Should you waive your preliminary hearing if you are charged with a crime in SC?

I’m amazed at how many attorneys routinely advise their clients to waive one of their most important rights when charged with a crime – preliminary hearings. Or even worse, law firms or public defender offices that refuse to request prelims on behalf of clients or waive all preliminary hearings regardless of what their clients want…

If you are charged with a crime in General Sessions Court, you must immediately request a preliminary hearing, or you will lose your right to have one. Once you’ve requested it, why would you waive your hearing?

You should know 1) what a preliminary hearing is and 2) why everyone wants you to waive it before you make that decision.

Below, I’ll go over the basics of preliminary hearings in SC including:

• What a preliminary hearing is in SC,
• What happens at a preliminary hearing, and
• What you should consider before deciding to waive your prelim.

What is a Preliminary Hearing?

A preliminary hearing is a probable cause hearing, where a magistrate judge hears testimony from the arresting officer or chief investigating officer in your case to determine whether there was probable cause for your arrest.

If there is no probable cause, your case is dismissed. If there is probable cause, your case moves forward, and you lost nothing by making them prove it…

Who Gets a Prelim?

Every person who is charged with a crime in General Sessions Court in SC has the right to a preliminary hearing, but you must request the hearing immediately after your arrest, so you do not miss the deadline.

You cannot request a preliminary hearing if you are charged with a crime in the magistrate or municipal court. Although probable cause is still required for your arrest to be valid, in the lower courts you will need to argue a lack of probable cause in a pretrial motion to dismiss or a directed verdict motion after the state has presented its case in your trial.

Requesting the Preliminary Hearing

SC Code § 17-23-160 requires your bond judge to 1) tell you that you have the right to a preliminary hearing and 2) give you a written form that you can use to request your prelim.

Fill out the form and return it following the instructions or immediately give it to your attorney so your attorney can request the prelim on your behalf – if you miss the deadline, you will lose your right to a prelim.

The court will schedule your preliminary hearing date and notify you of the date and time.

Everyone Wants You to Waive Your Prelim

When you arrive at your preliminary hearing, you may find police officers, detectives, defense lawyers, defendants, and a prosecutor or two talking before the hearing begins. You may also find that the officer, prosecutor, court, and possibly even your attorney want you to waive your preliminary hearing.

For some, the standard operating procedure is for the attorney to briefly discuss the case with the officer before waiving their client’s prelim and heading back to the office. Other attorneys may discuss the case with the officer or prosecutor, but, in most cases, will not waive prelims – a brief conversation is no substitute for testimony under oath.

Officer’s Direct Examination

When it is your turn, the prosecutor will call the officer to the stand and ask him or her to testify as to why they arrested you and charged you with the crime. They don’t need to testify about every detail of the case – only the location to establish jurisdiction and enough facts to support probable cause for the arrest.

In most cases, the officer will be the only witness at a preliminary hearing in SC. SC Code § 17-23-162 mandates that the state’s witness must be the “affiant listed on the arrest warrant or the chief investigating officer for the case.”

If the state attempts to call a different witness with no personal knowledge of the case, your attorney should object and move to dismiss the case for failure to prosecute (although the court may grant a continuance for the state to get the right witness for the next hearing).

Officer’s Cross-Examination

After the officer testifies, your attorney (or you, if you are attempting to do this without counsel) will have the opportunity to cross-examine the officer.

In some cases, this is a golden opportunity to get the officer to testify – under oath, on the record, and without having been prepped by your prosecutor – about things that may be helpful in your defense.

Their testimony may result in the dismissal of your case for a lack of probable cause, or it may result in favorable statements by the officer that they cannot change later because your attorney can get a transcript of their testimony to impeach the officer with at trial.

Court’s Ruling on Probable Cause

After the officer or chief investigating officer testifies, the attorneys for each side may or may not make arguments as to whether there was probable cause.

If there was no probable cause for the arrest, your attorney will make a motion to dismiss your case and explain their reasoning to the magistrate. If probable cause is clear, your attorney might just say, “no motion, your honor,” and sit down. In this context, there is no point in arguing a motion that will not be granted and losing credibility with the court and officers.

The judge will then either dismiss the case for a lack of probable cause or “bind the case over” to General Sessions Court for indictment and trial.

What Happens if You Lose Your Hearing?

If you lose your hearing, you lose nothing.

Your case continues as it was, but, if the officer made any statements that are helpful to your defense, your attorney can get a transcript of the proceedings and use those statements against the officer during your trial.

What Happens if You Win Your Hearing?

If you win your preliminary hearing, your charges are dismissed. The court could:

• Dismiss all charges,
• Dismiss some charges but not others, or
• Reduce your charges to a lesser included offense.

At this point, your case may or may not be over – the prosecutor can still seek a direct indictment if they choose, although, if your case was dismissed for a lack of probable cause (as opposed to failure to prosecute because the officer did not appear at your hearing), they will have a hard time proving their case.

After your case is dismissed, stay in touch with your attorney until you find out if your case is over or if the prosecutor is going to have the grand jury indict you.

Should You Waive Your Preliminary Hearing?

Should you waive your preliminary hearing?

In some cases, everyone wants you to waive your prelim – the officer, the prosecutor, the judge, and even your attorney. Why?

The officer doesn’t want to sit in the courtroom waiting to testify at your hearing. They also do not want to be subjected to cross-examination by your defense lawyer.

The prosecutor wants to be done – they want to get through the morning’s prelims as quickly as possible and get back to their office.

The judge wants to be done, and they are not looking forward to a long morning (or day) of preliminary hearings. Each case that is waived is 20 minutes saved.

Are you wasting their time?

Maybe, but it’s not their case. Their lives, their jobs, their families, their freedom, their finances, and their criminal records are not on the line. Yours is.

Waste their time. Do everything possible to get your case dismissed or reduced. If you are convicted, make them work for it and make them pay for it. It’s their job, and no person accused of a crime should make it easier for them…

Why You Should Waive Your Prelim

If your attorney is advising you to waive your prelim, you should follow your attorney’s advice. Your attorney knows your case better than anyone, and they may have a very good reason to waive your hearing.

For example, if your case has been indicted, you no longer have a right to a preliminary hearing – if you don’t waive it, the court will find that you are no longer entitled to a hearing and move on.

Why You Probably Should Not Waive Your Prelim

What are not good reasons to waive your prelim?

• To save the court, the police, and your attorney’s time. Any criminal defense attorney who says that prelims are a waste of time either 1) has not handled many prelims or 2) just doesn’t care. We get cases dismissed at prelims. Often. Therefore, they are not a waste of time.
• There was probable cause for your arrest. Maybe there was. Maybe the officer doesn’t quite hit it in their testimony. Maybe they establish probable cause, but your attorney gets some favorable testimony on the record anyway. You don’t know until you have the hearing.
• You are going to plead guilty. You have the right to plead guilty or to demand a trial. But, if your case is dismissed at the prelim, you are not going to plead guilty. Or, if the officer provides some favorable testimony, your plea offer may improve. And, if nothing improves after the prelim, you can still plead guilty with no penalty for having had your hearing.
• Don’t rock the boat. If an attorney says to you, “we can’t rock the boat because we won’t get a good deal from your prosecutor,” something is wrong. Defense lawyers don’t “get good deals” by giving the prosecutor what they want. They get good deals or dismissals by fighting at every stage of your case. Rock the boat. When necessary, sink the boat.

Can I Hire a Lawyer Just for the Preliminary Hearing?

You can hire an attorney for the prelim only. SC Code Section 17-23-165 makes this clear:

The appearance by an attorney on behalf of a defendant in a preliminary hearing shall not in and of itself obligate that attorney to continue the representation of that defendant beyond the preliminary hearing.

This might make sense in a case where there is clearly no probable cause, and your attorney can show it at the hearing with a minimum of preparation. In most cases, however, you should fully retain your attorney so they can begin investigating, negotiating, and preparing your case for trial rather than simply appearing at one hearing in your case.

Preliminary Hearing Lawyers in Charleston, SC

Grant B. Smaldone is a criminal defense lawyer based in Charleston, SC whose law practice is focused on state and federal criminal cases in SC including preliminary hearings in SC state court.

If you’ve been charged with a crime in the Charleston or Myrtle Beach areas, call now at (843) 808-2100 or contact us through our website for a free consultation.