In light of recent events across the country, some people have asked me about South Carolina’s process involving a Grand Jury. In South Carolina Constitution, article I section 11 states that “no person may be held to answer for any crime the jurisdiction over which is not within the magistrate’s court, unless on a presentment or indictment of a grand jury of the county where the crime has been committed…” Essentially, nobody can proceed to a jury trial in Circuit Court without having been indicted by the grand jury of the county the crime was committed in first.
If a plea agreement was reached in a case before the grand jury has indicted the defendant, the person pleading guilty can still plead guilty if they wish to do so. If they wish to plead guilty and waive their right to have the grand jury of their county hear the case, that is known as a “waiver plea”. In this case, the defendant initials on their sentencing sheet that they do not wish for the grand jury to hear their case. The judge will also ask them, on the record, if they wish to proceed without the grand jury hearing the matter.
Who makes the case to the grand jury?
In South Carolina, unlike many other jurisdictions, the person that will traditionally make the case to the grand jury is the chief investigating police officer/detective. Other states traditionally have a prosecutor speak to the grand jury, but that is not the case in South Carolina. A prosecutor’s involvement with a grand jury is essentially putting a bunch of folders in a box and then having their secretary call the officers involved to tell them when to be at court. (Trust me, I’ve done it).
Do all General Sessions cases have to be heard by the grand jury of my specific county?
Well, no. Absent a waiver of presentment to the grand jury, all cases not within magistrate court jurisdiction have to be presented before a grand jury- we’ve already covered that. And the grand jury must be the grand jury of the county that the offense occurred in- with one big exception: the State Grand Jury.
The State Grand Jury was created by an amendment to the South Carolina Constitution in 1988. The State Grand Jury is a grand jury based in Columbia, SC, that hears specific types of offenses. They have jurisdiction throughout the entire state of SC, and the types of offenses they hear are usually prosecuted by the Attorney General’s Office. These offenses include narcotics of multi-county significance and obscenity offenses, public corruption, and election fraud. Jurisdiction has been broadened to include gang crimes, environmental crimes, computer crimes, terrorism and securities fraud. I refer to State Grand Jury cases as “almost federal” cases, as in, they prosecute crimes that are also often prosecuted by federal law enforcement and often heard in federal court.A good resource to use when reading about the State Grand Jury is the Attorney General’s website- http://www.scag.gov/criminal-prosecution-division-2#ixzz3MAnVTFZi
What if a Grand Jury does not indict my case? Is that likely to happen?
If twelve out of eighteen grand jurors agree that there is probable cause to move forward on your case and send it to trial, the indictment is said to be “true billed”. If less than twelve find probable cause, it is considered to be “no billed” and the case is essentially dead. In my years as a prosecutor and as a public defender, I have never seen a case no billed. That does not mean that it doesn’t happen- it can and has happened in the past. As a defense attorney, I know that there are many legal defenses and avenues to attack a case. Counting on a grand jury to return a no bill on your case is not one- you are probably more likely to win the Powerball.