LAW AND ORDER
(South Carolina Style)



If you have been arrested in South Carolina (or, if you are worried that you might soon be arrested), you have rights!  If you have ever seen a cop show on TV, you know that you have "the right to remain silent."  If you are reading this webpage you may have some questions about the Police and the Court System in South Carolina.


I THINK I AM IN TROUBLE.

AM I GOING TO BE ARRESTED?

In South Carolina you can be arrested for many different crimes.  You can be arrested for littering or for murder.  Some crimes (such as speeding or having your dog run at large), do not require an arrest.  Most people do not get legal advice before being arrested.  If you think that you might be in trouble for something, and you are worried about what might happen, talk to a lawyer NOW.  A lawyer can give you advice, and whatever you say to a lawyer is protected by "The Attorney-Client Privilege."  What this means is that a lawyer can never tell anybody what you said to him or her, unless YOU give your lawyer permission to do so.


IF I AM ARRESTED, WHAT ARE MY RIGHTS?

Every person who is arrested has "rights."  These rights are listed in the Constitution of the United States of America as well as the South Carolina State Constitution.  Knowing your rights can help you help yourself if you are ever arrested.

The right to remain silent.  Once you have been arrested, you have the right to refuse to answer any questions.  This means that you do not have to answer any questions that law enforcement may have.  It also means that you do not have to make any statements to the police or to anyone.  Even if you want to make a statement at a later time, do not make a written or verbal statement to anyone without talking to a lawyer first.  If you do start to talk to the police, you also have the right to stop answering questions at any point.  Remember, anything you say may be used against you in court.  The police have no legal authority to force you to confess.  Law enforcement officers are not supposed to try to intimidate you into admitting guilt by promising you leniency or promising you that they will not prosecute you.  If you say anything, it will be used against you.  In South Carolina, in some situations, it is legal for the police to lie to you in order to try to get you to confess.  The promise of a police officer to "help" you or the promise that he will "put in a good word for you with the judge" in exchange for a confession is not binding!

The right to consult a lawyer.  If you ask to speak to a lawyer, the police must stop asking you questions, and wait for your lawyer to arrive.  You also have this right even if the police have not arrested you.  If you cannot afford a lawyer, the court will appoint one for you.  As soon as possible after your arrest, tell the police that you want to talk to a lawyer.  The lawyer will need to know where you are being held, what you have been charged with, and the names and telephone numbers of family and/or friends who are close by and are willing to help you.  Have this information ready when you call.

The right to a bond hearing.  Most of the time, you will have a bond hearing in jail on the same day you are arrested or the next morning.  If you do not have a bond hearing in 24 hours be sure to contact a lawyer.  "Bail" is the same as "bond."  The judge will "set bail" at the bond hearing.  You have a right to have a lawyer with you at this hearing.  Most of the time, bond is set without a lawyer present.  In very serious cases bail may be denied.  When bail is set, it will be a surety bond or a personal recognizance bond.  A surety bond is a sum of money or property that is given (pledged) to the government to ensure that you show up for court.  If you do not appear in court, the money or property is taken by the government.  If a family member or friend cannot post your bail, a professional bondsman may do so for a fee.  Make sure you know and understand the cost of this bond.  Money paid to a bail bondsman is non-refundable.  A personal recognizance bond (P.R. Bond) is a written promise that you will show up for trial.  No money has to be paid to get out of jail with a P.R. Bond.  A lawyer can be helpful in getting appropriate bail set.

The right to notify family or friends.  This is the "phone call" that you always see on the cop shows.  If you call an attorney first, you can ask your lawyer to contact your family for you.


WHAT SHOULD I DO IF I KNOW THAT I AM GOING TO BE ARRESTED?

If you know that you are going to be arrested, there are some things you can do to keep your situation from getting worse.  In fact, these hints may actually help your situation.

If possible, turn yourself in.  By doing so, you may help yourself get a lower bond.  It may also be very helpful to have an attorney let the police know that you are going to turn yourself in.

Do not resist arrest.  Resisting arrest will always make things worse for you.  You will be charged with a separate crime, in addition to the crime for which you were arrested!  Even if you are eventually found innocent of the charge that you were originally arrested for, you may do jail time for "resisting arrest.

Do not talk back to the cops.  Remember, whatever you say "will be used against you!"

Do not be disorderly.  If you "act guilty" things may get worse for you.  Also, your behavior (while being arrested) will be used against you in court.

Do not refuse entry for a lawful arrest.  If the police come to your house, they have the legal right to break down your door to arrest you.  It is always a better plan go along peacefully.  If you have been wrongfully arrested, there may be something you can do about it later.


CAN THE POLICE SEARCH ME OR MY CAR?

After a lawful arrest, an officer has a right to search you and your belongings, including your car if you are arrested in your car.  However, the officer generally has no legal right to then go to your home to search it unless a search warrant is granted by a judge.  The police can search your home without a warrant only if you give them your permission.


WHAT ARE MY RIGHTS AT THE BOND HEARING?

At your bail hearing, the court must:  (1) inform you of the charge against you, (2) tell you of your right to have a lawyer, and (3) inform you of your right to a preliminary hearing (for cases in General Sessions Court).


WHAT IS A PRELIMINARY HEARING?

If you are arrested, and the charge carries a sentence of more than 30 days, you have a right to a "Preliminary Hearing."  The judge at the Bond Hearing will give you a "Preliminary Hearing Request Form."  You must fill this out and mail it back to the court within 10 days.  If you do not do this you will lose your right to a Preliminary Hearing.  At the Preliminary Hearing the judge will listen to evidence from the police.  If the judge finds that there is probable cause that you committed the crime, the judge will give your case to the Solicitor who will prepare your case for a trial in General Sessions Court.  If the judge finds no probable cause, your case will be dismissed.


WHAT HAPPENS IN GENERAL SESSIONS COURT?

In South Carolina, criminal court (for major crimes) is called "General Sessions Court."  If you are required to appear in General Sessions Court, you can plead guilty or not guilty.  If you plead "guilty," your plea will be taken, and you will usually be sentenced at the same time.  If you plead "not guilty," your case will be scheduled for a jury trial at a future date.  You must always notify the court and your lawyer of any changes in your address so they can let you know when your case is scheduled.  At the trial, the burden is on the state to prove guilt beyond a reasonable doubt.  Remember, every person is presumed innocent until proven guilty.


WHAT HAPPENS IN MUNICIPAL COURT OR MAGISTRATE’S COURT?

WHAT ARE MY RIGHTS?

In South Carolina minor crimes are taken care of in Municipal Court or Magistrate's Court.  A minor crime always has a sentence of 30 days (or less) in jail or a fine.  Very minor crimes are called "offenses."  An offense (such as a building code violation) is punished by fine only.

Always show up for court at the time and place listed on the ticket or summons!  If you have been arrested by a police officer and ordered to appear in either a Municipal Court or a Magistrate's Court, or if you have been issued a Summons (for a traffic offense or other minor offense) to appear in a Magistrate's Court or a Municipal Court, you should appear at the time stated on the ticket, summons, arrest warrant or whatever paperwork you have been given.  If you fail to appear in Court at that time, the judge will conduct a "bench trial" in your absence, you will probably be found guilty, and a warrant may be issued for your arrest.

When you appear in Court, the judge will ask whether you wish to plead guilty or not guilty.  If you wish to plead guilty, then the proceedings will be relatively short, and the judge will decide what sort of fine or jail sentence to impose.  If you are going to plead guilty but feel like you want to be represented by lawyer, you have that right.  Your lawyer should appear with you any time you go to court.  If you cannot afford one, ask the judge to determine if you qualify for an appointed lawyer.

If you will plead not guilty, you should explain that to the judge.  You have the right to a lawyer to assist you at the trial.  If you cannot afford one, ask the judge to determine if you qualify for an appointed lawyer.  You must tell the judge whether you wish to have a jury trial or to be tried only by the judge.  If you wish to be tried by the judge, then the trial probably will be held immediately.  The judge will ask the arresting police officer or the complaining witnesses to tell his or her side of the story.  After each witness for the prosecution has testified against you, you have the right to ask each witness questions.  After the prosecution testimony, you have the right to present witnesses to testify for you.

You also have the right to testify for yourself, or the right not to testify.  REMEMBER:  If you go to Court and plan to plead "not guilty" and you also intend to be tried by a judge without a jury, you should have your witnesses with you when you go to Court the first time.

If you think that you cannot get those witnesses to come to Court, then you should contact the judge before your Court date.  Ask the judge to issue subpoenas which require your witnesses to come to court for your trial.

If you plan to ask for a jury trial, that is your right, and the judge must grant you a jury trial.  You should tell the judge at the first Court appearance that you wish to have a jury trial.  The judge will tell you a day to come back to court to pick a jury, however some judges will select a jury on the first day you appear in Court.

When you have a jury trial, the same procedure applies as was explained to you in the non-jury trial.  If you are found guilty either after a jury trial or after trial by a judge, the judge will then decide what sentence to impose.  Most offenses which are tried in either the Magistrate's Court or Municipal Court carry fines and/or jail sentences.  If the judge decides to sentence you to jail, you will have to go to jail immediately unless you immediately file a Notice of Intention to Appeal to the Circuit Court, as required by court rules.

If you file Notice of Intention to Appeal, you should ask the judge to set an appeal bond.  It is required that a judge set an appeal bond if you are appealing the judge's order.  If you can pay this appeal bond, you will not have to go to jail immediately.

You should always remember that you have some significant rights whenever you are ordered to appear in court on criminal charges.  This information is intended to make you aware of these rights so you can make an informed decision as to whether or not you want to exercise those rights.  If you feel that you need a more detailed explanation about your rights in Magistrate's or Municipal Court, you should consult a lawyer before you go to Court.

This Webpage was prepared to give you some general information on the law.  It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer.