Preliminary Examinations

Rule 2, South Carolina Rules of Criminal Procedure (SCRCrimP) gives defendants charged with offenses beyond the jurisdiction of magistrate and municipal courts certain rights to preliminary hearings, but differs from the statutory procedure in several important respects. The requirements of the rule are briefly summarized as follows:

1. Notice of Right to Preliminary Hearing

The rule requires that the defendant be informed of his right to a preliminary hearing both orally and in writing. If the offense is bailable, the notice must be given at the bond hearing. If the offense is non-bailable, the notice must be given him no later than would be required if the offense were bailable. S.C. Court Administration Form SCCA/512 must be given the defendant at the bond hearing, or, in the case of non-bailable offenses, no later than would be required if the offense were bailable. This form provides both the required written notice, and the simple form upon which the defendant may request the preliminary examination, as required by the rule. You should note at Item 3 of the Checklist for Magistrates and Municipal Judges that the defendant was given a copy of Form SCCA/512. This is the only means you have of checking yourself to see that proper notice was given the defendant. In addition, oral notice of rights to a preliminary hearing must be given the defendant at this time. So that you can be assured that the proper written and oral notices are given all defendants charged with general sessions court offenses, you should instruct the jailer to bring all such defendants before you when you appear to hold bond hearings. The defendants charged with non-bailable offenses would not be given bond hearings, of course, but could be given notice of their rights to preliminary examinations at what many magistrates and municipal judges call "first appearance hearings". Since a magistrate is required to be physically present at a detention facility at least twice in a twenty-four hour period, every defendant entitled to notice of a preliminary hearing would be informed of his rights within a day of his arrest, if incarcerated in a county detention facility.

Section 17-23-162 provides that "The affiant listed on an arrest warrant or the chief investigating officer for the case must be present to testify at the preliminary hearing of the person arrested pursuant to the warrant."

2. Effect of Indictment on Request for Preliminary Examination

Rule 2(b), SCRCrimP states that the preliminary examination shall not be held if the defendant is indicted by a grand jury or waives indictment before the preliminary hearing is held.

3. Waiver of Right to Preliminary Examination

If the defendant fails to make a timely request for a preliminary examination, (see paragraph 4, below) he is deemed to have waived his right to request such hearing. Previously, if the defendant failed to appear at the hearing, the defendant's right to the preliminary examination was deemed to have been waived. Rule 2(b), SCRCrimP now provides, however, that: "The defendant may appear [either] by counsel or in person or both."

4. Time in Which Request for Preliminary Examination Must Be Made

The request for a preliminary hearing must be made within ten (10) days after the defendant is given notice of his right to a preliminary hearing. The request need not be on the form (SCCA/512) provided, but it must be in writing. Failure of the defendant to make a timely request will result in a waiver of his right to request such a hearing.

5. Time When the Preliminary Hearing Must Be Held

The preliminary hearing must be held within ten (10) days following the request. The statutes establishing the preliminary hearing procedure, which were ruled unconstitutional by the S.C. Supreme Court in State v. Keenan, 278 S.C. 361, 296 S.E.2d 676 (1982), gave the defendant twenty (20) days, or up to ten (10) days before the commencement of the next term of General Sessions Court, to make his request. Rule 2(b), SCRCrimP, established a much less confusing method of computing the time within which to hold the preliminary hearing, and must be followed, instead of the statutory procedure. "Any delay in the holding of a preliminary hearing shall not be grounds for delay in the prosecution of the case in the Court of General Sessions." Rule 2(e), SCRCrimP.

6. Purpose and Scope of Preliminary Examination

The purpose of a preliminary examination is to determine if the State can show that there is probable cause to believe that the defendant committed the crime with which he has been charged, to warrant the defendant's detention and trial. In order to show probable cause, the State's case must be based on something more than the honest suspicions of law enforcement officers. The State must present reasonable grounds for showing the crime was committed and that the defendant committed it. The facts presented must be sufficient to persuade a reasonable man that the accused committed the crime charged. The rule does not provide for the preliminary examination as a discovery tool or "fishing expedition" for the defendant to learn the State's evidence. The defendant is given discovery opportunities in criminal cases by Rule 5, SCRCrimP, which allows the defendant to inspect and copy certain information held by the prosecution, and vice versa.

7. Right to Counsel at Preliminary Examination

A preliminary examination is a critical state in a criminal proceeding. Thus the defendant should have the opportunity to obtain counsel or have such appointed before the examination. State v. Taylor, 255 S.C. 268, 178 S.E.2d 244 (1970). However, the failure of a defendant to obtain or be given counsel in time to request a preliminary examination does not necessarily bar a higher court from obtaining jurisdiction or prejudice the defendant. Sanders v. South Carolina, 296 F Supp. 563 (D.S.C. 1969).

8. Notice to Victim to Attend

Upon scheduling a preliminary hearing in a case involving a victim, §16-3-1525(K) requires that the summary court judge reasonably must attempt to notify each victim of each case for which the defendant has a hearing of his right to attend. § 16-3-1525 (N) requires that notification may not be only by electronic or other automated communication or recording. After three such unsuccessful attempts, personal contact with the victim should be attempted.

9. Procedure in a Preliminary Examination

The rules of evidence, other than privileges such as attorney-client privilege, are not applicable to a preliminary hearing. Rule 1101(d)(3), SCRE.

The State must show probable cause as to each element of the crime charged. Any valid objection by the defense may be raised. Other than the discovery rights given defendants by Rule 5, SCRCrimP, the defendant may not inspect the State's evidence. [See also State v. Flood, 257, S.C. 141, 184 S.C.2d 549 (1971), and State v. Miller, 289 S.C. 316, 345 S.E.2d 489 (1986).]

The magistrate or municipal judge begins a preliminary examination with the reading of the charge against the defendant. The defendant does not plead to the charge nor is he required to make a statement or say anything at all at the hearing. The defendant is not allowed to offer evidence on his behalf since the examination is used only to determine if the State can show probable cause. At the beginning of the preliminary examination or at any time prior to it, the defendant may demand a change of venue or make a motion that the judge disqualify himself.

After the charges have been read, the State presents its evidence of probable cause. The State's evidence is presented by a law enforcement officer or the solicitor. The magistrate or municipal judge does not present the State's case or give the appearance of prosecuting the defendant. The magistrate or municipal court judge may not examine the accused during this proceeding. The state may present physical evidence and witnesses. The State has the burden of proving probable cause, but it is not required to call all of its witnesses or produce all of its evidence. See State v. Cunningham, 275 S.C. 189, 268 S.E.2d 289 (1980). The defendant has the right to cross-examine any of the State's witnesses. If he chooses to cross-examine a witness, his voice may be used by the witness to identify him. State v. White, 243 S.C. 238, 133 S.E.2d 320 (1963). The testimony of the State's witnesses on cross-examination is not admissible in subsequent proceedings but may be used at trial to impeach that witness on prior inconsistent statements. Again, the defendant is not allowed to offer evidence or make any sworn statements at the preliminary examination. The court must either make an audio recording of the preliminary hearing, or write down the statements of the witnesses. If the court writes down the witness testimony, the judge should have all witnesses sign this record.

After the state's evidence has been presented, the defendant argues to the magistrate or municipal judge that probable cause does not exist. The state may then argue that there is probable cause and if such an argument is made, the defendant may reply to it. If the magistrate or municipal judge is not satisfied that probable cause has been shown, he must discharge the defendant from custody, meaning that he/she must be released from incarceration, provided the defendant has no other charges pending which require incarceration. Although the magistrate or municipal judge is required to discharge the defendant from custody, this is not a final determination of the charge. Such a discharge is not an acquittal and jeopardy does not attach. The charge may still be submitted for grand jury consideration and the defendant indicted after such consideration. Until such time, the defendant is bound by all the remaining terms of his bond, including appearance at trial, until the case is discharged or dismissed in the Court of General Sessions. Op. S. C. Atty. Gen., January 31, 2013.

If the magistrate or municipal judge is satisfied as to the state's showing of probable cause, the defendant is bound over for trial and is either released on bail if the offense is bailable, or committed to jail to await trial. After the preliminary examination has been held, the magistrate or municipal judge should forward all papers relating to the case immediately to the clerk of court. These papers (endorsed legibly with the title of the case, nature of the offense, kind of proceeding, and magistrate's name) shall include a report of the case with the names and addresses of all material witnesses and a synopsis of all testimony. The magistrate or municipal judge should complete and attach to these papers a "Certificate of Transmittal" (Form SCCA-215) and forward the appropriate copy of this form to Court Administration upon receipt by the clerk of court.

10. Closure of the Preliminary Examination

Judicial proceedings are presumed to be open to the public. Public policy considerations supporting this position include the need to insure public confidence in judicial proceedings. However the U.S. Supreme Court held that the Sixth Amendment right of a defendant to a speedy and public trial does not give the public a right of access to pretrial proceedings in all cases. Gannett Co., Inc. v. Depasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d (1979).

As a general matter, pretrial proceedings should be open to the public. Only in extremely rare cases should the pretrial proceeding be closed. Upon a motion to close the pretrial proceeding, the defendant must show: (1) that he will be denied a fair trial if the public or press is allowed access to the proceeding; and, (2) no other method of protecting the defendant's right to a fair trial is available. Persons with a legitimate interest in the proceedings (e.g. representatives of the news media) should be allowed to present reasons why the pretrial proceeding should remain open to the public, and why the defendant's right to a fair trial will not be jeopardized by an open hearing. After hearing the arguments both for and against closure of the proceeding, the judge must determine whether closure of the proceeding is necessary to protect the defendant's rights. Even in those instances where the prosecutor consents to the closing of the pretrial proceeding, the judge must make an inquiry and determine that no other alternative action will protect the defendant's right to a fair trial.

In most cases, alternative methods of protecting the defendant's right to a fair trial will be appropriate. In many cases the defendant may argue that prejudicial hearsay information (not admissible at trial) will be introduced at the preliminary and may be subsequently reported by the press. Rather than denying public access to the preliminary in such instances, the judge should consider alternative methods for preserving the defendant's right to a fair trial. For example, the witnesses may be sequestered at the preliminary as well as at the trial itself. Also, at trial more extensive voir dire of prospective jurors could eliminate those jurors who have prejudged the case based on news media accounts of the preliminary. Additionally, in highly publicized cases, the circuit court may permit a change of venue to another county less likely to receive the local news coverage received in the county of the alleged offense. Finally, a combination of these methods and others might be highly effective in assuring the defendant's right to a fair trial, while not denying public access to a pretrial proceeding.

If the judge finds that these alternatives will not adequately protect the defendant's right to a fair trial, then the pretrial proceeding may be closed. An express finding must be made, however, that the exclusion of the press is required to protect the defendant's right to a fair trial and that no other method of protecting this right is available, and this finding must be made a part of the record. (See Steinle, et al v. Lollis, 279 S.C. 375, 307 S.E.2d 230 (1983). One example where a potential proceeding may be closed is when a confession by the defendant is to be introduced in a highly publicized case. Such a confession if made public prior to trial may be so prejudicial that the defendant would be unable to strike a jury that has not prejudged the case due to pretrial publicity. However, the judge should enter into the record of such proceeding, the fact that no other less intrusive means of protecting the defendant's right exist and the reasons for reaching such a conclusion.