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Preliminary Hearings - What They Are, 6 Things You Need To Know



Preliminary Hearings - What They Are, 6 Things You Need To Know

In South Carolina Criminal Courts, all Defendants charged in General Sessions Court (crimes that carry 30 days or more) are entitled to a preliminary hearing. What is a preliminary hearing? This article will outline the six things you need to know about them. 


Probable Cause

A preliminary hearing is a hearing to determine whether there is probable cause to move forward in the process after an arrest. Often, the same judge that signed the arrest warrant will be the judge deciding the preliminary hearing. 


The difference is that only the officer is present when the arrest warrant is signed. At the preliminary hearing, the same facts are presented, but the defense lawyer has the right to cross-examine the officer. 


Hearsay Allowed

The rules of evidence are specifically amended so that hearsay is allowed at preliminary hearings. Only the officer testifies at the preliminary hearing, and the officer testifies to their entire investigation, including witness and defendant interviews. 


If there is a victim in the case, the victim does not need to be present; the officer will testify to the victim’s version of events.


No Evidence From the Defense

The Defense can cross examine the officer, but the Defense may not present any evidence or testimony. The Defendant may not testify in their own defense. All arguments must be advanced through the use of cross-examination and motions. 


Time is of the Essence

A Defendant only has 10 days from the day of arrest to request a preliminary hearing. If a Defendant does not request a preliminary hearing within 10 days, the right to a preliminary hearing is given up. 


Right, not Requirement

A Defendant has a right to a preliminary hearing, but a preliminary hearing is not required. If a Defendant does not show up to their preliminary hearing, the right is waived, but no bench warrant is issued. 


A Defendant is not required to appear at their preliminary hearing. They can either waive the preliminary hearing, or have their attorney appear on their behalf. 


Slim Chance of Success

Very few cases get dismissed at the preliminary hearing. Defendants are often excited about their preliminary hearing because it is usually the first court hearing after their arrest. But many Defendants have unreasonable expectations about what will happen at their preliminary hearing. 


A tiny percentage of cases are dismissed at the preliminary hearing, and the overwhelming majority of cases are “bound over,” meaning allowed to continue past the preliminary hearing. 


Usually the only cases dismissed at the preliminary hearing are those where the officer made a technical mistake in the law in their charging decisions. 


Not the Final Decision

When a case DOES get dismissed at the preliminary hearing, it does not necessarily mean the case is over. The Solicitor has the option to charge the Defendant via direct indictment with the grand jury. If the Solicitor decides to directly indict the Defendant, the case resumes after indictment. 


While a preliminary hearing is exciting because it’s the first chance a Defendant has to challenge the evidence against them in court, it is a highly technical hearing where it is essential to have a good lawyer. 


At Erin Bailey Law, we routinely handle preliminary hearings for clients. You only get one shot at a preliminary hearing, so you need to go into it armed with an attorney who is prepared to fight your charges with all available strategies.

 

Learn more about our practice areas and criminal defense lawyers, or get in touch with the Erin Bailey Law team today.


This post is offered for general information only and is not legal advice. Our lawyers must make a case-by-case assessment of any claims. Results may vary depending on the facts involving any case.


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