If one is arrested for a "general sessions" offense in South Carolina, certain Federal and State constitutional rights follow the Defendant. Among these are rights to the effective assistance of counsel, the presumption of innocence, and a right to a fair and impartial trial by a jury of one's peers. The right to a preliminary hearing in general sessions cases is not a constitutional right but a statutory right.
S.C. Code Ann. Sec.17-23-160 provides that a person arrested for a general sessions offense must be given notice of a right to request a preliminary hearing at his/her bond hearing both orally and in writing. The burden is then on the accused to formally request this hearing.
Arrest warrants must be sworn to under oath before a magistrate. As such, our law requires the "affiant" to appear at the preliminary hearing to testify as to the "probable cause" for an arrest and then be subjected to cross examination by the Defense.
Preliminary hearings can be very important to the Defendant. For one, this is usually the first time the Defense will have the opportunity to listen to the State's case and also it will be the first time to test the State's case in a court proceeding.
Following the testimony of the affiant and subsequent cross examination, the presiding judge will either "bind" the case over for trial or dismiss the case without prejudice. If the case is dismissed, the State will then have the opportunity to present its case to a grand jury for indictment. What this means is that even though the case may be dismissed at the preliminary hearing, the potential remains for the case to continue to trial if the grand jury "true bills" an indictment.
If you have been charged with a criminal offense in the Low Country of South Carolina, contact me today to schedule a confidential interview. My office number is (843) 761-0610 or I can be reached through the contact page on this website.
Brady Vannoy is an AV Preeminent rated lawyer who defends criminal cases in Charleston, Berkeley, Dorchester and other areas of South Carolina. He can be reached at (843) 761-0610 or through the contact page on this website. www.vannoylawoffice.com