| South Dakota |
| Lower Age: | 10 |
| Upper Age: | 17 |
| Discretionary Waiver | S.D. Cod. Laws Sec. 26-11-4 |
| Whenever a child is accused of a felony, the circuit court may "permit such child to be proceeded against in accordance with the laws...governing the commission of crimes," following a hearing to determine whether failure to do so would be "contrary to the best interests of the child and of the public." (Note—Since South Dakota has a one-tier trial court system, proceedings against both adults and children take place in circuit court, with children petitioned as delinquents treated on the juvenile side and those charged as adults on the adult side. Acordingly, although the decision to allow a child to be prosecuted as an adult is designated a "transfer," no actual transfer out of circuit court occurs.) The law specifies various factors that "may" be considered in making this determination, among which is "prosecutive merit"; but the State is not required to show "probable cause" to get a transfer. At the hearing, the court may not take into account any written report or other document relating to the child unless the author appears and is subject to cross-examination. |
| Offense Category | Minimum Age | Offense Detail |
| Certain Felonies | None specified | Any felony. |
| Statutory Exclusion | S.D. Cod. Laws Sec. 26-11-3.1 |
| A child of at least 16 who is charged with a class A or B, class 1 or 2 felony "shall be tried in circuit court as an adult." (Note—South Dakota has a one-tier trial court system, under which the cases of both children and adults are handled in circuit court; see Discretionary Waiver.) However, such a child may request a hearing "to determine if it is in the best interest of the public that the child be tried in circuit court as an adult"; see Reverse Waiver. |
| Offense Category | Minimum Age | Offense Detail |
| Certain Felonies | 16 | Class A or B, Class 1 or 2 felonies. |
| Reverse Waiver | S.D. Cod. Laws Sec. 26-11-3.1 |
| A child who is at least 16 and is accused of a class A or B, class 1 or 2 felony—and thus is subject to trial in circuit court as an adult (see Statutory Exclusion)—may request a hearing "to determine if it is in the best interest of the public that the child be tried in circuit court as an adult." (While the law designates this a "transfer" hearing, in fact South Dakota has a one-tier trial court system, with the cases of both adults and children handled in circuit court; accordingly, the issue is not whether to move the child's case out of circuit court, but rather how to treat it there.) The hearing resembles a hearing to determine whether the court should exercise its discretion to allow adult prosecution of a child accused of a felony (see Discretionary Waiver), except that (1) only the public interest is at issue, not the interests of the public and the child, and (2) there is a rebuttable presumption that the public would be better served by trying the child as an adult. |
| Once an Adult, Always | S.D. Cod. Laws Sec. 26-11-4 |
| If the circuit court permits a child to be prosecuted as an adult on the basis of a finding that doing so "is in the best interest of the child and of the public," and the child is thereafter convicted of the offense, "the finding is definitive, during the balance of the child's minority, as to the subsequent commission of any crime." |