Marijuana Trial? Not Without a Chemist…

How do you win a marijuana trial?

When the prosecution does not call their chemist as a witness in a marijuana trial, the drugs do not come into evidence. No drugs = directed verdict (when the court “dismisses” the case at the halfway point because there is insufficient evidence for a guilty verdict).

Every case is unique, and most people charged with possession of marijuana will have defenses that are based on the facts of their case. Some common defenses, however, include:

  • Constructive possession – the marijuana did not belong to you and the government did not prove that you had both knowledge of the marijuana and “dominion and control” of the marijuana, (the right to control its disposition);
  • Mere presence – if someone has marijuana and you are standing nearby, that does not make you guilty of possession – mere presence is never enough to convict a person of a crime;
  • Jury nullification – although some attorneys consider this a rare unicorn and attorneys in SC are not permitted to explicitly argue jury nullification at trial, it’s a fact that some jurors think marijuana prohibition is ridiculous and will acquit a defendant for that reason alone; and
  • Insufficient evidence – this could be a failure of any type of critical evidence, but below we are going to discuss what happens when the prosecution fails to prove that marijuana is marijuana.

In any drug possession, distribution, trafficking, or possession with intent to distribute marijuana trial, the prosecution must prove that the drugs are what the prosecutor says they are – how do they do that and what happens when they don’t bring their witnesses?

What Happens During a Marijuana Trial?

A lot goes into preparing any case for trial, even what may seem like a “simple” case like simple possession of marijuana.

Your attorney must investigate, locate any witnesses that can help your defense, inspect any evidence that the government plans on using against you, spot all potential issues in your case, research case law and prepare motions based on those issues, anticipate issues that will be raised by the prosecution, prepare to present your case to the jurors in opening, closing, and through witness testimony, and be prepared to take advantage of any mistakes that the prosecutor makes.

At trial, your attorney might make motions in limine (before the trial starts) to suppress evidence in your case, motions to dismiss before the start of trial, and a motion for directed verdict after the prosecution rests their case.

After opening statements, the government will present any witnesses that they have, then you present your witnesses (if any), each side makes closing arguments, and then 12 jurors decide your fate.

For purposes of this article, however, we are concerned with one witness in the marijuana trial – the chemist…

Magistrate Court, Municipal Court, or General Sessions Court?

As a practical matter, we are talking about a marijuana trial in the magistrate and municipal courts. Why?

If you are charged with distribution of marijuana, trafficking marijuana, or another General Sessions-level offense, you will be prosecuted by a trained attorney who probably has at least some experience trying drug cases. It is a rare General Sessions trial where the prosecutor neglects to call a chemist in a drug trial.

If you are in magistrate court or some municipal courts, however, your prosecutor may be the police officer who made the arrest.

When you have an experienced defense attorney on your side, that’s probably not fair. They probably should not make police officers try cases – they are not trained attorneys and, for the most part, they really don’t understand the rules of evidence or how to present a case.

On the other hand, it’s also not fair when a trained attorney or even a police officer prosecutes a layperson who doesn’t have a defense attorney. Regardless, if you are facing criminal charges, you or your attorney can and should use every legal and ethical advantage that you can find…

Why You Need an Experienced Marijuana Defense Lawyer

Don’t attempt to represent yourself in a marijuana possession case. Don’t attempt to represent yourself in any criminal case. There is no substitute for experience and the knowledge of case law, the rules of evidence, and trial practice that can only come from years of practice and training.

If you can’t afford to pay an attorney, tell the court. Tell the court that you need a public defender, and, every time you find yourself in court and as often as possible, make a record that you are requesting an attorney.

If you can afford an attorney, call one now.

Melendez-Diaz and the Right to Confrontation

Why does the government need to call a chemist as a witness?

Marijuana is not marijuana until a chemist testifies that they tested it and it was, in fact, marijuana. When the prosecutor, officer, or any witness attempts to call it marijuana, your attorney should object and move to strike until a foundation has been established to call it marijuana – meaning a chemist must testify as to the results of their test.

Can’t the prosecutor or officer just hand a chemist’s report to the judge and enter it into evidence?


The Sixth Amendment to the US Constitution guarantees every criminal defendant the right to confront the witnesses against them, which necessarily includes the opportunity to cross-examine the witnesses.

if a chemist says a green, leafy substance is marijuana, you can’t cross-examine them unless they are there on the witness stand. Obviously, you can’t cross-examine a piece of paper either…

In Melendez-Diaz v. Massachusetts, the US Supreme Court made it clear that it is a violation of the Confrontation Clause to admit a chemist’s report without live testimony and the opportunity for the defendant to cross-examine the chemist. Soon after, the Court reaffirmed their decision in Briscoe v. Virginia.

As an aside, Melendez-Diaz was acquitted at his retrial after the US Supreme Court reversed his conviction.

It’s simple – the conclusions contained in a chemist’s written report are hearsay and are not admissible unless the chemist appears to testify in person.

Rule 6 of the SC Rules of Criminal Procedure

But, Rule 6 of the SC Rules of Criminal Procedure allows the admission of a chemist’s report. What about that?

The report shall be admitted without the necessity of the chemist or analyst personally being present or appearing in court provided:

(1) the report, at a minimum, identifies each item tested, the kind of test or tests conducted on each item, and the chemist’s or analyst’s conclusion whether the item is or contains a controlled or other regulated substance (to include weight or quantity, if appropriate) in language which can be understood by a juror without the necessity for expert testimony; and,

(2) the report is accompanied by an affidavit of the chemist or analyst who performed the test or tests that:

(A) he or she is certified by SLED as qualified under standards approved by SLED to analyze those substances;

(B) sets forth his or her training and experience as a chemist or analyst, to include the number of times he or she has been qualified as an expert witness and testified in court; and,

(C) he or she conducted the test or tests shown on the report using procedures approved by SLED and that the report accurately reflects his or her opinion regarding the results of those tests.

Rule 6 goes on to say that, unless the defendant objects within 10 days of trial, the chemist’s report is admissible.

A decade later, SC still has not amended Rule 6 to bring it into compliance with Melendez-Diaz. Regardless, it is unconstitutional and cannot be enforced. How should defense attorneys handle this?

Until Rule 6 is amended or repealed, make the objection under Rule 6 along with your discovery motions. It won’t hurt anything, and it might save you from having to explain to a non-attorney magistrate court judge what the Melendez-Diaz case means and why the chemist’s report is inadmissible…

Don’t mention the chemist before trial or ask the officer “Hey, where’s the chemist?”

Object to any reference to that “green, leafy substance” as marijuana or drugs. Object to the admission of the report when they try to hand it to the judge. If there is no chemist and no foundation has been laid for the admission of the drugs, move for a directed verdict after the State rests.

SC Marijuana Defense Lawyer in Myrtle Beach

Attorney Daniel A. Selwa is a marijuana defense lawyer based in Myrtle Beach, SC.

If you have been charged with any drug offense, call now at (843) 492-5449 or contact us by email to speak with a SC criminal defense attorney in Myrtle Beach today.

how to win a marijuana trial

Share this post to social media...