Preliminary hearings in SC are an important right that every person has when they are charged with a General Sessions-level criminal offense.
Cases are often dismissed at preliminary hearings – whether it is for lack of probable cause or a failure to prosecute when the officer doesn’t show up, and, when cases are not dismissed, preliminary hearings are still an invaluable source of information and an opportunity to cross-examine the officer before your case goes to trial.
In this article, we will discuss preliminary hearings in SC including:
- The procedure at preliminary hearings,
- Who is entitled to a preliminary hearing,
- What happens after you win or lose your hearing,
- The effect of a grand jury indictment on the preliminary hearing, and
- Whether you can retain an attorney solely for the preliminary hearing.
What is a Preliminary Hearing in SC?
A preliminary hearing in SC is a “probable cause” hearing – it is not a trial, and the only purpose of the hearing is to establish whether there was probable cause for your arrest.
The hearing will usually be in front of a magistrate (if you were arrested in the county) or a municipal court judge (if you were arrested within city limits).
What Happens at a Preliminary Hearing?
At most prelims in SC, the defendant does not call witnesses. Ordinarily, the state will call the arresting officer or the chief investigating officer in your case and ask them questions to establish why they arrested you.
Your criminal defense lawyer can then cross-examine the officer as to whether there was probable cause for your arrest and what evidence they had at the time of your arrest that would show probable cause. After the officer’s testimony, your attorney and the prosecutor will usually make arguments to the magistrate or municipal court judge as to why the case should or should not be dismissed.
What Happens if You Win a Preliminary Hearing?
If the preliminary hearing court dismisses your case, you may or may not be done. The prosecutor can still send your case to a grand jury for indictment, and they often do.
If your case is “direct indicted” after dismissal at the preliminary hearing, your charges will be reinstated and you will need to have your bond reinstated as well – in a perfect world, the prosecutor will notify your defense lawyer and the bond reinstatement can be done by consent.
If your case is not indicted after the dismissal by the preliminary hearing court, your case is over and you are free.
What Happens if You Lose a Preliminary Hearing?
If you lose your preliminary hearing, you lose nothing.
Your case will continue as it was, and there is no penalty for losing a preliminary hearing. It is just a finding by the magistrate that there was probable cause for your arrest. Remember that probable cause is a low standard of proof and the prosecutor must prove their case beyond any reasonable doubt before you can be convicted at trial.
Can I Request a Preliminary Hearing for a Magistrate or Municipal Court Case?
You are entitled to a preliminary hearing if you are charged with any General Sessions-level offense in SC, regardless of whether it is a felony or misdemeanor, but you are not entitled to a preliminary hearing in magistrate or municipal court cases.
How Do I Request a Preliminary Hearing in SC?
SC Code § 17-23-160 requires the magistrate to notify you of your right to a preliminary hearing and to give you a form you can use to request your preliminary hearing:
When any person charged with a crime who is entitled to a preliminary hearing on such charges appears in person or by counsel in a hearing to set bond, he shall be notified by a magistrate orally and in writing of his right to such preliminary hearing. When a person is notified of his right to a preliminary hearing, he shall be furnished a simple form providing him an opportunity to request a preliminary hearing by signing and returning this form to the advising magistrate then and there or thereafter.
You should immediately contact your criminal defense lawyer after your arrest and have them request the preliminary hearing for you, or, if you do not have an attorney, immediately send in the preliminary hearing request, following the instructions on the form.
If you do not request a preliminary hearing within the deadline, you will lose your right to a hearing.
Should You Waive Your Preliminary Hearing?
In most cases, you should not waive your preliminary hearing in a criminal case in SC, although every case is different, and you should rely on the advice of your attorney.
If you lose your preliminary hearing, you lose nothing. At best, your case could be dismissed. At worst, your case continues as it was, but your attorney has “locked in” the officer’s testimony. If the officer tries to change their testimony later at your trial, the jury will know that they are either lying or mistaken.
In some cases, even if the magistrate does not dismiss your case at the hearing, the officer’s testimony might be enough to persuade your prosecutor that they have a weak case they cannot win at trial…
What Happens if I am Indicted Before the Preliminary Hearing?
If the prosecutor sends your case to the grand jury for indictment before your preliminary hearing, you lose your right to a preliminary hearing.
That is an unfortunate rule in SC – at preliminary hearings, a judge hears evidence from the officer, including cross-examination to test their evidence. A grand jury, on the other hand, hears a one to two-minute “summary” prepared by the officer which is often no more than a conclusion.
In the absence of “real” testimony that is tested by cross-examination, nearly every case that is sent to a SC grand jury is indicted.
Can I Hire an Attorney Just for the Preliminary Hearing?
We recommend that you “fully” retain a criminal defense attorney to represent you on your case immediately after your arrest (before your arrest, if possible).
In most cases, SC courts do not approve of “partial” or “limited” representation in criminal cases. If you pay an attorney solely for a bond hearing, for example, that attorney could be forced to continue representation throughout your case.
Preliminary hearings are an exception, however – SC Code § 17-23-165 says that you can retain an attorney solely for representation at your preliminary hearing:
The appearance by an attorney on behalf of a defendant in a preliminary hearing shall not in and of itself obligate that attorney to continue the representation of that defendant beyond the preliminary hearing.
If your attorney gets your case dismissed at the prelim, and if the prosecutor does not get a direct indictment from the grand jury, your case is over. If the case continues, however, you will need to retain a criminal defense lawyer to handle your case through dismissal, plea, or trial.
Preliminary Hearing Attorneys in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending misdemeanors and felonies in SC courtrooms, including preliminary hearings in the magistrate and municipal courts.