South Carolina Criminal Defense Blog

I'm in the middle of a trial right now - CDVHAN, kidnapping, and burglary allegations in Georgetown County - and so my time for blogging is limited. This, coming straight out of another ABWIK trial in Horry County week before last. But, this is pretty big news: SCOTUS has remanded Briscoe v. Virginia to the Virginia Supreme Court, with a brief per curiam opinion instructing the Virginia Court to reconsider their ruling in light of Melendez-Diaz.

At least it doesn't take long to read this one:

PER CURIAM. We vacate the judgment of the Supreme Court of Vir-ginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massa-chusetts, 557 U. S. ___ (2009). It is so ordered.

Melendez-Diaz held that the prosecution cannot use reports or affidavits from analysts at trial unless the analyst is present and subject to cross-examination. In Briscoe, the Virginia Supreme Court had sided with the government and held that drug reports were admissible without live testimony unless the defendant objected, placing the burden on the defendant to bring the state's analyst to the trial.

South Carolina has a similar system to that in Briscoe, and under Rule 6 of the rules of criminal procedure affidavits used to establish chain of custody and the report of a chemist are admissible at trial without live testimony unless the defendant objects within a certain period of time.