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:
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).
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.
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.
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.
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.
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?
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?
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?
There are three very good reasons not to waive preliminary hearings: