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A Criminal Defense FAQ

  1. Question: My loved one can't make bond. What can you do?
  2. Question: What is a preliminary hearing?
  3. Question: If the charge is dismissed at the preliminary hearing, is that the end of the case?
  4. Question: What is a grand jury?
  5. Question: How can we find out what evidence the state has?
  6. Question: What potential sentence am I looking at?
  1. Question: My loved one can't make bond. What can you do?
    Answer: A bond reduction hearing can be requested in the Circuit Court to see if a judge will change the bond that was set by the magistrate. Every person has the opportunity to have a bond hearing. Once a bond hearing is held, another bond hearing can be held only if we can establish a change of circumstances, which generally means some fact that was not available to the court at the time of the initial bond reduction hearing.
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  2. Question: What is a preliminary hearing?
    Answer: If you are charged with a general sessions offense in South Carolina, you have a statutory right to a preliminary hearing. To exercise that right, the preliminary hearing (more commonly called a "prelim") must be requested at the bond hearing or within 10 days of the bond hearing.

    The most common form used to request a prelim asks who your lawyer is. You do not have to have a lawyer to request or hold the prelim and if your 10 days are almost up, leave the space asking for your attorney's name blank and send in the request. The court will want you to have a lawyer before the prelim and you should get one as soon as possible so he/she can prepare, but if you are unsure, request the hearing. Your lawyer can waive the request later if that is determined to be best.

    The prelim is a hearing to determine if there is sufficient evidence to warrant trial; in other words, is there enough evidence that you might be guilty (probable cause)? It is not the trial. You do not get to testify or present witnesses. The court hears from the affiant, usually the arresting officer, or the chief investigating officer and listening to just that decides whether the case should be allowed to continue (bound over). Your attorney does get to question the state's witness. If the judge decides there is insufficient evidence, the charge could be reduced or the case could be dismissed. However, the magistrate is not the final decision maker as his/her dismissal is without prejudice. The solicitor can submit the case to the grand jury and the indictment it returns, even if it reinstates the charges, is binding, no matter what the prelim judge said.

    The preliminary hearing is usually informal. You may not have to be present (an issue to discuss with your lawyer). A solicitor may present the case to the court, but often the officer appears unrepresented. The rules of evidence are relaxed. For instance, hearsay is admissible, which would not be permitted at the trial. (Hearsay is when a witness repeats what someone else said.)

    A preliminary hearing can be a valuable tool in the appropriate case, for discovery or to point out weaknesses to the solicitor or officer. A prelim can also be a mistake, annoying and unnecessary to the court, or it could warn the state of problems better saved for trial. Whether the hearing should be held is a matter to be decided in each case by you and your lawyer.

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  3. Question: If the charge is dismissed at the preliminary hearing, is that the end of the case?
    Answer: Unfortunately, no. The solicitor can still take the matter to a grand jury, although generally that is not done.
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  4. Question: What is a grand jury?
    Answer: A grand jury is a body of 18 citizens, at least 12 of whom have to be present for the grand jury to proceed. The grand jury meets on a monthly basis and decides whether an indictment should be presented. To make that decision, it meets in secret and hears evidence only from the state. Many people consider the grand jury to be a "rubber stamp." If the case is no-billed by the grand jury, that is the end of the matter.

    If the case is true-billed, it means the matter is continued on and we will have to face it in court.
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  5. Question: How can we find out what evidence the state has?
    Answer: Rules for criminal procedure in South Carolina include one that permits discovery. The government will have to provide us copies of any documentary and physical evidence it has. In short, we would get the police reports and tapes, if there are any, which would be ours to copy and review.

    This rule is reciprocal, so if we were to develop any evidence we wanted to introduce, we would have to provide a copy of it to the government.
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  6. Question: What potential sentence am I looking at?
    Answer: While we need to know the exact charge, generally South Carolina crimes are broken down by class as follows:
    • Class A felony — Not more than 30 years
    • Class B felony — Not more than 25 years
    • Class C felony — Not more than 20 years
    • Class D felony — Not more than 15 years
    • Class E felony — Not more than 10 years
    • Class F felony — Not more than five years
    • Class A misdemeanor — Not more than three years
    • Class B misdemeanor — Not more than two years
    • Class C misdemeanor — Not more than one year
    Any crime that carries 20 years or more is a "no parole" offense. In other words, 85 percent of any active sentence that is given must be served and there is no parole.

    Some crimes carry mandatory minimum penalties. It is necessary to know the specific crime to know whether it carries a mandatory minimum sentence.

    In addition to the potential for an active sentence as noted above, there are collateral consequences, which could include, depending on the offense, mandatory sex offender registration, a declaration of being a sexually violent predator (which could subject a person to civil commitment proceedings that could potentially result in custody for life), mandatory registration as a child abuser, loss of driver's license and loss of other substantive rights.
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