If you’ve been arrested or charged with a criminal charge, or charges, in South Carolina, you may be left with a lot of questions. What is the next step? Where do I go from here? When do I go back to court? What is a preliminary hearing and how do I get ready for it? Do I need an attorney?
Since every case is different, you may be left feeling confused, even if this isn’t your first encounter with the South Carolina court system. Worrying about court time and making sure you say and do the right things can cause undue stress. Hiring an attorney to help you through these hard times can lift that added stress off your shoulders.
Whatever your questions or needs, Touma Law Group in Greenville, South Carolina are here to answer any questions you have and get your case back on track and your life moving forward. Let’s take a closer look at a preliminary hearing in South Carolina.
What is a preliminary hearing?
If you are charged with a crime that a magistrate cannot try, you have the right to ask for a preliminary hearing. You are told about this right at your bond hearing, and the hearing is held before a magistrate or municipal judge. Its only purpose is to decide whether there is sufficient evidence to warrant holding you for trial (S.C. Rules of Criminal Procedure, Rule 2). These hearings are sometimes referred to as “probable cause” hearings, as the judge is deciding whether the State has shown probable cause on the charge. The affiant listed on the arrest warrant or the chief investigating officer must be present to testify (S.C. Code Ann. § 17-23-162).
The timing is short. The rule says the request must be made within ten days after you are notified of the right (S.C. Rules of Criminal Procedure, Rule 2(a)), and a person who is notified of the right and does not request the hearing on time loses it (S.C. Code Ann. § 17-23-160). The hearing is then held within ten days after your request. It is not held if you are indicted by a grand jury or waive indictment before the hearing takes place (Rule 2(b)).
One older statute, S.C. Code Ann. § 22-5-320, still appears in the Code and refers to a twenty day period measured from the bond hearing. The Judicial Branch’s FAQ on criminal court and Rule 2 both use ten days, and a Judicial Department memorandum to magistrates explains that after State v. Keenan, 278 S.C. 361 (1982), the Supreme Court put a court rule in place of the statutory procedure. To be safe, ask for the hearing in writing within ten days of the notice and do not wait for any longer period.
What can I do at my preliminary hearing?
At your preliminary hearing, you or your attorney will have the opportunity to question the State’s witnesses, called a cross-examination, and to argue, in person or through counsel, whether a probable case has been made out and whether the case should be dismissed (S.C. Code Ann. § 22-5-320). You may appear through your attorney. According to the South Carolina Judicial Branch’s FAQ on criminal court, the defense may cross-examine the State’s witnesses but may not submit evidence at this hearing. In summary, you or your attorney can:
- Cross-examine the witnesses who testify for the State
- Argue that the State has not shown probable cause on some or all of the charges
- Ask that the charge be dismissed and that you be discharged
The judge will listen to the testimony and to the arguments of you or your attorney. The judge is not deciding whether you are guilty, and is not weighing every piece of evidence to determine if it is true, but only whether there is sufficient evidence, meaning probable cause, to hold you for trial. This is why it is important that you prepare for your preliminary hearing. With an experienced criminal defense attorney at your side, you will have help preparing for the hearing, questioning the witnesses, and understanding the result.
Bail is handled separately from the preliminary hearing. The court with jurisdiction over the offense may amend the conditions of release after notice and a hearing (S.C. Code Ann. § 17-15-50), and a circuit court judge may review and reconsider a bond set by a summary court judge (S.C. Code Ann. § 17-15-55).
What happens if the judge finds no probable cause?
If the magistrate finds a lack of probable cause, you are discharged. However, the discharge does not prevent the State from bringing another prosecution for the same offense (Rule 2). For this reason, it is wise to stay in touch with your attorney for a time after a discharge.
What happens if the judge decides to move forward with my charges?
If the magistrate finds probable cause, you are bound over to General Sessions Court (Rule 2). Within 90 days after receiving the arrest warrant from the clerk of court, the solicitor must prepare an indictment for the grand jury, formally dismiss the warrant, or make another written disposition (S.C. Rules of Criminal Procedure, Rule 3). Only a trial, a plea, or another final disposition decides the outcome of your case, because the preliminary hearing does not decide guilt.
During the preliminary hearing, you and your attorney will hear testimony from the State’s witnesses. This can help your criminal defense lawyer begin to evaluate the case against your criminal offense charges. The formal process for getting the State’s evidence is discovery, which is governed by S.C. Rules of Criminal Procedure, Rule 5. Because the right to a preliminary hearing is lost if you do not request it in time, talk to an attorney quickly about whether to request one.
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A preliminary hearing is not a trial, and the defense generally may not present its own evidence. Even so, hearing the State’s witnesses testify and cross-examining them can give your attorney information to use in contacting witnesses, working on a defense, and evaluating the strength of the case.
Call Us Today
No matter the criminal or legal issues you are facing, it’s time to get in control of them. With the experienced criminal defense attorneys at Touma Law Group on your side, you will have help preparing for your preliminary hearing and understanding what it means for your case. Our attorneys are prepared to handle your case at each stage, including trial if your case goes that far. We will stand by you through every step of your legal journey. Call us today for a free consultation, and let us take the burden off of your shoulders.
