South Carolina’s Constitution requires that every person must be indicted by the grand jury before the state can take them to trial – is there really a point to it anymore?

I have heard judges inform groups of defendants waiting to plead guilty that they should waive their right to indictment because “the grand jury would indict a ham sandwich.” You’d be hard-pressed to find an attorney in the state who does not agree that SC’s grand jury process is simply a “rubber stamp” for prosecutors.

It’s a secret proceeding that has no oversight and does not allow for the presentation of evidence by the defense, and nearly every case that is presented to the grand jury results in an indictment. It is long past time for South Carolina to fix our broken grand jury system and pass reforms that will make the grand jury meaningful.

What is the Grand Jury in SC?

The purpose of the grand jury, imported from England’s justice system, is to allow everyday citizens to decide whether a person should be charged with a crime.

SC’s grand jury is made up of 18 people, 12 of which must agree to “true bill” an indictment, allowing it to go forward to trial. It is a “secret” proceeding – the defense is not notified or given the opportunity to appear. The defense is not entitled to transcripts, recordings, and, in most cases, has no idea what was said or who appeared to provide testimony.

What’s Wrong with SC’s Grand Jury System?

It’s broken, meaningless, and serves no purpose other than to comply with the constitutional requirement that we have one.

According to the Greenville News, it is extremely rare for a no-bill to happen:

• From 2013 to 2015, the Greenville County grand jury “reviewed” 13,000 charges and returned no bills on five of them;
• In 2016, there were 4469 true bills and 18 no bills; and
• In Sumter County, from 2014 to 2016 there were 2936 true bills and six no bills.

A grand jury may return more than 400 indictments in a single eight-hour day – that’s less than one minute per indictment. Are they really considering the evidence in each case?

One Spartanburg County judge said that, in 16 years on the bench, he has never been asked a single question by a grand jury…

In most cases, an office or investigator will read an extremely brief summary of what they say a defendant did –neither the arresting officer nor any person with personal knowledge of the facts of the case is likely to be present. How could the grand jury return a no bill when they have no information about a case other than law enforcement’s statement that they think the crime happened?

What About Preliminary Hearings?

SC provides for a probable cause determination at a preliminary hearing, where the defendant is entitled to appear and cross-examine the witness – for the most part, it is a meaningful process that can result in bad cases getting dismissed.

But, SC law also allows the prosecutor to take a case to the grand jury, after the preliminary hearing court has found that there is no probable cause, and allow the grand jury to indict the case (because they are not hearing the evidence that the preliminary hearing court judge heard).

What’s the Solution?

I can think of two:

• Restructure the grand jury process to make it meaningful. Require that a record of the proceedings be made available to the parties, allow the defense to appear to present evidence to contest probable cause, and allow the grand jurors to actually hear the evidence on both sides before making their decision; or
• Do away with the grand jury and make the preliminary hearing process more meaningful – probable cause hearings should be presided over by a circuit court judge with a law degree, not a magistrate or municipal judge. And, if a judge decides there is no probable cause, the case is over – as it should be.

SC Criminal Defense Lawyer in Charleston

Grant B. Smaldone is a criminal defense attorney in Charleston, SC who believes in the justice system and believes it should be fair to all. If you’ve been charged with any crime in Charleston, SC, call now at (843) 808-2100 or send a message through our website to set up a free consultation about your case.