael Waldner, Jr. (the Waldners) were indicted in South Dakota for sexual offenses against E.H., a minor, based on alleged incidents from January 2019 to December 2020.
- During the investigation, law enforcement obtained and disclosed journal entries written by E.H. describing the alleged abuse.
- The Waldners later sought all of E.H.'s diaries and journals over a broad timeframe, arguing these could be used for impeachment and relevance to E.H.'s credibility and mental health.
- E.H. moved to quash the subpoena, asserting her constitutional right to privacy under Marsy’s Law (S.D. Const. art. VI, § 29), arguing the subpoena was overbroad and did not meet legal standards.
- The trial court denied the motion to quash and ordered E.H. to produce all her journals for in-camera inspection, but E.H. appealed, joined by the State.
- The South Dakota Supreme Court reversed, finding the subpoena failed the required specificity and relevance standards for compelled discovery against a victim under Marsy’s Law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Appellate jurisdiction for victims under Marsy’s Law | Marsy’s Law grants victims an enforceable right to seek appellate review in all courts | Only the State or defendant may appeal; victim lacks statutory party status | Court has jurisdiction under SDCL 15-26A-3(4) as a special proceeding |
| 2. Waiver of victim's privacy by prior disclosure | Disclosure of one journal to law enforcement waives right to privacy over other journals | Disclosure was limited and did not constitute knowing, intelligent waiver of all privacy rights | E.H. did not knowingly and intelligently waive broader privacy rights |
| 3. Is Marsy’s Law privacy right absolute? | Marsy’s Law gives victims unconditional right to refuse discovery | Defendant’s due process and right to obtain evidence overrides; privacy right not absolute | Marsy’s Law privacy right is not absolute; must be balanced against defendant’s constitutional rights |
| 4. Was the subpoena properly enforceable under Nixon? | Subpoena was justified for impeachment and credibility purposes | Subpoena was overbroad, non-specific, and did not meet Nixon’s three-prong test | Subpoena failed Nixon’s specificity and relevance requirements; motion to quash should have been granted |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (U.S. 1974) (establishing three-prong test—relevancy, admissibility, specificity—for enforcing subpoena duces tecum in criminal proceedings)
- State v. Karlen, 589 N.W.2d 594 (S.D. 1999) (discusses waiver of privilege through disclosure in the context of confidential records)
- Milstead v. Johnson, 883 N.W.2d 725 (S.D. 2016) (adopting the Nixon three-prong test for subpoenas duces tecum served on third parties in South Dakota)
- In re Essential Witness, 908 N.W.2d 160 (S.D. 2018) (clarified appellate reviewability of final orders in special proceedings ancillary to criminal cases)