There is no downside to preliminary hearings in state court
Yesterday morning I arrived at preliminary hearings and, as often happens, the officer sought us out before the prelims got started. Usually, I’ll talk to the officer about their case and gather what information I can, then explain to him or her that I cannot waive the prelim unless they are dismissing the case.
This time, the officer had no problem with recommending to the prosecutor that the case be dismissed. There is another charge pending on the same client, but this particular charge needed to be dismissed. My client was asleep on the couch in a house; the police came in and found some guns and some stolen items in the back of the house. They knew that my client had nothing to do with the items, it was not his house, he was not involved with the weapons and stolen items nor was there any indication he knew they were there, but they arrested him anyway primarily because they believed he was an illegal alien (all but one of the others in the house were).
Now that they know my client is an American citizen, brown skin and all, there is no need to keep him in jail. We waived the prelim this time, and should have the other, older case worked out with the prosecutor soon.
Many local attorneys don’t request prelims, and waive them when their clients request them. The local public defender’s office waives every preliminary hearing without exception. The reasons that lawyers give for waiving prelims are that they are a waste of time; magistrates will not dismiss cases at prelims, and if they do the solicitor can still send the case to the grand jury for indictment.
The problem with this is that some magistrates do dismiss cases at the preliminary hearing, if there is no probable cause for the arrest. Often the solicitor’s office will go back and have the case indicted anyway, but sometimes they do not. If they do, the fact that there has been a judicial determination of no probable cause demonstrates the weakness of their case. And sometimes they don’t indict the case, because preliminary hearings are an easy way to get rid of a dog of a case without dismissing it themselves.
There are situations where the magistrate can find probable cause as to a lesser included offense but not the charged offense. For example, a defendant can be charged with trafficking in cocaine, which requires a weight of more than 10g – if the officer’s testimony does not establish the weight as being greater than 10g, but does establish that there were drugs in the defendant’s possession, the case can be allowed to proceed only as possession or possession with intent to distribute. In property cases like breach of trust or grand larceny, if the testimony does not establish probable cause that the property’s value was greater than $1000, the case can be remanded to the lower court as a misdemeanor.
Prelims are also an opportunity to talk to the officer about the case, and sometimes find that the officer is not interested in prosecuting the case, like our case yesterday. Prelims are a golden opportunity to put the officer on the stand and test them, find out what their testimony will be, and lock them into testimony on the record before trial.
South Carolina law guarantees the right to have a magistrate determine whether there is probable cause for a case to go forward, at an early stage of the case when there is usually no reason a defendant should be waiving any of his or her rights. There is no downside to preliminary hearings.
