A newcomer's guide to S.C.'s criminal-justice system
This page is designed to enhance your understanding of the criminal court system in South Carolina. Read it start to finish for a comprehensive overview, or click on one of the frequently asked questions below to jump directly to a specific answer.
The Solicitor’s Office, law enforcement and criminal courts around South Carolina’s 14th Judicial Circuit deal with crime and the resolution of criminal cases every day. Fortunately, the citizens they serve do not. While it is good that most people do not have to deal with serious crime in their daily lives, it also means many are unfamiliar with nuances of the legal system. These nuances can and frustrate and confuse crime victims who find themselves suddenly thrust into the system. Confusion sometimes also reigns when the community begins following a high-profile case.
This guide is designed to help you better understand the criminal court system in South Carolina and clear up this confusion. Let’s start with a brief description of four major players and their roles in the system:
- Law enforcement: Sheriff’s offices, municipal police departments, the S.C. Highway Patrol and similar agencies investigate alleged criminal activity and arrest those suspected of breaking the law. In South Carolina, these agencies are responsible for bringing criminal charges.
- The Solicitor’s Office: South Carolina is divided into 16 judicial circuits, all comprising at least two counties. The 14th Circuit is the state’s only five-county circuit and serves Allendale, Beaufort, Colleton, Hampton and Jasper. It prosecutes felonies and some misdemeanors in General Sessions Court. In South Carolina, the solicitors’ primary role is to review charges brought by law enforcement and prosecute those which can be proven beyond a reasonable doubt.
- The courts: Depending upon the type of proceeding, a judge or a jury will decide on the guilt or innocence of the accused. Judges consider the law and determine how the convicted should be punished.
- Corrections: This component of the system includes the S.C. Department of Corrections; the Department of Juvenile Justice; and the S.C. Department of Probation, Parole and Pardon Services. These agencies oversee the imprisonment, probation and parole of those convicted of crimes.
The process starts: Law enforcement makes an arrest
Before a suspect can be arrested, law enforcement must have probable cause to believe a crime was committed and that the suspect is responsible. If the criminal act happened in the presence of a law enforcement officer, no warrant is needed to make an arrest. Otherwise, an officer must convince a magistrate to issue an arrest warrant.
To do so, law enforcement must satisfy the probable cause standard, presenting facts that would lead a person to believe the accused likely committed a crime. This threshold, while higher than mere suspicion, is lower than “beyond a reasonable doubt,” which is the standard the Solicitor’s Office must meet to earn a conviction in court. The latter is the highest burden of proof in the criminal justice system.
Though not required to do so, law enforcement agencies sometimes seek a legal opinion from the Solicitor’s Office about appropriate charges before making an arrest. In such instances, our office’s advice will be based upon the “beyond a reasonable doubt” standard. Law enforcement agencies are not obligated to follow that advice, however.
Also, during an investigation and before an arrest is made, law enforcement agencies sometimes ask for help from Solicitor’s Office investigators, who are attached to our Intelligence Unit. For instance, we often extract information from cellphones, help agencies collect evidence at crime scenes or surveil suspects. Our investigators are duly sworn law-enforcement officers, and we generally honor such requests for assistance.
However, our investigators are not patrol officers, and they do not typically conduct independent, pre-arrest investigations. As such, citizens who suspect criminal wrongdoing should make their report to a law enforcement agency with jurisdiction where the activity took place.
Similarly, neither our investigators nor our attorneys typically bring initial charges against a defendant. In South Carolina, that must be done by law enforcement, with rare exceptions.
Solicitor's Office reviews the charges
After an arrest is made, charges that are to be tried in General Sessions Court are referred to the Solicitor’s Office for prosecution. Each weekday morning, our intelligence analysts gather information on each arrest made since the start of the previous shift. They consider each defendant’s criminal history, known associates and the nature of the current charge. The analysts then assign new cases to the appropriate team of attorneys, investigators and victim advocates within our office. For instance, the most violent offenders are sent to our Career Criminal Unit, and crimes such as domestic violence and sexual assault are sent to the Special Victims Unit. Our analysts also work to identify early in the process those defendants who might be eligible for diversionary programs, such as pretrial intervention or alternative-sentencing programs, such as our Multidisciplinary Court program.
Attorneys then conduct their own case analysis. To earn a conviction, they must ultimately prove a case beyond a reasonable doubt. Put another way, the evidence must leave jurors firmly convinced of the defendant’s guilt. As explained previously, this is a much higher standard than probable cause and is the basis upon which all 14th Circuit Solicitor’s Office decisions are made.
With this burden of proof in mind, our attorneys determine:
- If law enforcement was correct to charge the defendant;
- If law enforcement brought the correct charge against the defendant;
- If that charge can be proven beyond a reasonable doubt, based upon evidence that is likely to be admissible in court;
- And, if so, the appropriate penalty under the law, which will become the office’s sentencing recommendation.
Unlike a plaintiff’s attorney in civil court, criminal prosecutors represent the state, not victims of crime. Nonetheless, the 14th Circuit Solicitor’s Office values victim input, operates a Victims Services Center to fulfill the specific needs of some types of crime victims, and assigns a victim advocate in each of its cases.
Advocates are dedicated professionals who work with victims and witnesses at every step of the judicial process. Victims have many rights, among them the opportunity to make written or oral statements at all hearings affecting bond, a plea or sentencing. Most law enforcement agencies have victim advocates, as well, but once an arrest is made, the Solicitor’s Office advocate will be the primary liaison to the prosecutor, notify victims of upcoming court dates and inform victims of their rights throughout the process.
In formulating their case analysis, our attorneys follow a pre-indictment checklist that helps determine whether a case is suitable for prosecution. This process is thorough and can take substantial time to complete. However, a defendant is entitled to a bond hearing within 24 hours of arrest under most circumstances.
The Solicitor’s Office does not determine whether bond will be granted, or the amount necessary to secure release if it is. Rather, these decisions are made by judges.
At a bond hearing, defendants are not expected to enter a plea or file motions. It is important to remember that bond is not punishment. In fact, state law requires the release of every defendant on his or her own recognizance pending trial, unless the judge determines the defendant is a flight risk or a threat to public safety.
If so, the judge can require that the defendant post bond as a condition of release from detention-center custody.
The judge can also deny bond or, in the alternative:
- Place the person in the custody of a designated person or organization agreeing to supervise the defendant;
- Place restrictions on the defendant’s travel and associations with other people, such as victims, witnesses or people with known criminal affiliations;
- Impose any other conditions deemed reasonably necessary to assure the defendant appears before the court as required. These conditions can include electronic monitoring, a curfew or a requirement that the defendant return to custody after specified hours.
Magistrate or municipal judges usually set bond on all initial charges, except those carrying the potential for a life sentence or death penalty. In the latter instances, bond must be set by a Circuit Court judge, which typically will take place during the next term of General Sessions Court in the county where the offense occurred.
Defendants can also ask that their bond conditions be reconsidered, and the Solicitor’s Office can ask that bond be revoked if the defendant violates a condition of his or her release.
Those charged with a case in General Sessions Court have the right to a preliminary hearing, during which they can challenge whether law enforcement established probable cause for the arrest. The defendant must request the hearing within 10 days of being notified of the right to such a proceeding, though the hearing itself might take place later than that. Often, this right is deferred or waived.
Preliminary hearings take place in front of a magistrate, with no jury present. The accused isn’t required to attend and is not allowed to testify or present evidence. Rather, the state calls a witness or witnesses– typically an arresting officer of the chief investigating officer – to testify as to probable cause. A defense attorney can cross-examine the witnesses, but questions are limited to issues related to probable cause.
The judge then reviews the testimony and decides whether probable cause exists. If it does, the case is bound over for trial. If it does not, the judge dismisses the charge.
However, even if the judge dismisses a charge, the Solicitor’s Office can essentially reinstate it by presenting it to the grand jury for indictment. Thus, in some instances and in some jurisdictions, the arresting agency handles preliminary hearings without a prosecutor present.
Also, preliminary hearings must take place before a grand jury “true bills” an indictment. Once the indictment is validated, the defendant no longer has a right to a preliminary hearing.
The grand jury
When the evidence matches the elements of a crime as described in the law and is, in the view of our attorneys, sufficient to prove the charge beyond a reasonable doubt, indicted cases are presented to the grand jury in the county where the alleged offense occurred. The grand jury is a panel of 18 citizens who review these cases. Unlike a trial jury, which is chosen for a single term of court, grand jurors serve one-year terms and meet monthly.
To secure a “true-bill” indictment, our solicitors most prove probable cause, although as a matter of office policy, they will only present cases they believe they can prove beyond a reasonable doubt. The solicitor cannot act as a witness or be present during deliberations, which are secret and may not be inquired into.
The defendant has no right to be present and is not permitted to present evidence to the grand jury.
Once presented with evidence, the grand jury can vote to “true-bill” the indictment, “no-bill” the indictment, or take no action. Unlike juries in a trial, grand juries do not need to reach unanimous decisions. A “true-billed” indictment means that at least 12 of the 18 members have determined the state met its burden and can proceed to trial. A “no-bill” indictment means probable cause was not established and fewer than 12 of 18 voted to true-bill the charge. A grand jury may elect to take no action if they need more evidence to decide, though this is rare.
In some states, local grand juries have investigative powers. That is not the case with county-level grand juries in South Carolina. However, a state grand jury with such powers can be empaneled under certain circumstances.
A grand jury hearing is a right guaranteed by both the state constitution and the Fifth Amendment of the U.S. Constitution in cases involving General Sessions-level charges. However, a defendant will sometimes waive indictment, bypassing the grand jury altogether – usually to expedite the process when they intend to enter a guilty plea.
Why charges are reduced or dropped
The American Bar Association’s Standard 3-3.9, Discretion in the Charging Decision states that a prosecutor should neither make a charge nor permit the continued pendency of a criminal charge for which there is a lack of admissible evidence to support a conviction. This means our attorneys are sometimes ethically obligated to dismiss charges brought by law enforcement, even if they believe officers probably arrested the guilty party. “Probably” simply isn’t good enough in our world.
With that in mind, a dismissal does not necessarily mean that law enforcement acted improperly or made a “bad” arrest. Rather, a dismissal is most typically a consequence of two considerations. First, it is understood that officers must often make charging decisions in the interest of public safety before all evidence can be collected and analyzed. Second, prosecutors must meet a higher standard of proof than law enforcement. So if a key witness recants, a victim does not cooperate in the investigation or a lab test returns an exculpatory result not available at the time of arrest, a prosecutor might have no ethical alternative but to dismiss a charge, even if the initial arrest was perfectly justified under the “probable cause” standard.
Cases can be dismissed for other reasons and is not necessarily an indication that the Solicitor’s Office did not pursue prosecution or will not do so in the future. Among other reasons a case might be dismissed:
It is remanded for further investigation: Sometimes, when evidence is insufficient to prove a charge beyond a reasonable doubt, the Solicitor’s Office asks the law enforcement agency that brought it to investigate further. There is no statute of limitations in South Carolina, and prosecution can resume if new evidence supporting the charge comes to light.
It is dismissed by a judge: As described in a preceding section about preliminary hearings, a magistrate can determine that law enforcement did not have probable cause to make an arrest and dismiss a charge. However, even when this occurs, a solicitor can still seek a direct indictment from the grand jury and proceed with prosecution.
A defendant enters a diversion program: Defendants who are eligible for Pretrial Intervention can have their records expunged upon completion of the program. Under such circumstances, the original charge is recorded as “dismissed,” even though prosecution was pursued and the defendant faced consequences. (The law does not allow the Solicitor’s Office to publicly confirm or acknowledge that a defendant has completed PTI or even that he or she has entered into the program.)
A judge grants a conditional discharge: This means that the court offered the defendant certain conditions, such as treatment and rehabilitation, instead of being found guilty. As with PTI, the charge is dismissed, even though prosecution was pursued by the Solicitor’s Office and consequences faced by the defendant.
The defendant’s case is moved to federal court: The 14th Circuit Solicitor’s Office has a unique relationship with the U.S. Department of Justice, in which an assistant solicitor is embedded with the U.S. Attorney’s Office and authorized to pursue federal charges against 14th Circuit offenders whose crimes meet certain criteria. Usually, these are gun or drug charges for which federal penalties are stronger than those in the state system and more appropriate for the offender. When cases are moved into the federal system, the original state charges are typically dismissed.
Defendant’s charges are remanded to a lower court: Sometimes, after analyzing a General Sessions-level charge, the Solicitor’s Office determines that the evidence supports only a lower-level charge. For instance, a defendant originally charged with first- or second-degree assault and battery has actually committed a third-degree assault and battery. Though still a crime, this offense carries a lesser penalty and is not prosecuted in General Sessions Court. In such a case, the Solicitor’s Office would file a dismissal and remand the charge to law enforcement for prosecution in Magistrate or Municipal court.
The defendant fails to appear for trial: Sometimes, defendants do not show up for trial or a mandatory hearing. When this happens, a bench warrant is typically issued for the defendant’s arrest. These cases can remain in administrative limbo until the defendant is apprehended. For recordkeeping purposes, some agencies mark these cases as dismissed, even though the Solicitor’s Office stands ready to proceed with the prosecution.
The charge is extraneous or unlikely to result in additional prison time: Often, a case consists of multiple charges that arose as part of the same criminal incident. To secure convictions, a prosecutor must prove each element of each charge. Sometimes, that is worthwhile and will result in a longer prison term. In other instances, additional charges aren’t likely to add to the penalty – the defendant would most likely serve concurrent sentences even if convicted. By pursuing such charges, the prosecutor risks confusing the jury or jeopardizing a conviction on the most serious offenses. In other instances, proving one of a large set of charges might require a victim to testify and be retraumatized in the process. In either of these circumstances, a solicitor might determine it is prudent to dismiss some charges and let others stand. If this decision is made after indictments are already secured, these dismissals will likely be marked as “nolle prossed,” which is legal term that means the charge has been abandoned by the prosecutor. Again, however, South Carolina has no statute of limitations, and prosecutors might have the option of reindicting for the offense if circumstances change.
Defendant dies awaiting trial: It’s rare, but it happens. When it does, the Solicitor’s Office will officially close out the case by filing a dismissal.
This is the first post-indictment court appearance. The procedure for these hearings varies from county to county. During the COVID pandemic, for example, these were often conducted via remote technology or bypassed altogether. If a defendant fails to appear for this hearing, a judge can issue a bench warrant for their arrest. Defense attorneys can speak with the solicitor about their cases and will usually receive discovery from the solicitor, though 14th Circuit Solicitors will have typically already provided it by this time. Also, the prosecutor will usually inform the defense of the office’s sentencing recommendation.
The second scheduled court date is to follow up on the status of a case. Again, the procedure varies from county to county, and a bench warrant can be issued if a defendant fails to appear. At this hearing, defendants typically must decide whether to plead guilty or proceed to trial. A disposition date is usually set.
Matters of law, particularly those regarding the admissibility of certain evidence or testimony, are to be settled outside the presence of a jury. Sometimes, these hearings are held during court week, as the trial is taking place. In other instances, some or all hearings might be held before a jury is seated, typically the week before trial.
Charges that have advanced to this stage are typically disposed in one of two ways:
1. Plea hearings
Across the nation and state, the vast majority of convictions – 95% or more – are finalized through guilty pleas. This is the case in the 14th Circuit, as well, though our office has a unique policy regarding pleas.
To ensure that all cases are handled professionally and ethically, the 14th Circuit Solicitor’s Office adopted a “no plea deals” policy in May 2021. This ended the practice of making one sentencing recommendation for defendants convicted at trial and another, usually with lesser penalties, for those who plead guilty. Instead, our prosecutors make a sentence recommendation, with senior-attorney input, that takes into account the severity of the offense(s) and the offender’s criminal history. This recommendation does not change unless new facts come to light. This policy has long been in place for our highly successful Career Criminal Unit and now extends to all cases. It lets the defendant know early in the process our office’s stand on sentencing, reducing the incentive to wait until the eve of trial in hopes of leniency. It also eliminates any perception that the defendant will be penalized for exercising his or her Constitutional right to a jury trial.
There are two types of guilty pleas in South Carolina. In most proceedings, the prosecution will describe the charge and the circumstances of the crime. The judge will ask the defendant a series of questions designed to confirm that he or she has had access to legal advice and is entering the agreement freely. The prosecution will then make a sentencing recommendation, often in the form of a range that leaves some discretion to the judge. If victims are present and wish to speak, they can do so. The defense can also make arguments regarding factors they believe should mitigate the severity of the sentence. The judge can then reject or accept the plea. If it is accepted, the judge will then set the sentence as they see fit.
In a “negotiated” sentence plea, the prosecution and defense agree to terms ahead of time. Procedure for the disposition hearing is like that of other guilty pleas, except that the judge must either accept the plea and issue the negotiated sentence or the reject the plea in its entirety. If the plea is rejected, the defendant can withdraw the guilty plea without surrendering the right to a jury trial.
In terms of setting the docket, pleas involving defendants who are being detained in a detention center – or “jail pleas” – typically are prioritized over pleas involving defendants who are not in detention – or “walk-in pleas.” Dispositions during some terms of General Sessions Court might involve nothing but plea hearings; in other terms, hearings are scheduled around breaks in a jury trial or after its conclusion.
2. Jury trial
All defendants are entitled to a trial before a jury of their peers. In fact, defendants have additional rights that affect the conduct of those trials – for instance, the presumption of innocence and the protection against self-incrimination. As such, defendants have the option, but are not required, to submit evidence or call witnesses. If the defendant chooses not to testify, the judge will instruct the jury that it cannot consider this fact during deliberations. It is not uncommon for the defense to rest without presenting any case at all, relying instead on cross-examination of prosecution witnesses and the closing argument of the defense attorney.
The burden of proof is squarely on the state – that’s the Solicitor’s Office – to prove charges beyond a reasonable doubt. Further, prosecutors do not have carte blanche in arguing their case. Under most circumstances, for instance, the state cannot mention the defendant’s criminal history in front of the jury or submit hearsay evidence – that is, statements supposedly made by one person that are entered into the record through testimony of another person.
The judge is the sole interpreter of the law and the admissibility of evidence. However, it is improper for the judge to offer an opinion about the facts in front of the jury.
After the prosecution and defense have opportunities to make opening statements, present evidence and testimony, and make closing arguments, the judge will instruct the jury on the law. Jurors then retire to the jury room for deliberations. All 12 jurors must agree on the verdict. If there are multiple charges, they must consider each charge separately. Occasionally, a jury cannot reach a decision, resulting in a “hung jury” and a mistrial. In that event, the Solicitor’s Office will decide whether to try the case again in front of a new jury.
If the defendant is convicted on one or more charges, the jury is dismissed, and the judge begins sentencing proceedings. (The exception is when capital punishment is a possibility; in that case, a second phase of the trial begins, in which the jury determines whether the defendant should receive the death penalty.) In South Carolina, sentencing usually follows immediately after the reading of the verdict but can be conducted at a later date, too.
There is no set timeframe for the duration of a jury trial or of a jury’s deliberations, although most trials range from one to three days.
Waiver of juvenile to General Sessions Court
This guide has described the process for cases involving adult defendants. The juvenile system is vastly different and won’t be described in the same detail here. However, some juvenile defendants can be tried as adults and their cases “waived up” from Family Court to General Sessions Court.
A 17-year-old charged with an A, B, C, or D felony or felony carrying a maximum of 15 years is not considered a juvenile and must be charged as an adult, although the defendant can be remanded to Family Court at the solicitor’s discretion. Any additional or accompanying charge must be heard in General Sessions court, unless the charges are remanded to Family Court.
A 15- or 16-year old charged with an A, B, C, or D felony can be waived up to General Sessions after a waiver hearing in Family Court. Any additional or accompanying charge that is not such a felony must remain in Family Court.
The state can request that a child be transferred to General Sessions after a full investigation and hearing if:
- The charge is murder (regardless of age) or criminal sexual conduct (if the child is 16 or older), and;
- The request to transfer is in writing and is made within 30 days after the filing of a petition in Family Court.
If the Family Court judge hears the request and denies the waiver, the state has five days to appeal to the Circuit Court, which will either grant or deny the request. If the Family Court judge denies the motion for waiver, a different judge should preside over any adjudicatory hearing at a later date. Once a juvenile is waived up to General Sessions, the state can indict him on a lesser offense related to the original crime.
Criteria for considering a waiver
These are called “Kent factors,” a reference to the case in which they were established, the 1966 Kent v. United States case.
- Seriousness of offense to community and whether protection of community requires waiver;
- Whether offense was committed in an aggressive, violent, premeditated or willful manner;
- Whether offense was against persons or property, especially if personal injury resulted;
- Prosecutive merit of complaint; i.e., whether there is evidence upon which a grand jury may be expected to return an indictment;
- Desirability of trial and disposition of entire case in one court when juvenile’s associates in the offense are adults who will be charged with a crime in another court;
- Sophistication and maturity of juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living;
- Record and previous criminal or adjudicative history of juvenile; and
- Prospects for adequate protection of the public and likelihood of reasonable rehabilitation of juvenile by use of procedures, services and facilities currently available to juvenile court.