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What is a Preliminary Hearing?

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In South Carolina, Rule 2 of the South Carolina Rules of Criminal Procedure guarantee the right of anyone accused of a crime beyond the scope of Magistrate and Municipal Court the right to a preliminary hearing. You must request the preliminary hearing within 10 days of your arrest, and your request must be in writing. You will be notified of your right to the hearing at your arraignment/bond hearing and will most likely be given a copy of the paperwork to request the hearing.

At a preliminary hearing, the State must prove that probable cause existed to issue the arrest warrant. The defense does not typically put up evidence or witnesses. The defense can, and hopefully will, cross examine the State’s witnesses.

Essentially, the preliminary hearing is an avenue to attack the state’s case and try to show that no probable cause existed to issue the warrant that was issued. In my experience, the odds of a case being dismissed at a preliminary hearing varies widely from judge to judge. I have had some judges easily toss out a case (even an attempted murder case), and I have had judges literally say “I do not see any probable cause in this case, but I will bind it over to General Sessions anyway and let them figure it out.”

A major advantage of a preliminary hearing in South Carolina is to see the State’s case. It’s a lot like looking at the other player’s cards while playing a game of poker. It gives an experienced defense lawyer the ability to weigh the strengths and weaknesses of the state’s case before trial time. I believe that although optional, a preliminary hearing is a great way to evaluate the state’s case and put yourself in a better position when it comes time to prepare for trial.

 

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