Being arrested and finding yourself facing criminal charges can feel overwhelming.
What’s more, you find yourself in a world full of terms that you don’t understand. Terms like “Preliminary Hearing”.
Well, I’ve attempted to answer the most common questions about preliminary hearings in South Carolina so you can better decide whether or not you need to request one.
Let’s get started.
1. What is a preliminary hearing?
In short, a preliminary hearing is a hearing in which the State must present the evidence they have against you. It is also sometimes called a “Probable Cause Hearing.” Any defendant in General Sessions Court has the right to request a preliminary hearing.
2. Do I have to request a preliminary hearing?
Yes, you or your lawyer should request a preliminary hearing within 10 days of your arrest. To be on the safe side, count weekends and the day of your preliminary hearing. For example, if you were arrested on July 1, you or your lawyer should request a preliminary hearing on or before July 10.
3. How do you request a preliminary hearing?
You should be given a document before you are released from jail that you (or your lawyer) can sign and mail to the magistrate court. It is advisable to keep a copy of the form you mail or hand deliver to the court.
4. What if I don’t have the document that I need to request a preliminary hearing?
You may have been given many documents when you are arrested that you may not understand. It can be overwhelming. You may have lost some of these papers in the shuffle. But don’t worry. You can still request your preliminary hearing by writing a letter to the Magistrate Court in the County where your case is pending. Include your name, date of arrest, case number, etc. Simply request a preliminary hearing in the letter and keep a copy of the letter for your records. Don’t forget to date the letter so the Court will know you made your request in a timely manner. Click here to see an example of a “Notice of Right to Preliminary Hearing in SC”.
5. Is it beneficial to your case if you or your lawyer request a preliminary hearing?
Yes. Often by the time of your preliminary hearing, you or your lawyer will not have the evidence requested from the police (the case report, witness statements, 911 recording, etc.). The Preliminary Hearing is an excellent tool to find out important information about your case. A law enforcement officer will give sworn testimony about the case.
6. Do I have to testify at a preliminary hearing?
No. Typically law enforcement will testify at a preliminary hearing.
7. Do I need to bring witnesses for my case to the preliminary hearing?
No. The Court will not allow testimony from witnesses other than law enforcement at a preliminary hearing. Remember, the preliminary hearing is not your trial. You will have an opportunity to present witnesses at your trial if you choose to have a trial. You will also be able to testify at your trial if you chose to do so. Your lawyer can advise you on these matters.
8. Do I need to be present at a preliminary hearing if I have an attorney?
You should discuss this with your defense attorney, but I advise my clients to be present at these hearings, even though my clients do not testify at these hearings. In most cases, the client is the only person at the preliminary hearing who truly knows what occurred. The law enforcement officer knows what witnesses told him/ her. In fewer cases the officer actually observed what occurred in the case. Therefore, I encourage my clients to attend preliminary hearings and take notes on what they hear that is true/ not true. It also helps me during the preliminary hearing.
9. What does it mean when a preliminary hearing is waived?
It means you will not be having a preliminary hearing. Typically your lawyer will make this decision. Your lawyer should discuss this possible option with you prior to the preliminary hearing.
10. What is the purpose of a preliminary hearing?
The specific reason for having a preliminary hearing is to find out if there was enough probable cause for the police to arrest you.
11. What is the difference between a preliminary hearing and an arraignment?
After you are summoned to court, an arraignment is a short hearing before a judge. At the hearing you will be served with (handed) an indictment. The indictment is a document that explains exactly what crime or crimes you are being charged with. You will find out what the police say you did wrong to not abide by the law. At your arraignment, you will enter a plea of either not guilty (you didn’t do what they say you did) or guilty (you did what they say you did). Arraignments are more common in federal criminal court.
A preliminary hearing is a hearing before a magistrate judge to determine if there is enough probable cause for the police to arrest you. You will not be served with an indictment. You will not enter a plea of guilty or not guilty at your preliminary hearing.
12. What are the possible outcomes of a preliminary hearing?
The two possible outcomes are:
- The case is bound over
- The case is dismissed
13. What does it mean for a case to be bound over at the preliminary hearing?
It means the Judge decides there is enough evidence of probable cause presented to move forward with your case. The next step is your case will be in General Sessions Court at your First Appearance. The court that heard the preliminary hearing will forward its findings to the Clerk of Court of General Sessions within 10 days.
14. What does it mean if the case is dismissed at the preliminary hearing?
It means the Court found there was not enough probable cause to move forward with the case. The Judge will sign an Order of Dismissal. The bondsman will no longer have any liability on the bond. The accused’s record cannot be expunged for 60 days after the dismissal without the consent of the Solicitor (prosecutor).
15. If the case is dismissed at the preliminary hearing, can the case ever be put back on the General Sessions docket?
Yes, this can occur when the Solicitor decides to directly indict a person. The case can be dismissed “without prejudice” at the preliminary hearing but the State is not prevented from instituting another prosecution for the same offense. This is not considered double jeopardy.
16. What if my case goes before a Grand Jury before I have my preliminary hearing?
If the Grand Jury hears your case before you have a preliminary hearing, you will not have a preliminary hearing.
17. Are there preliminary hearings in criminal court?
Yes. Preliminary hearings are held in the Magistrate’s Court. The Magistrate Judge hears criminal cases. The Preliminary Hearings are for criminal cases pending in General Sessions Court.
18. Are there preliminary hearings in magistrate court?
Yes. The preliminary hearings for General Sessions Court are held in the Magistrate’s Court before a Magistrate Court judge.
19. Do I need an attorney for my preliminary hearing?
It will be beneficial to have an attorney represent you at the preliminary hearing.
It’s important to consider speaking with a criminal defense attorney–one who can guide you through the pros and cons of your case and advise you on defenses you may have. If you have been charged with a criminal offense use this form, or call 843-607-9800 to speak with Susan Williams.
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