Document Type


Publication Date

Fall 1998


Error preservation in South Carolina, Capital punishment, Death penalty, In favorem vitae, State v. Torrence, State v. Patterson, State v. Ivey, State v. Whipple


Criminal Procedure


Before 1991, South Carolina capital defendants benefitted from lenient policies of error preservation. However, in 1991 the South Carolina Supreme Court put an end to these policies and began enforcing default rules that are more draconian than those of any other American jurisdiction with a death penalty. Furthermore, the South Carolina Supreme Court’s decisions have made it difficult for trial practitioners to discern the rules under which they must operate. Taken in combination, the strictness of the new procedural policy, the lack of clarity regarding the applicable rules, and the South Carolina Supreme Court’s often ad hoc approach to enforcing the rules severely inhibit consideration of capital defendants’ rights. Moreover, the current situation wastes an enormous amount of time and money. This Article explores the problems with the current situation and proposes a partial solution.

Part II of this Article describes South Carolina’s most frequently applied procedural rules. Part III then outlines the history and philosophy underlying procedural requirements at trial. Next, Part IV examines the evolution of the South Carolina Supreme Court’s treatment of procedural issues in capital cases and attempts to discern the proper balance between the state’s interest in finality and efficient administration of its criminal laws, and the capital defendant’s interest in receiving a fair trial. Part V then details the court’s current application of the contemporaneous objection rule, using recent case law as a guide. Finally, Part VI advocates the adoption of a plain error rule to address egregious errors in capital cases.

Publication Citation

Published in: South Carolina Law Review, vol. 50, no. 1 (Fall 1998).