A preliminary hearing in SC is a probable cause hearing where the prosecution must prove that there was probable cause for your arrest and charges.
If there was no probable cause, your case is dismissed. If the court finds that there was probable cause for the arrest, your case continues – no harm done, and nothing changes except now you may have additional information about the officer’s expected testimony and the potential weaknesses in the state’s case.
Below, we will answer the most common questions we get about preliminary hearings including:
- What happens at a preliminary hearing,
- Who is eligible for a preliminary hearing,
- How you request a prelim, and
- Whether you should waive your preliminary hearing.
What is a Preliminary Hearing?
Police can only make an arrest or get an arrest warrant signed by a judge if there is probable cause that the person has committed a crime.
What is probable cause?
There is no single definition for probable cause, but courts have generally found that there must be a reasonable basis for believing that a crime has been committed by the person. So what is a reasonable basis?
It’s something more than a reasonable suspicion, and something less than proof by a preponderance of the evidence (more likely than not).
Who Gets a Preliminary Hearing?
Any person who is charged with a crime in General Sessions Court in SC has the right to a preliminary hearing – this includes most cases that carry more than 30 days in jail as a potential penalty, ranging from murder charges to shoplifting when the property value is greater than $2000.
If you are charged in the magistrate court or municipal court, you do not have the right to a preliminary hearing, although probable cause is still required for the arrest, and you can make a motion to dismiss your charges based on a lack of probable cause.
How Do You Request a Preliminary Hearing in SC?
Your bond judge should 1) tell you that you have the right to a prelim and 2) provide you with a written form that you can fill out and return to request your preliminary hearing (this is required by SC Code § 17-23-160).
You should immediately fill out the form and return it to the address provided or give the form to your attorney so they can request the prelim on your behalf because there is a time limit beyond which you will lose your right to a prelim.
What Happens at a Preliminary Hearing?
The arresting officer or the chief investigating officer (it must be either the “affiant listed on the arrest warrant or the chief investigating officer for the case” pursuant to SC Code § 17-23-162) will testify as to why they charged you with the crime.
After their direct testimony, your attorney will have the opportunity to cross-examine the officer to show that there was no probable cause for the arrest.
If the judge agrees that there was no probable cause, your charges are dismissed. If the judge finds that there was probable cause, your case is “bound over” to General Sessions Court and the solicitor’s office will send it to the grand jury for indictment.
What Happens if You Win Your Preliminary Hearing in SC?
If the judge finds that there was no probable cause, your charges are dismissed. The court could also find that there is no probable cause as to the offense charged but reduce it to a lesser included offense.
This doesn’t necessarily mean that your case is over – the prosecutor can still send your case to the grand jury for indictment (although the grand jury is supposed to find probable cause before indicting a case, the prosecutor never gives them enough information to make an informed decision, and almost every case is indicted by the grand jury.
Stay in touch with your attorney after your charges are dismissed at the prelim until you find out whether your case will be direct-indicted or whether it is truly over.
What Happens if You Lose Your Preliminary Hearing?
If you lose your prelim, you lose nothing. Your prosecution will continue in General Sessions Court, and there is no “penalty” or negative effect on your case.
Should You Waive Your Preliminary Hearing?
Should you waive your preliminary hearing?
The prosecutor wants you to wave your prelim – they don’t want to take a chance on the judge dismissing your case, and they don’t want to spend any more time in the courtroom than necessary.
The officer wants you to waive your prelim – they don’t want to take the witness stand, and they are already annoyed that they are required to appear in court, sit, and wait for a hearing that may or may not happen.
The court wants you to waive your prelim – not necessarily because the judge cares one way or the other, but because it’s been a long morning, they want to be done with preliminary hearings, and the more hearings that are waived means the less time it takes to finish with preliminary hearing court.
Your attorney might want you to waive your prelim – if this is the case, you should follow the advice of your attorney who is familiar with the facts of your case. Why might your attorney want you to waive your one chance at a probable cause hearing, though?
The Wrong Reasons to Waive Your Prelim…
First of all, your attorney does not have the authority to waive your preliminary hearing – it is your right to insist upon or to waive, and your attorney’s job is to advise you as to whether you go forward or waive the hearing.
What are some “wrong” reasons to waive a preliminary hearing?
- You’re going to plead guilty anyway. Are you, though? If the court dismisses your charges for a lack of probable cause, or if the officer repeatedly fails to appear and the court dismisses your charges for failure to prosecute, are you going to plead guilty?
- There was definitely probable cause for the arrest, so there is no point. But isn’t there a point? If the officer makes one statement on the stand that is favorable to your case, doesn’t that make it worthwhile? What if the officer surprises you with testimony that does not add up to probable cause?
- We don’t want to rock the boat. We don’t want to make the prosecutor or cop mad, because we may not get a good deal later? Or, we don’t want to rock the boat, because it could affect the deals that other clients get? The truth is that prosecutors don’t give “good deals” to defense lawyers who don’t fight for their clients. You get “good deals” and dismissals by investigating, researching legal issues, and waiving nothing.
- We waive all prelims because they are a waste of time. A hearing that could result in the dismissal of your charges or favorable testimony from the officer is not a waste of time, and an attorney who waives all prelims is denying due process to all of their clients. Remember, it is your choice to go forward or waive your prelim, not your attorney’s.
Some Reasons Not to Waive Your Preliminary Hearing…
There are three very good reasons not to waive preliminary hearings:
- Your case could be dismissed for a lack of probable cause. Seriously, even attorneys who are terrible at cross-examination and didn’t prepare for their hearings will get a fair number of cases dismissed at prelims because, believe it or not, cops make arrests without probable cause all the time.
- Your case could be dismissed for failure to prosecute. If the officer does not appear at your preliminary hearing (and does not notify the court ahead of time), your case should be dismissed for failure to prosecute.
- Favorable testimony. Even when your case is not dismissed, the prelim is your attorney’s opportunity to cross-examine the officer under oath at a time when the prosecutor has not prepped the officer for their testimony. Any helpful statements the officer makes on the witness stand cannot be changed later, because the officer can be impeached with a transcript of their prelim testimony.
And remember, there is no downside to having a preliminary hearing. Best case scenario, your case is dismissed, and you are done. Worst case scenario, nothing happens, and your case continues…
If you have been charged with a crime in SC’s General Sessions Court, request a preliminary hearing and get an experienced criminal defense attorney on your case immediately.