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S.D. Supreme Court considers third-party perpetrator evidence against 10-year-old boy

South Dakota Supreme Court
South Dakota Supreme Court

A woman charged with murdering her three-year-old daughter plans to introduce evidence at trial that a ten-year-old boy might have caused the death. Lawyers for the state and defense told the South Dakota Supreme Court earlier this week that the trial has been tied up for two and a half years over the logistics of presenting third-party perpetrator evidence to a jury.

Amanda Hernandez of Wagner was charged with murder after her little daughter was beaten to death in August 2019. The case has still not gone to trial.

Parties have asked the state Supreme Court to settle the sticking point: whether Hernandez can use expert testimony to try to convince a jury that a 10-year-old boy committed murder.

Timothy Whalen represents Amanda Hernandez. He told justices that the boy, referred to by his initials, N.M., was alone with the girl without adult supervision much of the night before the girl was found dead the next day.

Whalen said N.M. has witnessed severe domestic violence in his home, plays violent video games, and attacked his younger sister in front of witnesses.

Whalen wants to call an expert to testify about conditions in the boy’s life, and to cite studies showing that those conditions can lead a child to be violent.

“The state says this is not science-related and it’s outside the rules of evidence,” he told justices. “That’s not correct. The science is there.”

Whalen said it’s a demonstrable fact that violence has no age limit.

Deputy Attorney General Sarah Thorne represents the state.

“The state is absolutely not saying that the science is not there,” she said. “As we clarified, this is not a Daubert challenge. We are saying that the facts are not there.”

Thorne said evidence shows that the boy treated the little girl with kindness. When she was whimpering in the morning, wondering where her mother was, N.M. soothed her and got her a drink of water.

Thorne told justices there’s no evidence connecting N.M. to the crime, but if an expert is allowed to testify that the boy was capable of committing murder, the jury might get the impression that the accusation is a scientific truth.

The Supreme Court will release its decision later, and the trial process in Charles Mix County can go on from there.

Rapid City freelancer Victoria L. Wicks has been producing news for SDPB since August 2007. She Retired from this position in March 2023.