A preliminary hearing in SC is a “probable cause” hearing where a magistrate will decide whether there was probable cause for your arrest.
If there was no probable cause for your arrest, 1) you should not have been charged in the first place, and 2) the magistrate should dismiss your charges at your preliminary hearing (or reduce the charges if there was probable cause for a “lesser included offense”).
We believe that preliminary hearings are a critical stage of many criminal defense cases – your case might be dismissed before you even go to trial. We routinely request prelims on behalf of our clients, we rarely waive prelims, and this is just one of many stages of your case where your charges might be dismissed if you hold firm and challenge the evidence against you.
Below, we will answer some frequently asked questions about preliminary hearings in SC and how we handle them for our clients.
How do I Request a Preliminary Hearing in SC?
The magistrate at your bond hearing is required by SC Code § 17-23-160 to 1) notify you of your right to request a prelim and 2) provide you with a form you can use to request your preliminary hearing.
You should provide this form to your attorney immediately, or, if you do not yet have an attorney, fill out the form and return it to the address provided to request your preliminary hearing so you do not miss the deadline.
Who Gets a Preliminary Hearing?
Every person who is charged with a general sessions level offense is entitled to a preliminary hearing in SC. This includes most charges that carry a potential sentence of more than 30 days, but it does not include offenses that are charged in the magistrate or municipal court.
What Happens at a Preliminary Hearing?
The arresting officer or the chief investigating officer for your case will testify as to what their probable cause was for your arrest. Your attorney will then cross-examine the officer to establish that there was no probable cause.
After the officer testifies, either side may or may not make brief arguments, and then the magistrate will decide whether there was probable cause to support the charges.
Am I Required to Appear at My Preliminary Hearing?
You have the right to be present at your preliminary hearing. Although you will not be permitted to testify, you should be present so you know what is happening in your case and so you can answer any questions your attorney may have for you.
You are not required to be present, however, and, if your attorney is present on your behalf, the court will go forward with the hearing.
What if the Prosecutor Doesn’t Have a Witness at the Prelim?
SC Code § 17-23-162 says that the “affiant listed on an arrest warrant or the chief investigating officer for the case must be present to testify at the preliminary hearing.” It is not enough for a supervisor or another officer with no personal knowledge of the case to simply read the warrant affidavit or incident report.
If the appropriate witness is not present, the court may 1) continue the case to allow the prosecutor to bring the right witness next time, or 2) dismiss the case for failure to prosecute – particularly if the officer simply failed to appear without notifying the court or defense counsel.
What Happens if Your Case is Dismissed?
If your case is dismissed for a lack of probable cause, it should be over. The prosecutor can, however, send your case to the grand jury for indictment after it has been dismissed at the prelim.
If this happens, you will need to stay in close contact with your attorney because we will need to arrange service of the indictment on you and confirm with the court that your bond is still in place. Don’t assume that your case is over until your attorney has confirmed that you will not be indicted.
What Happens if the Judge Finds Probable Cause?
If the court finds that there was probable cause for your arrest, you lose nothing. The magistrate will “bind your case over” to General Sessions for trial, and your case continues.
There is no downside to preliminary hearings in SC – even when you lose the prelim, your attorney may have obtained new information during the officer’s cross-examination or gotten critical admissions from the officer while they were testifying under oath.
What’s the Difference Between a Preliminary Hearing and a Grand Jury Indictment?
Every defendant in General Sessions Court must be indicted by the grand jury before their case can be brought to trial.
The grand jury, however, does not consider the evidence and realistically determine whether there was probable cause – you have no right to appear before the grand jury, an officer will read a short, conclusory statement to them about why you are guilty, the officer will not be subject to cross-examination, and almost all defendants are indicted when their case goes to the grand jury.
In a preliminary hearing, on the other hand, the court will hear detailed testimony from the officer, your attorney will have the opportunity to cross-examine the officer to point out inconsistencies in their testimony, and your case will be decided by a judge who has some experience and knowledge about what constitutes probable cause in a criminal case.
Can I Hire an Attorney Just for the Prelim?
You can retain an attorney solely for your preliminary hearing, and SC Code § 17-23-165 permits an attorney to represent you at your prelim without taking on the responsibility of your full defense.
Should You Waive Your Preliminary Hearing?
Everyone wants you to waive your preliminary hearing.
Many defense attorneys advise their clients to waive their prelims because “it’s a waste of time,” “they never get cases dismissed at prelims,” or “you don’t want to rock the boat.”
Cops want you to waive your prelim because they don’t want to wait in the courtroom for their turn to get grilled by your defense lawyer.
Prosecutors want you to waive your prelim because they don’t want to stay in preliminary hearing court, arguing case after case, any longer than necessary, and they don’t want to take a chance on your case getting dismissed.
Magistrates want you to waive your prelim because they want to move things along and finish the long list of preliminary hearings they have on their docket that morning.
The bottom line is preliminary hearings are inconvenient – for everyone but you.
What do we think?
Police arrest people without probable cause every day, and we get cases dismissed at preliminary hearings. We think that you should challenge every issue in your case and fight your charges at every moment and in every way possible. Our job is to win your case, and, with few exceptions, we do not believe that you should waive your preliminary hearing.
Can I Sue if There was no Probable Cause?
A lack of probable cause is one requirement in a lawsuit for wrongful arrest, but there are many other obstacles to liability when it comes to suing the government. In many cases, if your case is dismissed at your preliminary hearing, you will need to accept your win and move on with your life.
In some cases, there was a wrong for which you may be able to recover damages. We will give you our opinion, preserve any evidence that you may need to file suit, and refer you to civil rights or plaintiff’s attorneys when appropriate.
Questions About Preliminary Hearings in SC?
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.