#27374-a-SLZ 

2015 S.D. 100 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellant, 

 

v. 

ALVIN PLASTOW, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

 MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE ROBIN J. HOUWMAN 

Judge 

* * * * 

MARTY J. JACKLEY 

Attorney General 

JARED C. TIDEMANN 

PAUL S. SWEDLUND 

Assistant Attorneys General 

Pierre, South Dakota 

 and 

AARON F. MCGOWAN 

Minnehaha County State’s Attorney 

SARA E. SHOW 

Minnehaha County Deputy State’s Attorney 

Sioux Falls, South Dakota Attorneys for plaintiff 

 and appellant. 

LYNDSAY E. DEMATTEO 

Minnehaha County Public Advocate’s Office 

Sioux Falls, South Dakota Attorneys for defendant 

 and appellee. 

* * * * 

 ARGUED ON 

 OCTOBER 6, 2015 

 OPINION FILED 12/23/15
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ZINTER, Justice

[¶1.] The State, by way of intermediate appeal, challenges the circuit court’s 

suppression of Alvin Plastow’s admission that he raped a three-year old girl. The 

circuit court suppressed in accordance with our cases holding that a conviction 

cannot stand on an admission alone: the admission must be corroborated with 

independent evidence establishing the corpus delicti of the offense.

1 Many state 

and federal courts have adopted a more flexible rule. Instead of requiring evidence 

of the corpus delicti, those courts allow evidence of the admission’s trustworthiness 

to corroborate the admission and establish guilt. For the reasons stated in this 

opinion, we adopt the trustworthiness standard as an alternative method of 

corroborating admissions. However, under Supreme Court precedent, we apply this 

change prospectively. We therefore affirm.

Facts and Procedural History

[¶2.] Alvin Plastow spent fifteen years in prison after pleading guilty to 

raping a five-year-old African American female (N.H.). After his release from 

prison, Plastow lived with his girlfriend, Elizabeth Paige (mother of N.H.), Teerra 

Raglan, and Raglan’s three-year-old African American daughter (S.G.). S.G.’s 

father, Michael Grace, frequently visited the home. 

[¶3.] At some point, Grace observed Plastow stroking S.G.’s face while S.G.

was sitting on Plastow’s lap. Aware of Plastow’s criminal history, Grace became 

suspicious and later telephoned Plastow, asking him if he had ever inappropriately 

_________________________________

1. The corroboration requirement for admissions applies with equal force to 

confessions. See State v. Thompson, 1997 S.D. 15, ¶ 35, 560 N.W.2d 535, 543. 
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touched S.G. Plastow admitted to putting his hand down S.G.’s pants, but claimed 

he did not penetrate her. After the telephone call, Grace asked S.G. where Plastow 

touched her, she pointed to her genitals, buttocks, and face. 

[¶4.] Grace reported these occurrences to the police. During a subsequent

investigation, in a police officer’s presence, Grace asked S.G. where Plastow had 

touched her. S.G. pointed to her genitals. At another point, S.G. approached the 

police officer and grabbed her genitalia, saying: “He touched me down here.” 

[¶5.] A detective conducted a follow-up interview. During the interview, 

Plastow admitted that he was attracted to children, especially black females. He 

also admitted that after getting out of prison, he struggled with thoughts of 

children. Plastow specifically admitted raping S.G. on two occasions, once when he 

was helping her in the bathroom and once in a bedroom. Regarding the bathroom 

incident, Plastow indicated that he attained an erection while placing his index 

finger in between S.G.’s vaginal lips. He also indicated that he masturbated while 

thinking of this incident. Regarding the bedroom incident, Plastow indicated that 

he ran his finger in between S.G.’s vaginal lips, but denied “reaching S.G.’s hole.” 

Plastow also admitted to taking a picture of S.G.’s partially naked body with his cell 

phone during the bedroom incident. Plastow saved the picture and admitted to 

masturbating while viewing it. Plastow indicated that the picture would be on his 

phone. 

[¶6.] Grace had previously given Plastow’s phone to the police. They

searched the phone and found a picture of S.G. in “Dora the Explorer” pajamas with 

pink polka dots. Another contemporaneously taken picture was of a prepubescent 
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female’s partially naked body from the waist to mid-thigh with her pants pulled 

down. The visible portions of the pants resembled S.G.’s pink polka dot pajamas. 

[¶7.] S.G. gave a statement about these events to a forensic interviewer at 

Child’s Voice, a child advocacy center. S.G. confirmed the inappropriate touching; 

however, a corresponding physical examination could neither confirm nor refute

that a rape occurred. 

[¶8.] The State charged Plastow with two counts of first-degree rape and 

two counts of possession of child pornography. Plastow filed a pre-trial motion to 

sever the rape and pornography counts. He also moved to suppress his admissions, 

arguing the State could not present independent corroborating evidence showing 

the corpus delicti of a rape.

[¶9.] At an evidentiary hearing on the motion to suppress, the State 

indicated that S.G. would not testify; no representative from Child’s Voice would 

testify; and Grace would not testify. The State indicated that other than the 

photograph, it had no independent evidence corroborating Plastow’s admissions. 

The circuit court severed the charges and suppressed Plastow’s admissions. The 

court reasoned that the photograph alone did not establish the corpus delicti of 

rape. The State appeals raising two issues: 

(1) Whether the circuit court relied on an overly strict 

application of the corpus delicti rule in suppressing 

Plastow’s admissions. 

(2) Whether the corpus delicti rule should be reformed or 

abandoned in South Dakota. 
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Decision

[¶10.] The circuit court ruled that State v. Thompson controlled and that 

under Thompson, suppression was required because the State could not show the 

corpus delicti of rape independent of Plastow’s admissions. 1997 S.D. 15, ¶ 36, 560 

N.W. 2d. 535, 543. The State argues that the circuit court misapplied the corpus 

delicti rule because, in conclusion of law 7, it concluded: “The State has not provided 

and will not present at trial independent evidence, outside of Plastow’s admissions, 

for each element of the crime of rape.” (Emphasis added.) The State asserts that it 

need not show independent evidence of each element of the crime to admit an 

admission. We agree. 

[¶11.] The corpus delicti rule is generally applied in one of two situations: (1) 

challenges to the admissibility of an admission, or (2) challenges to the sufficiency of 

the evidence. Compare State v. Best, 89 S.D. 227, 235, 232 N.W.2d 447, 452 (1975) 

(involving a challenge to the admission of a defendant’s statement before proving 

the corpus delicti), and State v. Lowther, 434 N.W.2d 747, 754 (S.D. 1989) (involving 

a claim that the state failed to set forth sufficient corroborative evidence before it 

introduced a defendant’s admissions), with State v. Bates, 76 S.D. 23, 28, 71 N.W.2d 

641, 644 (1955) (involving the claim that there was insufficient evidence to justify 

submission of the case to the jury), State v. Garza, 337 N.W.2d 823, 824 (S.D. 1983) 

(involving the claim that there was insufficient evidence of the corpus delicti to 

corroborate appellant’s confession and sustain the conviction), and Thompson, 1997 

S.D. 15, ¶ 34, 560 N.W.2d at 542 (stating the “question ultimately is a challenge to 

the sufficiency of the evidence.”). 
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[¶12.] This is an admissibility case, and in admissibility cases, the 

admissibility of an extrajudicial admission is conditioned on its corroboration by 

evidence independent of the defendant’s extrajudicial statements. Best, 89 S.D. at 

235, 232 N.W.2d at 452. The corroborative evidence need only show the corpus 

delicti; i.e., evidence establishing “(1) the fact of an injury or loss, and (2) the fact of 

someone’s criminal responsibility for the injury or loss.” Id. Therefore, under our 

corpus delicti rule, the admissibility of Plastow’s statements was not conditioned on 

the State’s production of independent evidence of each element of the offense 

charged against Plastow. The State need only have shown that S.G. was raped by 

someone. The circuit court’s conclusion of law 7 incorrectly stated the rule.2 

[¶13.] The State further argues that had the circuit court applied the correct 

rule, it would have admitted Plastow’s admissions. The State contends that the 

independent evidence in this case established a reasonable probability that S.G. 

was raped. Plastow, however, argues that the State failed to identify sufficient 

independent evidence that established the corpus delicti of rape. Plastow contends 

that standing alone, the picture appearing to be S.G.’s genitalia does not raise a 

reasonable inference that she was raped.

[¶14.] Best sets forth the quantum of evidence required to admit extrajudicial

statements. 89 S.D. at 236, 232 N.W.2d at 453.

_________________________________

2. The circuit court’s conclusion of law 7 was based on Thompson, 1997 S.D. 15, 

560 N.W.2d 535. As previously indicated, Thompson was a sufficiency of the 

evidence case. Id. ¶ 34, 560 N.W.2d at 542. Because it was a sufficiency of 

the evidence case, Thompson was not only concerned with the corpus delicti, 

but also the sufficiency of the evidence to support all elements of the offense. 

Id. ¶¶ 36-37, 560 N.W.2d at 543.
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A prima facie showing of the corpus delicti of the crime charged 

must be made before a defendant’s extrajudicial statements, 

admissions or confessions may be received in evidence (citations 

omitted). To establish the corpus delicti . . . , it [is] only 

necessary for the [State] to show a reasonable probability the 

criminal act of another caused [the crime charged]. The corpus 

delicti may be established by circumstantial evidence, and by 

the reasonable inferences to be drawn from such evidence 

(citations omitted). While slight evidence is sufficient to 

establish the corpus delicti, it must be proved entirely 

independent of and without considering the defendant’s 

extrajudicial statements (citations omitted). 

Id. (quoting People v. Cantrell, 504 P.2d 1256, 1260 (Cal. 1973)).

3 In this case, the 

State indicated that Grace, S.G., and the forensic interviewer would not testify. The

State further indicated at the motions hearing that the only evidence it had to 

corroborate the crime of rape was the photograph that appeared to be S.G., naked

from the waist down. We agree with the circuit court that the photograph, standing

alone, did not create a reasonable inference that S.G. was raped.4 Therefore, under 

our current caselaw, the circuit court properly suppressed Plastow’s admissions.

_________________________________

3. In sufficiency of the evidence cases, the admission may be considered with 

the independent evidence. There must be “such extrinsic corroborating or 

supplemental circumstances as will, when taken in connection with the 

admissions, establish beyond a reasonable doubt that the crime was in fact 

committed by someone.” Bates, 76 S.D. 23, 28, 232 N.W. 2d 641, 644 (1955). 

4. The State relies on a number of decisions from other states applying their 

formulations of the corpus delicti rule. We do not find those cases supportive 

because in each case, the prosecution introduced admissible evidence that 

generated a reasonable inference that the crime had occurred. See People v. 

Stevens, 544 N.E.2d 1208, 1218 (Ill. 1989) (inferring that a rape occurred 

from a statement by the victim that she had been raped along with evidence 

of her torn underwear); People v. Bounds, 662 N.E.2d 1168, 1185 (Ill. 1995)

(concluding that sexual assault could reasonably be inferred from evidence of 

a broom handle with feces found near a victim’s half naked body together 

with evidence that victim’s anus was dilated); People v. Lara, 983 N.E.2d 959, 

974 (Ill. 2013) (using victim testimony and victim’s hearsay report to 

(continued . . .)
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[¶15.] This case highlights the injustice that may arise under our corpus 

delicti rule. S.G. was only three and one-half years old and unable to testify, she 

suffered no tangible physical injury, the corroborating witnesses were apparently

unavailable at the time of trial, and Plastow did not challenge the voluntariness or

truthfulness of his admissions. The State urges us to follow the lead of the Supreme 

Court and many other states that have adopted a more flexible rule in the interest 

of contemporary justice: a rule that focuses on the trustworthiness of the admission. 

[¶16.] In 1954, the Supreme Court rejected the traditional corpus delicti rule 

in favor of a “trustworthiness” standard to determine whether admissions were 

admissible and sufficient to support a conviction in criminal cases. See Opper v. 

United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954); Smith v. United 

States, 348 U.S. 147, 75 S. Ct. 194, 99 L. Ed. 192 (1954). Opper not only considered 

_________________________________

(. . . continued)

establish the corpus delicti of sexual assault); People v. Robbins, 755 P.2d 355 

(Cal. 1988) (inferring the crime of lewd conduct with a child based on 

evidence of defendant’s other acts, defendant’s diagnosis as a pedophile, 

witness identification of defendant driving a motorcycle with victim on back, 

and the absence of clothes on the victim’s dead body); People v. Jones, 949 

P.2d 890, 903 (Cal. 1998) (inferring oral copulation from: bruises on victims 

thighs, knees, legs, and perineal area; injuries on victim’s hands; victim was 

not wearing underpants, a brassiere, or shoes; results from the sexual assault 

kit revealing the presence of semen in victim’s vagina, on her external 

genitalia, and in her rectal area; and expert testimony that negative test 

results were not inconsistent with oral copulation because the mouth’s 

natural rinsing processes eliminates semen.); In re W.B. II, 2009 WL 961500 

at *11 (Ohio Ct. App.) (inferring rape from child victim testimony). State v. 

Shannon, 2004 WL 637848 at *7 (Ohio Ct. App.) (inferring unlawful sexual 

contact from victim’s testimony); State v. Clark, 666 N.E.2d 308, 311 (Ohio 

Ct. App. 1995) (inferring rape from testimony of four month old’s mother that 

she heard infant screaming before she entered the home to find infant-victim 

face down on defendant’s lap while defendant had an erect penis and 

defendant apologized to mother and claimed he was seeking help). 
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“the extent of the corroboration of admissions necessary as a matter of law for a 

judgment of conviction,” it also discussed the different types of evidence courts allow 

to corroborate an admission. 348 U.S. at 92, 75 S. Ct. at 164. The Court 

acknowledged that some jurisdictions required corroborative evidence to touch the 

corpus delicti of the crime charged, while other courts found that “proof of any 

corroborating circumstances is adequate which goes to fortify the truth of the 

confession or tends to prove facts embraced in the confession.” Id. at 91-92. The 

Court rejected the former corroboration rule; the rule currently applied in South 

Dakota. Id. at 93. The Court held that the better rule is “to require the 

Government to introduce substantial independent evidence which would tend to 

establish the trustworthiness of the statement.” Id. The independent evidence is 

sufficient if it “supports the essential facts admitted sufficiently to justify a jury 

inference of their truth.” Id. The Court found this is the better rule because the 

independent evidence serves two purposes: “It tends to make the admission reliable, 

thus corroborating it while also establishing independently the other necessary 

elements of the offense.” Id. (citing Smith, 348 U.S. 147, 75 S. Ct. 194). In a 

companion case, the Court elaborated on the application of the trustworthiness rule:

“The quantum of corroboration necessary to substantiate the existence of the crime 

charged” is that “[a]ll elements of the offense must be established by independent 

evidence or corroborated admissions, but one available mode of corroboration is for 

the independent evidence to bolster the confession itself and thereby prove the 

offense ‘through’ the statements of the accused.” Smith, 348 U.S. at 156, 75 S. Ct. 
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at 199. The federal courts of appeal have subsequently applied the Opper-Smith

trustworthiness rule in cases involving admissibility.5

[¶17.] We agree with the many courts that have concluded the corpus delicti 

rule is outdated and may serve to obstruct justice in certain circumstances. “The 

corpus delicti rule was first developed more than three hundred years ago in 

England to prevent the conviction of those who confessed to non-existent crimes as a 

result of coercion or mental illness.” State v. Goulding, 2011 S.D. 25, ¶ 13, 799 

N.W.2d 412, 417 (quoting David A. Moran, In Defense of the Corpus Delicti Rule, 64 

Ohio St. L.J. 817, 817 (2003)). Since that time, newly recognized constitutional

rights and rules of evidence have provided protections that address the concerns

that gave rise to the rule. Thus, many courts and scholars now agree: the corpus 

delicti rule may have outlived its usefulness.6 Although the concerns underlying 

_________________________________

5. See United States v. Miller, 874 F.2d 1255, 1279-80 (9th Cir. 1989) (applying 

Opper and finding “sufficient evidence exists here to support the district 

court’s admission of the evidence and to support the denial of the motion for 

acquittal.”); United States v. Davanzo, 699 F.2d 1097, 1100-01 (11th Cir. 

1983) (“‘It is well settled, however, that there need not be corroborative 

evidence proving every element of the offense before an admission can be 

received in evidence.’ All that is necessary is for ‘the government to introduce 

substantial independent evidence which would tend to establish the 

trustworthiness of the statement.’”) (quoting Opper, 348 U.S. at 93, 75 S. Ct. 

at 164); United States v. Manamela, 463 F. App’x 127, 132 (3d Cir. 2012) 

(“Under the corpus delicti rule, before the government can introduce a 

defendant’s confession, it must introduce ‘substantial independent evidence 

which would tend to establish the trustworthiness of the statement.’”)

(quoting Opper, 348 U.S. at 93, 75 S. Ct. at 158)). 

6. See Jacinth v. State, 593 P.2d 263 (Alaska 1979); People v. LaRosa, 293 P.3d 

567 (Colo. 2013); State v. Hafford, 746 A.2d 150 (Conn. 2000); Harrison v. 

United States, 281 A.2d 222 (D.C. 1971); State v. Yoshida, 354 P.2d 986 (Haw. 

1960); State v. McGill, 328 P.3d 554 (Ct. App. Kan. 2014); State v. Heiges, 806 

N.W.2d 1 (Minn. 2011); State v. True, 316 N.W.2d 623 (Neb. 1982); State v. 

(continued . . .)
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the rule remain, the limitations imposed by the traditional rule are no longer 

necessary to achieve the valid purposes. 1 George E. Dix et al., McCormick On 

Evidence § 145 (Kenneth S. Broun ed., 7th ed. 2013) (“Widespread agreement 

remains that the need to assure accuracy of convictions remains at least a major 

basis for the requirement.”).

[¶18.] For example, current Fifth and Sixth Amendment jurisprudence

provides some protection against coerced and false confessions. Police officers must 

now read suspects their rights before interrogating them. Miranda v. Arizona, 384 

U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). If suspects request an 

attorney, the police must stop all questioning. Edwards v. Arizona, 451 U.S. 477, 

484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378 (1981). And, confessions are subject 

to extensive voluntariness inquiries. See Schneckloth v. Bustamonte, 412 U.S. 218, 

224, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). Therefore, in light of the 

_________________________________

(. . . continued)

Zysk, 465 A.2d 480 (N.H. 1983); State v. Reddish, 859 A.2d 1173 (N.J. 2004); 

State v. Weisser, 150 P.3d 1043 (Ct. App. N.M. 2006) (adopting a modified 

trustworthiness standard that requires corroboration demonstrating 

trustworthiness plus evidence of the harm; if there is no tangible injury, then 

the corroboration must link the defendant to the crime); State v. Parker, 337 

S.E.2d 487 (N.C. 1985) (adopting a modified version of the trustworthiness 

standard requiring strong corroboration of essential facts in the defendant’s 

confession when there is no independent evidence of injury); Stout v. State, 

693 P.2d 617 (Okla. Crim. App. 1984); State v. Osborne, 516 S.E.2d 201 (S.C. 

1999); State v. Bishop, 431 S.W.3d 22 (Tenn. 2014) (adopting a modified 

trustworthiness standard that requires corroboration demonstrating 

trustworthiness plus evidence of the harm; if there is no tangible injury, then 

the corroboration must link the defendant to the crime); State v. Mauchley, 67 

P.3d 477 (Utah 2003); Holt v. State, 117 N.W.2d 626 (Wis. 1962); Simmers v. 

State, 943 P.2d 1189 (Wyo. 1997); See Thomas A. Mullen, Rule Without 

Reason: Requiring Independent Proof of the Corpus Delicti As A Condition of 

Admitting an Extrajudicial Confession, 27 U.S.F. L. Rev. 385 (1993) (urging 

abolition of the corpus delicti rule). 
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development of constitutional protections intended to minimize involuntary and 

false confessions, the utility of the corpus delicti rule is less apparent. As one 

prominent treatise stated, the corroboration rule is often an “obstruction to the 

course of justice.” 7 John Henry Wigmore, Evidence § 2070, p.510 (Chadbourn rev. 

1978).

[¶19.] The corpus delicti rule may also unjustly benefit those who perpetrate 

crimes causing no tangible injury and crimes involving the most vulnerable victims. 

See Smith, 348 U.S. at 154, 75 S. Ct. at 198; LaRosa, 293 P.3d at 575. As the 

Supreme Court explained, the corpus delicti of some crimes, e.g., tax evasion, 

cannot be isolated from the identity of the perpetrator. Smith, 348 U.S. at 154-55, 

75 S. Ct. at 198. Thus, the traditional rule can exclude admissions in those cases. 

In contrast, the corpus delicti in violent crimes is easily isolated, and therefore the 

government can more readily admit the defendant’s admission. Id. But a 

defendant in a tax evasion case should not have a greater protection than a 

defendant in a homicide prosecution. See id. Likewise, the traditional rule operates 

disproportionately in cases involving crimes against minors and the mentally 

infirm. See LaRosa, 293 P.3d at 575 (stating that the corpus delicti rule does more 

harm than good when it bars the convictions in cases involving society’s “most 

vulnerable victims, such as infants, young children, and the mentally infirm . . . .”). 

We therefore agree that the rule may operate to obstruct justice. It is “too rigid in 

its approach, too narrow in its application, and too capable of working injustice in 

cases” like this. See id.
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[¶20.] The corpus delicti rule is a product of the common law: it is not 

constitutionally required,7 it is not required by statute,8 and it is not required by 

the rules of evidence. In 1973, we recognized the two methods of corroboration

discussed in Opper. See State v. Aschmeller, 87 S.D. 367, 375, 209 N.W.2d 369, 373 

(1973). Neither method was adopted because the corroborative evidence was

sufficient under either rule. Id. at 375, 209 N.W.2d at 373-74. Two years later, we 

noted that the traditional formulation requiring evidence of the corpus delicti was 

the majority rule, and we applied it to an admission. See Best, 89 S.D. at 235, 232 

N.W.2d at 452. Ever since, we have restated that rule without reconsidering the 

basis for its continued application. In light of the considerations presented today, 

we agree that the traditional rule has outlived its usefulness, and we now follow 

numerous other jurisdictions in adopting a more modern approach. We adopt the 

trustworthiness rule announced in Opper and Smith. Thus, in cases where the 

defense has moved to suppress an admission before it has been admitted into 

evidence, the court may admit the statement upon the State’s showing of 

“substantial independent evidence which would tend to establish the 

trustworthiness of the statement.” Opper, 348 U.S. at 93, 75 S. Ct. at 164.

Alternatively, the State may continue to corroborate admissions under the corpus 

_________________________________

7. See Dix et al., supra ¶ 18 (stating “Constitutional considerations, however, 

most likely do not demand it.”).

8. SDCL 22-16-2 does provide that: “No person may be convicted of murder or 

manslaughter, or of aiding suicide, unless the death of the person alleged to 

have been killed, and the fact of the killing by the accused are each 

established as independent facts beyond a reasonable doubt.” The statute 

does not govern the admissibility of a defendant’s admissions. 
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delicti rule. And in sufficiency of the evidence cases, a defendant may not be 

convicted unless the defendant’s corroborated confession or admission, independent 

evidence of the crime, or a combination thereof establishes all elements of the crime 

beyond a reasonable doubt. See Smith, 348 U.S. at 156, 75 S. Ct. at 199. 

[¶21.] The remaining question is whether the trustworthiness rule may be 

applied in Plastow’s case. Plastow argues that he did not have “fair warning” of 

today’s change. Therefore, he contends that applying the new corroboration rule in 

his case would deprive him of due process. The State argues that the Ex Post Facto 

Clause does not prohibit such procedural changes to “rules of evidence.”

[¶22.] Although the specific protections recognized in the Ex Post Facto 

Clause are not controlling in retroactive judicial decision-making,9 the “limitations 

on ex post facto judicial decision making are inherent in the notion of due process.”

See Rogers, 532 U.S. at 456, 121 S. Ct. at 1697. The due process question is 

whether our common law application of the new trustworthiness rule would violate

Plastow’s right to “fair warning.” See id. at 457, 121 S. Ct. at 1698. The “judicial 

alteration of a common law doctrine of criminal law violates the principle of fair 

warning, and hence must not be given retroactive effect, only where it is 

‘unexpected and indefensible by reference to the law which had been expressed 

_________________________________

9. The Ex Post Facto Clause “is a limitation upon the powers of the Legislature, 

and does not of its own force apply to the Judicial Branch of government.” 

Rogers v. Tennessee, 532 U.S. 451, 456, 121 S. Ct. 1693, 1697, 149 L. Ed. 2d 

697 (2001) (quoting Marks v. United States, 430 U.S. 188, 191, 97 S. Ct. 990, 

992, 51 L. Ed. 2d 260 (1977)) (internal quotation marks omitted). Rogers

makes clear that the specific protections of the Ex Post Facto Clause are not 

incorporated “jot-for-jot” into the due process limitations. Id. at 459, 121 S. 

Ct. at 1699. 
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prior to the conduct in issue.’” Id. at 462 (quoting Bouie v. City of Columbia, 378 

U.S. 347, 354, 84 S. Ct. 1697, 1703, 12 L. Ed. 2d 894 (1964)).

[¶23.] In Rogers, the Supreme Court found that the Tennessee Supreme 

Court’s abolition of the common law “year and a day” rule10 in homicide cases was 

not “unexpected and indefensible by reference to the law which had been expressed 

prior to the conduct in issue.” Id. The Court concluded that abolition of that rule 

was not unexpected and indefensible because it was widely viewed as an outdated 

relic of the common law; medical and other sciences had rendered the rule obsolete;

a vast majority of jurisdictions that had recently addressed the rule had abolished 

it; and, most importantly, at the time of Roger’s conduct, the rule had only the 

“most tenuous foothold” as part of Tennessee’s criminal law. Id. at 462-64, 121 S. 

Ct. at 1700-01. Indeed, the rule had not been codified and the rule had never been 

the basis for a decision in a similar prosecution in Tennessee. Id. 

[¶24.] Here, retroactive application of the trustworthiness rule would be

unexpected and indefensible by reference to the law that has been expressed in this 

jurisdiction prior to the conduct in issue. The corpus delicti rule has been 

consistently applied to admissions by this court since 1975,11 a consideration the 

Supreme Court found most important in Rogers. See Rogers, 532 U.S. at 464, 121 S. 

Ct. at 1701. Indeed, it was the basis for the reversal of a conviction in Thompson.

_________________________________

10. “At common law, the year and a day rule provided that no defendant could be 

convicted of murder unless his victim had died by the defendant’s act within 

a year and a day of the act.” Rogers, 532 U.S. at 453, 121 S. Ct. at 1695.

11. See Best, 89 S.D. at 235, 232 N.W.2d at 452; Lowther, 434 N.W.2d at 754; 

Bates, 76 S.D. 23, 71 N.W.2d 641; Garza, 337 N.W.2d 823; Thompson, 1997 

S.D. 15, 560 N.W.2d 535. 
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1997 S.D. 15, ¶ 39, 560 N.W.2d at 544. Additionally, our common-law rule’s 

statutory counterpart remains in effect in homicide cases. See SDCL 22-16-2.

12 

Therefore, unlike the abrogation of the year and a day rule considered in Rogers,

adoption of the trustworthiness rule would “mark[] [an] unpredict[ed] departure 

from prior precedent” in that it is a rule that has been “relied upon as a ground of 

[many] decision[s] in” this state. 532 U.S. at 467, 121 S. Ct. at 1703.

[¶25.] Moreover, as previously mentioned, although the Ex Post Facto Clause 

is not applicable in cases involving judicial decision-making, the “limitations on ex 

post facto judicial decision making are inherent in the notion of due process.” Id. at

456, 121 S. Ct. at 1697. Therefore, we find helpful a Supreme Court ex post facto

case discussing the principle of due process “fair warning.” See Carmell v. Texas, 

529 U.S. 513, 531 n.21, 120 S. Ct. 1620, 1632, 146 L. Ed. 2d 577 (2000) (noting that 

one of the concerns of the Ex Post Facto Clause is that legislative enactments give 

“fair warning of their effect”).

[¶26.] Carmell involved repeal of a statute that is analogous to the corpus 

delicti rule. Before its repeal, the Texas statutory rule required corroboration of a 

rape victim’s testimony. See id. at 516, 120 S. Ct. at 1624. The Supreme Court held

that Carmell’s convictions on the counts “not corroborated by other evidence” could 

not be sustained under the Ex Post Facto Clause. Id. at 552, 120 S. Ct. at 1643. 

Carmell held that reducing the quantum of corroborating evidence required in a 

criminal case violated a “fundamental fairness interest, even apart from any claim 

of reliance or notice, in having the government abide by the rules of law it 

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12. See supra note 8. 
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establishes to govern the circumstances under which it can deprive a person of his 

or her liberty or life.” Id. at 533, 120 S. Ct. at 1633. Like Carmell, retroactive 

application of the trustworthiness rule would implicate fundamental fairness 

because the new rule changes the required corroborating evidence such that 

Plastow’s previously inadmissible admission would now likely be admissible. 

[¶27.] Following Rogers and Carmell, we conclude that the retroactive 

application of the trustworthiness rule would violate Plastow’s due process right to 

fair warning. We affirm and remand for further proceedings under the old rule

should the availability of corroborating evidence have changed while this case has 

been on appeal.

[¶28.] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, 

Justices, concur.