South Dakota Supreme Court Broadens ‘Marsy’s Law’ in Dispute Over Victim’s Diary

Can criminal defendants subpoena a crime victim’s diary to support their defense? The South Dakota Supreme Court recently said no, a decision that illustrates the continued advancement of victims’ rights in criminal proceedings.

In 2016, South Dakota voters passed a version of “Marsy’s Law,” a state constitutional amendment providing crime victims with various rights similar to those of defendants in criminal proceedings. In addition to providing crime victims the right to be treated with fairness, dignity, and respect, the amendment gave victims the right to attend and participate in critical proceedings. It also gave victims standing to enforce their rights in court, including appellate court.

In South Dakota v. Waldner, the South Dakota high court applied the amendment — and demonstrated procedurally that victims can enforce their rights and substantively that their constitutional rights are increasingly important. 

The case involved two defendants charged with sex crimes against a minor. Investigators obtained a journal belonging to the victim that detailed the alleged events, and, after receiving the journal in discovery, the defendants sought the victim’s other journals. The trial court denied the victim’s motion to quash the defendants’ subpoena, and the victim appealed the trial court’s decision.

Reviewing that decision, the South Dakota Supreme Court first held that the victim had standing to sue, as the constitutional amendment said victims could “assert and seek enforcement” of their rights “in any trial or appellate court . . . as a matter of right.” While this right was not self-executing, the existing appellate procedures in South Dakota provided for an appeal from “any final order affecting a substantial right.” The trial court’s order directing the victim to turn over her journals was a “final order,” despite the fact that criminal case proceedings were ongoing, the South Dakota Supreme Court said, because the order “left nothing to be determined” in regard to the motion to quash the subpoena. The nature of the victim’s “constitutional right to privacy is such that it cannot be effectively asserted or enforced after a judgment,” the court wrote.

Addressing the merits of the victim’s appeal, the court rejected the defendants’ argument that the victim waived her right to privacy by turning over the other journals. Nothing in the record suggested the victim knew when she provided her journals to law enforcement that she had a constitutional right to privacy or that she was waiving that right, the court said.

The court then turned to the victim’s argument that her privacy rights under Marsy’s Law were absolute because the constitutional amendment did not contain any exceptions or limitations to the right of privacy. The court rejected this argument, instead concluding the victim’s rights had to be balanced against the due process rights of the defendants. The court explained “that although Marsy’s Law further commands ‘that victims’ rights and interests are protected in a manner no less vigorous than the protections afforded to criminal defendants,’ it does not say that a victim’s rights trump the equally important constitutional rights of criminal defendants.”

The South Dakota Supreme Court looked to the U.S. Supreme Court’s decision in Nixon v. United States for guidance on how to balance competing concerns. In rejecting President Richard Nixon’s claim to absolute privilege protecting tape recordings and documents relating to his conversations with advisors, Nixon held that the “fundamental demands of due process of law” had to be balanced against privacy concerns. Nixon specified three factors that support the validity of a subpoena: relevancy, admissibility, and specificity with regard to the information requested.

To determine the validity of the defendants’ subpoena, the state supreme court said, the trial court should have applied the three Nixon factors. The trial court failed to consider admissibility and specificity, offering only a cursory review of the defendants’ assertions of relevancy without addressing the legal parameters of the factors established in binding precedent. The defendants argued the information in the journals was relevant because it might contain evidence related to the victim’s mental health, ability to recall events, and credibility as a witness. The court rejected this argument, explaining that a mere possibility the information sought is relevant is insufficient. Instead, there would need to be a factual predicate or showing that the information is reasonably likely to contain relevant and admissible evidence.

The subpoena also failed the specificity requirement, the high court said, by requesting “all” documents and using “overbroad language” that did little to narrow its scope. The result, according to the court, was that the subpoena could likely require “production of completely irrelevant materials.” Accordingly, the Court reversed the trial court’s denial of the victim’s motion to quash and remanded for further proceedings.

Victims’ rights advocates have hailed this decision as an important victory for crime victims. It demonstrates how victims can use appellate procedures to enforce their rights and serves as a reminder that victims’ interests must be weighed in the balance as criminal proceedings move forward.

South Dakota’s decision is in line with other states, who have likewise recognized the procedural and substantive rights of crime victims seeking to use Marsy’s Law rights to resist criminal defendants’ discovery attempts. For example, in 2020, the California Supreme Court remanded a matter to the trial court, instructing it to vacate its order and reconsider a victim’s motion to quash. It directed the trial court to apply the relevant seven-factor balancing test, emphasizing the need for special inquiries related to the victim’s privacy rights under Marsy’s Law.

The same year, the Ohio Supreme Court outlined procedures allowing crime victims to take an immediate appeal from adverse discovery orders like the one at issue here—noting that such orders exemplify the “proverbial bell that cannot be unrung.” And in 2022, the Wisconsin Supreme Court recognized that Marsy’s Law reflects growing concerns for victims’ rights, which influenced its decision to overrule precedent that had permitted criminal defendants limited access to a victim’s private and privileged health records. These decisions highlight a broader trend toward recognizing crime victims’ rights in what has traditionally been a two-party (State v. Defendant) process. Criminal law practitioners should consider victims’ third-party interests as they work to protect the interests of their own clients.

Paul Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah. He serves as an unpaid policy advisor to Marsy’s Law. Haley Green is a student at the college of law.

Suggested Citation: Paul Cassell & Haley Green, South Dakota Supreme Court Broadens ‘Marsy’s Law’ in Dispute Over Victim’s Diary, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 13, 2025), https://statecourtreport.org/our-work/analysis-opinion/south-dakota-supreme-court-broadens-marsys-law-dispute-over-victims-diary