You have the right to request a preliminary hearing and have an attorney present to protect your rights.
Do not let the time pass for requesting a preliminary hearing in South Carolina. If you are arrested and charged with a General Sessions Court offense in South Carolina, you have the right to challenge the probable cause for your arrest. However, you must act quickly as you only have ten days from the date on which you are arrested for requesting a preliminary hearing in South Carolina.
The Purpose of a Preliminary Hearing in South Carolina
In South Carolina, for a criminal case to proceed, the prosecution must show sufficient evidence to establish “probable cause” to bind the accused over to the grand jury for indictment. Probable cause isn’t proof of guilt. Instead, probable cause exists when a reasonable person could be persuaded that the accused committed the crime.
What Occurs at a Preliminary Hearing in South Carolina
A preliminary hearing is a hearing held before a Magistrate or Municipal Court Judge who will determine whether or not there is sufficient probable cause for your criminal charges.
A preliminary hearing isn’t a trial. A magistrate hears a preliminary hearing without a jury, and the accused isn’t required to be present. The accused can’t testify or present any evidence. Generally, the prosecution calls a witness to testify about probable cause. This witness is typically the arresting officer or the chief investigating officer. This hearing is one of the few in South Carolina where hearsay testimony is allowed.
South Carolina law says that a defendant who is timely requesting a Preliminary Hearing in South Carolina should have the hearing held within ten days of the request, so they generally happen very quickly. However, if the grand jury indicts the case before the preliminary hearing getting held, then the preliminary hearing won’t be heard. Normally, they happen quickly enough that this is not an issue. Still, occasionally the hearing gets continued for various reasons, and enough time may slip that the indictment is made while waiting on the hearing. Also, if you apply for a public defender, the appointment doesn’t happen quickly and may take longer than the time set for your preliminary hearing. In that case, the hearing will be continued until you have a public defender.
During the hearing, your criminal defense lawyer is allowed to cross-examine the officer, but this cross-examination is limited to asking questions relating to probable cause, not the entire case. The Judge then reviews the testimony and decides whether probable cause exists. If so, the Judge will say the case is “bound over for trial.” If not, the Judge will dismiss the case. However, even if the Judge dismisses the case, the prosecution can still present the case to the grand jury for indictment.
If your case is bound over by the Judge, your case will be sent to the Grand Jury for indictment before trial.
If your criminal charges are dismissed by the Judge in your preliminary hearing, your charges will either remain dismissed, or the criminal Prosecutor will have the opportunity to directly present your case to a Grand Jury for indictment.
If at the time of your preliminary hearing your case has already been indicted, you are not entitled to a preliminary hearing per the South Carolina Rules of Criminal Procedure, as the probable cause has already been established by the Grand Jury’s return of a “true billed” indictment.