October 12, 1982


TO: All Magistrates and Municipal Judges
FROM: George A. Markert, Assistant Director
RE: New Preliminary Hearing Procedure

The S.C. Supreme Court, in the case of State v. Keenan, 278 S.C. 361, 296 S.E.2d 676 (1982) declared unconstitutional the preliminary hearing procedure contained in S.C. Code Ann. § 17-23-160. The Supreme Court substituted Rule 104, Rules of Practice for the Circuit Courts, for the unconstitutional statutory provisions. (4) The new Rule continues the practice of giving defendants certain rights to preliminary hearings, but differs from the statutory procedure in several important respects. The requirements of the new rule are briefly summarized as follows:

1. The preliminary hearing will now be held solely to determine whether sufficient evidence exists to warrant the defendant's detention and trial. The statutory procedure provided for the hearing as a discovery mechanism. The defendant is given discovery opportunities in criminal cases by new Circuit Court Rule 103, (5) which allows the defendant to inspect and copy certain information held by the prosecution, and vice versa.

2. 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 not bailable, the notice shall be given him no later than would be required if the offense were bailable. The form furnished you with this memorandum, SCCA PH-1, 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 described below in paragraph 4. You should note at Item 7 of the "Checklist for Magistrates and Municipal Judges" that the defendant was given Form SCCA PH-1. This is the only means you have of checking yourself to see that proper notice has been given the defendant. The checklist will be revised to more clearly describe this notice procedure. 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 notice is 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 would be given notice of their rights to preliminary examinations at what many magistrates 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 after his arrest.

3. The warrant and any related papers should be transmitted to the Clerk of Court immediately after the bond hearing or first appearance hearing. Since the defendant must request a preliminary hearing within ten (10) days of notice to him of his rights to such a hearing, and the hearing must be held within ten (10) days of request (see paragraph 4 below), all preliminary hearings will be held within twenty (20) days of the bond hearing or first appearance of defendant before a magistrate or municipal judge. Therefore, there will be much confusion between you, the Clerk and the Solicitor if papers are not transmitted to the Clerk immediately after a bond hearing.

4. The request for a preliminary hearing must be made within ten (10) days after the defendant is given notice of his rights to a preliminary hearing. You must provide the defendant with a simple form upon which to make his request, even though he need not make his written request on the form. Required use of Form SCCA PH-1 will provide the defendant with this simple request form, along with the required written notice of right to a preliminary hearing. The request need not be made on the form provided, but it must be in writing.

5. The preliminary hearing shall not be held within ten (10) days following the request. The statutes establishing the preliminary hearing procedure gave the defendant twenty (20) days, or up to ten (10) before the commencement of the next term of General Sessions Court, to make his request. Rule 104 provides a much less confusing method for computing the time within which to hold the preliminary hearing.

6. The preliminary hearing shall not be held if the defendant is indicted by a grand jury or waives indictment before the preliminary hearing is held. Please note that the statutes rules unconstitutional provided that the defendant could not be indicted pending the holding of the preliminary hearing. Under Rule 104, the defendant may be indicted before the holding of a requested preliminary hearing, and if he is indicted, the preliminary hearing may not thereafter be held.

7. Findings of all papers in the hearing shall be transmitted to the Clerk of Court immediately upon conclusion of the preliminary hearing.

If you have any questions, please do not hesitate to call this office.

4. Rule 104, Rules of Practice for the Circuit Courts has been re-numbered as Rule 2, S.C. Rules of Criminal Procedure (SCRCrimP).

5. Rule 103. Rules of Practice for the Circuit Courts has been re-numbered as Rule 5, SCRCrimP.