Hi, I’m Richard Waring, and I’m a criminal defense attorney in Charleston, SC. Maybe you’ve been charged with possession with intent to distribute marijuana or cocaine, robbery, or some other crime and your preliminary hearing is rapidly approaching. “What will happen there?” you ask yourself.
First off, the South Carolina Rules of Criminal Procedure provide guidance for us on Preliminary Hearings. Specifically, if you’ve been charged with a crime that is not triable in magistrate’s court (i.e. all felonies and more serious misdemeanors), then you have a right to a preliminary hearing. And a Preliminary Hearing (sometimes referred to as a probable cause hearing) is designed specifically for the magistrate judge to determine whether there is enough probable cause for the case to proceed with your charges.
Here’s the catch though, you have to request it within 10 days from when you were notified of your right to request a preliminary hearing. Typically, this means that you’ll be given notice at your initial bond hearing. Then, pursuant to the SC rules of criminal procedure, a hearing is supposed to take place within 10 days. However, keep in mind that the court system is incredibly backed up due to the pandemic, so you’re preliminary hearing most likely will not be taking place within 10 days from when you request it. On the flip side, if the prosecutor indicts your case in the meantime before you’ve had a chance to have your preliminary hearing, you lose the right to have that hearing. That’s where a good criminal defense attorney will reach out to the prosecutor and kindly ask them to hold off for a little while from indicting you until you’ve had a chance to have your hearing.
Now, at the actual preliminary hearing, it is specifically the state’s job to prove there is probable cause to proceed with your case. Therefore, they are responsible for calling witnesses, usually just the lead officer on the case, to establish probable cause through testimony. After the prosecutor questions the officer, you (or ideally your defense attorney if you have one), will be able to cross-examine the witness next. Keep in mind, there is no jury at this hearing. It is a much more low-key setting than trial is, but it is still very important, and it will be your first taste of what it looks like to have witnesses testify on your case.
The magistrate judge will then decide to either dismiss the case for lack of probable cause or proceed with the case. Keep in mind that probable cause doesn’t mean that you are guilty of your charges. It just means basically that there is enough proof, supported by evidence that you committed a crime. As I discussed in a previous video on what beyond a reasonable doubt means, it’s important to remember that if your case goes to trial, the prosecution will have the much higher burden of proving you guilty beyond a reasonable doubt. So, don’t get too bent out of shape if the judge rules that there is enough probable cause and your case gets “bound over for trial” as they say.
Now, another important thing to keep in mind is that not all defendants request preliminary hearings. Sometimes, defendants and their attorneys decide not to. A few reasons to actually have the hearing would be to afford your attorney the opportunity to meet with the lead officer on your case and ask him questions, and of course to ask him questions under oath. Sometimes, things can actually be worked out at this early stage in the game between your attorney and the police and prosecution. Another reason, is that, on occasion, a magistrate judge will determine that there is not probable cause to move forward with your case, and they will dismiss the case. You and your criminal defense attorney will have to make the call on whether it makes sense or not to waive your right to your preliminary hearing or not, but there can certainly be advantages to having them.
Alright, folks, that’s it for now on preliminary hearings. If you’re in need of a criminal defense attorney in Charleston, SC, Summerville, Berkeley County or wherever, feel free to give me a call anytime and we can go over the particulars of your situation. Until then, best of luck.
