As criminal defense attorneys in Charleston, SC, we frequently go to preliminary hearings (sometimes called a “probable cause” hearing) for our clients. In South Carolina, any person arrested in South Carolina for a felony (and some misdemeanor charges) has a right to a preliminary hearing. If you don’t request the hearing within ten days of receiving notice of this right (see the form below), then you’ve waived your right to the hearing. In this article, we explain the purpose behind a preliminary hearing in South Carolina and what happens during the hearing.
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 guilty. Instead, probable cause exists when a reasonable person could be persuaded that the accused committed the crime.
What Happens at a Preliminary Hearing in South Carolina
A preliminary hearing isn’t a trial. A preliminary hearing is heard by a magistrate without a jury, and the accused isn’t required to be present. In fact, 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 timely requests a preliminary hearing should have the hearing held within 10 days of the request, so they generally happen very quickly. However, if the case is indicted by the grand jury before the preliminary hearing getting held, then the preliminary hearing won’t be held. Normally, they happen quickly enough that this is not an issue, but occasionally the hearing gets continued for various reasons, and it is possible that enough time slips 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.
The Chances of Winning at a Preliminary Hearing
Dismissal of the criminal charges at a preliminary hearing is uncommon. The reason is probable cause is a very low standard that’s easy for the police to meet. “Probable cause” nowhere near the standard of “beyond a reasonable standard” that exists at a criminal trial. Instead, probable cause is something not much more than mere a suspicion. Having said that, there other benefits to requesting a preliminary hearing:
- “Face time” with law enforcement and the prosecutor. This is often our first opportunity to speak (at least in person) to someone from the prosecution. We always speak to the officer and prosecutor before the hearing, and we can sometimes get a better sense of how aggressive they will be towards this particular case. Also, sometimes a deal can be worked out at this stage to avoid further prosecution.
- Gathering Information. Either through the pre-hearing meeting or the hearing itself, we get to hear the police’s side of the story and challenge them on various issues.
- Reduction of Charges. Sometimes, while we don’t get the charge dismissed, we can get it knocked down early on. For example, sometimes the police over-charge the defendant. We might be able to convince the prosecutor to reduce the charge at the beginning to a more appropriate charge before we start our real negotiations later. For example, we once had a client charged with Burglary in the 1st Degree. In many cases, the burglary must happen at night for it to be 1st Degree. At the preliminary hearing, the prosecutor conceded that it did not happen at night and should have been Burglary in the 2nd Degree, which carries much less jail time. It was the lower charge we were fighting from that day on, which helped us do our job and gave our client a little piece of mind while the case was ongoing.
- Dismissal of Charges. In one case, the police officer didn’t show up for the preliminary hearing. The judge continued the case to a later date, and the second time around, the officer didn’t show up again. The judge then dismissed the case, and the prosecutor never tried to reinstate it with the grand jury. In a few cases, the judge concluded that there wasn’t sufficient probable cause, and the prosecution didn’t present the charge to the grand jury. So, even though these hearings are hard to win, every once in a while things go our client’s way.
- Bond Reconsideration. In some cases, we ask the court to reconsider the bond that was issued by the original bond judge. Bond reconsideration can include reducing the amount, changing the nature of surety, or modifying the conditions of bond. For example, a standard bond order bans the defendant from leaving the state. If our client works out-of-state, we need to get that restriction removed ASAP. Also, sometimes the bond seems high, and try to have the amount reduced to make it more affordable to the defendant or his or her family. The bond reconsideration is often held at the same time as the preliminary hearing.
Criminal Defense Attorneys in Charleston, SC
If you’ve been charged with a crime in the Lowcountry, then don’t delay and miss the opportunity for a preliminary hearing. Schedule a FREE consultation with a Charleston criminal defense lawyer from our firm. We’ll explain to you the process, what you’re up against, the possible sentences and other consequences, detail a plan for defending you, and answer all of your questions.