What is a preliminary hearing in SC?
If you’ve been charged with a General Sessions level offense in SC, you only have ten days to request a preliminary hearing – request the hearing or have your attorney request the hearing asap. You can waive it later if needed, but you can’t go back and ask for a hearing later if you missed your deadline…
What happens at a preliminary hearing? Is there a point to preliminary hearings in SC or should I waive my preliminary hearing?
I’ll answer these questions and more below but remember that you must only rely on advice from your attorney based on the unique facts of your case – this article provides general information only.
If you’ve been charged with a crime in SC and are not sure if you are entitled to a preliminary hearing, call Myrtle Beach defense lawyer Daniel A. Selwa at (843) 492-5449 or fill out our contact form to set up a free consultation about your case.
What is a Preliminary Hearing?
A preliminary hearing in SC is a “probable cause” hearing where a magistrate (or municipal judge) hears testimony from either the affiant on the arrest warrant (usually the arresting officer) or the chief investigating officer for your case.
The court decides whether there is enough evidence for your case to go forward – if the judge finds probable cause, then the case goes to the grand jury for indictment.
When Do I Get a Preliminary Hearing in SC?
Every person who is charged with a General Sessions level offense in SC is entitled to a preliminary hearing. It doesn’t matter if the charges are a felony or misdemeanor – if you are charged in General Sessions Court, you have the right to a preliminary hearing.
Can I Request a Preliminary Hearing for a Magistrate or Municipal Court Case?
Although a magistrate or municipal court judge will preside over your preliminary hearing, you don’t get a prelim in SC for magistrate or municipal level offenses – only General Sessions level offenses.
How Do I Request a Preliminary Hearing?
At your bond hearing, the court provides you with a Notice of Preliminary Hearing form that you or your attorney must fill out and submit to the address provided on your form within ten days.
According to SC Code Section 17-23-160:
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.
Talk to your defense lawyer as soon as possible after you are released from jail. If for some reason you can’t retain an attorney immediately, fill out the form completely and send it to the address provided on the form immediately. Keep copies of all documents and provide them to your attorney when you first meet with them.
What if I Miss the Deadline to Request the Preliminary Hearing?
Section 17-23-160 also says that “any person so notified who fails to timely request a preliminary hearing shall lose his right to such hearing.”
What if My Case is Indicted Before My Prelim is Scheduled?
Once your case has been indicted, you lose your right to a preliminary hearing.
Although most prelims are scheduled before a case is sent to the grand jury, delay on the part of the prosecutor or continuances requested by either side can result in your case getting sent for indictment by the prosecutor before the prelim.
Yes, your prosecutor controls when your case is sent to the grand jury, and they can prevent you from having a preliminary hearing if they indict the case first. No, that is not fair.
Can I Hire a Defense Lawyer Just for the Preliminary Hearing?
SC’s criminal courts frown on “limited appearances” by defense lawyers. For example, if a defense lawyer appears to represent you for your bond hearing, that attorney is now your attorney of record and should handle your case to completion.
Problems arise when you pay an attorney only for the limited purpose of a bond hearing, then you cannot afford to pay the remainder of the retainer – you now have an attorney on your case who hasn’t been paid, you don’t have a public defender, and the status of your representation is in limbo…
SC law makes an exception for preliminary hearings, however. Although it may not be wise to retain an attorney solely for a preliminary hearing and many attorneys may decline to represent you only for a preliminary hearing, it is a limited representation that is authorized by SC law.
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.
What Happens at a Preliminary Hearing in SC?
At most SC preliminary hearings, the Court will only hear testimony from the officer (either the “affiant” who signed the arrest warrant affidavit or the chief investigating officer for your case).
You do not get to testify, and, although your attorney may instruct you to be there, you do not have to appear at the preliminary hearing if your attorney is there on your behalf.
The officer will testify, your attorney may cross-examine the officer, your attorney and the prosecutor might make “closing arguments” to the court, and then the judge will decide whether there is probable cause based on the officer’s testimony.
Do Cases Get Dismissed at Preliminary Hearings?
Yes. Cases get dismissed at preliminary hearings in SC.
There are two ways cases get dismissed at prelims:
- The judge hears the officer’s testimony, decides that it does not support probable cause, and dismisses your charges; or
- The affiant or chief investigating officer do not show up for your hearing and the judge dismisses your charges for failure to prosecute.
SC Code Section 17-23-162 specifies that the affiant or the chief investigating officer must be present to testify:
The affiant listed on an arrest warrant or the chief investigating officer for the case must be present to testify at the preliminary hearing of the person arrested pursuant to the warrant.
The prosecutor cannot call a supervisor or an officer who does not have personal knowledge of the facts of the case to simply read the incident report and warrant affidavit to the court.
It is impossible to cross-examine someone who is not personally involved in the investigation and the Court can’t make a meaningful determination of probable cause unless the witness is either the affiant or the chief investigating officer.
Although the court will often continue the case for the prosecution when their witness does not appear, your case should be dismissed when the state’s witness is not present and did not request a continuance or notify the court and attorneys ahead of time.
What Happens After My Case is Dismissed at a Preliminary Hearing?
It depends on why the case was dismissed, who your prosecutor is, who the arresting officer is, whether it is a “victim” case, and what your prosecutor’s office policy is regarding dismissals at preliminary hearings.
In some cases, your case will well and truly be gone, done, and dismissed.
You won’t know that at first, however, because the prosecutor can (and often does) still send your case to the grand jury for indictment.
If your case was dismissed because the officer’s testimony clearly did not support probable cause, your case is less likely to be sent for indictment.
If your case is dismissed because the officer did not show up at the hearing, your case is more likely to be sent for indictment, especially if the case involves an alleged victim.
If your case is indicted after a dismissal at the preliminary hearing:
- The prosecutor will have to serve the indictment on you – your attorney should arrange to do this by consent at a court hearing whenever possible to avoid re-arrest;
- The Court will need to “reset” your bond, hopefully by consent at a court hearing; and
- Your bondsman will need to consent to remain on the bond.
Although this process usually goes smoothly, there are no guarantees…
The Dilemma of Prelims vs Grand Jury Indictment
If the Court hears full testimony from the arresting officer, the state is represented at the prelim by the solicitor’s office, the defendant is represented by their attorney, and the Court decides that there is no probable cause, how can the state then send the case to the grand jury to decide whether there is probable cause?
The doctrine of collateral estoppel, or issue preclusion, bars issues that have already been fully litigated, when both parties were represented, from being litigated again. The issue has already been decided.
If a case is dismissed because the officer didn’t show up, then, arguably, the issue of probable cause has not been fully litigated and decided. But, when the officer testifies and the Court decides there is no probable cause, it should be over…
SC’s appellate courts have never heard or decided this question as applied to preliminary hearings.
If the officer testifies at the preliminary hearing, the Court decides there is no probable cause, and then the prosecutor secures an indictment from the grand jury for the same charge based on the same evidence (or, more likely, considerably less evidence with no opportunity for cross-examination), then the defense lawyer should move to dismiss prior to trial based on collateral estoppel – the issue of probable cause has already been fully litigated and decided…
Because there is no case law on point, the trial court may deny the motion – but it will be preserved for appeal.
Why Do Some Attorneys Say Preliminary Hearings are Pointless?
Preliminary hearings in SC are not pointless.
They are, in fact, incredibly useful:
- Your case might get dismissed. I have heard attorneys say that cases never get dismissed at prelims, and therefore it is a waste of time. Well, if you waive all your preliminary hearings, you’ll probably never get a case dismissed at a prelim…
- There are no depositions in criminal cases in SC. Your preliminary hearing is the first and best chance to question the officer under oath about the facts of your case and lock them into their testimony. Maybe nothing they say on the stand is helpful to your case. But maybe it is – your attorney can then request the recording of the proceedings and use it to impeach the officer if he or she tries to change their testimony later at trial.
- The preliminary hearing is useful to gather information that can be used to investigate further – instead of relying on written reports from the officer, your attorney can ask them questions about the basis for probable cause. Maybe you learn nothing useful. Or, maybe the officer drops a nugget that later results in your case getting dismissed or an acquittal at trial…
- Your attorney might take the opportunity to “chat” with the officer before or after the preliminary hearing. Although it’s no substitute for testimony under oath, these conversations can sometimes result in dismissal or reduced charges. At a minimum, an informal, off-the-record chat could provide valuable information for your attorney.
- If you lose, there is no downside. Your case continues as it was as if you had never requested the prelim – except your attorney may have new information to use in your defense.
Should I Waive My Preliminary Hearing in SC?
You’ll have to answer this question with input and advice from your defense lawyer.
I’ve heard attorneys say that they don’t want to go forward with prelims because they don’t want to “rock the boat” or risk “making the officer mad.”
Personally, I don’t think this is ever a valid reason to waive a preliminary hearing. Based on my experience, officers don’t “get mad” because they are forced to testify at a preliminary hearing. It’s their job and it’s your right.
But there are valid reasons to waive a preliminary hearing and I’ve waived prelims for my clients many times.
Trust your defense lawyer’s best judgment, remember that waiving a substantial right like a preliminary hearing is your decision based on your attorney’s advice, but don’t second-guess your attorney based on something you read on the internet…
Horry County Preliminary Hearing Lawyer in Myrtle Beach, SC
Attorney Daniel A. Selwa is a criminal defense lawyer based in Myrtle Beach, SC.
If you have been arrested and charged with a General Sessions level offense in Myrtle Beach or Horry County, SC, request a preliminary hearing immediately – you or your attorney can waive the hearing later, but you cannot go back and request a hearing once your deadline has passed.
Call now at (843) 492-5449 or send an email to speak with a SC criminal defense attorney in Myrtle Beach today.