Preliminary Hearings

A SC preliminary hearing is a “probable cause hearing” where the arresting officer will testify as to why he or she arrested you and attempt to establish probable cause for the arrest.

Every person charged with a General Sessions level criminal offense in SC has a statutory right to a preliminary hearing. Anyone who is charged with a 30-day misdemeanor in the magistrate or municipal court does not have a right to a preliminary hearing, although they can still challenge probable cause in a pretrial motion.

After the officer testifies for the state, your criminal defense attorney can cross-examine the officer to establish that there was no probable cause for your arrest. Then, the magistrate or municipal judge who conducts the hearing will either dismiss your case for lack of probable cause or will "bind it over" to General Sessions for prosecution.

If your case is dismissed at the preliminary hearing, the prosecutor can still send your case to the grand jury for indictment, which will "revive" your charges. In some cases, the solicitor will "direct indict" cases after they have been dismissed at preliminary hearings, but not always.

If your case is dismissed at the preliminary hearing, stay in close contact with your attorney until you find out what is going to happen next – in many cases, it’s over and you can then move on to get the arrest expunged.

In other cases, the prosecutor will direct indict you, and you will then need to coordinate with your attorney to avoid an arrest on the indictment:

• The new indictment will have to be served on you, which can be done at a court hearing to avoid arrest;
• The court may either 1) set a new bond; or 2) continue your original bond at the hearing; and
• Your bondsman will need to consent to continuing the original bond (they are not required to, but they usually do).

Usually, the answer to this question is absolutely not. Who benefits if you waive your preliminary hearing?

Consider this: If you go forward with your preliminary hearing and lose, you lose nothing – your case continues and there is no penalty to you for losing the prelim. On the other hand, if you win the prelim, your case could be over right then and there.

Officers don’t want to testify at preliminary hearings. Besides the possibility of their case being dismissed, they just don’t want to sit in court for half a day and then subject themselves to cross-examination by a defense lawyer.

Prosecutors don’t want to have preliminary hearings. They have thousands of cases coming through their office, and if every one goes forward with a preliminary hearing it costs the solicitor’s office time, money, and aggravation. Also, they don’t want your case to be dismissed…

Some defense lawyers don’t want to have preliminary hearings. Why?

If your criminal defense attorney doesn’t want to have a preliminary hearing in your case, it’s reasonable to ask “why?” What’s not a good answer?

• I don’t want to “rock the boat,” make the prosecutor or officer mad, and lose any deals we may have gotten… BS. You don’t “lose deals” by asserting your rights and defending your case. You get deals by fighting the charges, finding the holes in your case, and letting the prosecutor know that you are not going to lay down and make a conviction easy.
• “We don’t need a prelim” because you intend to plead guilty eventually or because your attorney already knows there is probable cause for the arrest. So what? Wouldn’t you rather take a chance on getting your case dismissed – and – find out what the officer would say if you did go to trial?
• “We waive all prelims” because we don’t have the resources to handle them or because they are “a waste of time.” BS again – any hearing that has a chance of resulting in a dismissal or that could gain information that we can later use against the officer is not a waste of time. And, any office that waives all prelims is engaging in a systematic denial of due process for all their clients.

Contrary to the many attorneys who tell their clients that preliminary hearings are “a waste of time,” there are many benefits to having a prelim and usually no downside. What are the main benefits?

• My case could be dismissed – even if it’s a long shot, you never know what the officer is going to say, and the testimony may establish that there is no probable cause. You just don’t know until the officer is on the stand…
• The officer may not appear – I have seen magistrates dismiss a case when the officer does not appear; I have also seen magistrates continue a case for the state the third time the officer did not appear. If the state is unable to prosecute your case because the officer blows off the preliminary hearing with no valid excuse, your case should be dismissed, and many cases are.
• It may be the only time that your attorney can cross-examine the officer before trial. At this point, the officer has not been prepped for testimony by the prosecutor. The testimony is more likely to be candid, and, if the officer is lying, it should be easier to catch him or her in the lie. Any testimony that is favorable to your case can be used later to impeach the officer if they attempt to change their story, and your attorney may be able to use the transcript of the hearing at later hearings or at the trial of your case.

In some cases, the state will indict your case before your preliminary hearing happens. It may have been unintentional, or it may have been a sneaky way to take away your right to a prelim. Either way, there is nothing that can be done about it and you no longer have a right to a preliminary hearing under SC law.

Preliminary hearings are an important part of an aggressive and effective defense, because, even if your case is not dismissed for lack of probable cause, this is our opportunity to hear what the evidence is in your case and to test the officer on the stand.

We routinely request preliminary hearings for our clients. If you have been arrested but have not yet retained an attorney, call the Thompson & Hiller Defense Firm at (843) 444-6122 or contact us online for a free consultation.