Frequently Asked Questions
What are your options if you were arrested?
First, you should exercise your right to remain silent. You should then request to speak with your attorney even though you are not yet certain that you want to hire one. Once you invoke your right to remain silent and ask for your attorney, the investigators must honor your request immediately. Next, immediately contact a criminal defense attorney. Consultations are not very expensive, and most lawyers will talk with you and explain to you the possible outcomes. Your attorney should be able to explain to you the possible outcomes, and they can also give options on how you should approach the situation. It is best to possess as much information as possible before making any decision related to your criminal case. What if you are charged with the wrong statute? What if there is a much lesser charge that you can plead guilty to that does not carry the same amount of jail time or even no jail time? It is always advisable to get as much information as possible. You also have the option to consult with more than one attorney. Listen to them both but hire the attorney who is the most accessible and tells you the truth.
What if I want to plead not guilty?
If you are being charged with a crime and you are not interested in accepting the offer that the state made for you, you can request a bench trial or a jury trial. A bench trial is a where the presiding judge will hear the facts of the case and determine a person’s guilt or innocence. A jury trial is where ordinary randomly-selected men and women will decide your guilt or innocence. Most attorneys will automatically request a trial by jury.
If you are being charged with a misdemeanor, there will generally be 6 juror members. If you are charged with a felony the jury will consist of a 12-member jury panel. These will be the people who will determine your guilt or innocence. It is hard to place one’s fate in the hands of complete strangers. However, most attorneys will agree that it is better to elect a trial by jury instead of allowing one single person (a judge) to make the final determination. To allow judges or those to closely involved in the penal system to decide your guilt or innocence is not always the best avenue to take. To have ordinary people reviewing the evidence to determine the guilt of a person is what most attorneys would recommend.
What are the alternatives to pleading guilty?
An accused has the option to plead no contest (nolo contendere). But this will have the same effect as pleading guilty as it will basically be admitting all the allegations made by the state. You can and will be punished just the same and you will still possess a criminal record.
Do the members of the jury panel learn about my prior convictions?
Depending on when you were convicted, plead guilty, or plead nolo contendere, the jury sometimes can hear about the past convictions. This issue will be governed by the South Carolina Rules of Evidence.
Do I have to testify?
No. One of the rights that you have as an American is the right not to incriminate yourself. Each situation is face specific and will require the legal advice of a competent counsel.
What is a pardon?
A Pardon basically relieves all the legal consequences of a crime and conviction. However, it does not erase the conviction from your criminal history nor does it relieve a person from having to register as a sex offender if they were required by the court. A person’s previous arrest record will reflect that they were granted a pardon for the crime. A Pardon restores all civil rights lost because of the criminal conviction. This includes the right to vote, hold office, possess a firearm, or be licensed in any occupation pursuant to South Carolina Code Ann. 24-21-990.
Now, there is not a right to know the reason why or why not you were or were not granted a Pardon.
Pursuant to 24-21-960 the application fee is $100.00.
Who is eligible for a pardon?
South Carolina Code Ann. § 24-21-950 sets forth the guidelines for determining eligibility for pardon:
(A) The following guidelines must be utilized by the board when determining when an individual is eligible for pardon consideration.
(1) Probationers must be considered upon the request of the individual any time after discharge from supervision.
(2) Persons discharged from a sentence without benefit of parole must be considered upon the request of the individual any time after the date of discharge.
(3) Parolees must be considered for a pardon upon the request of the individual any time after the successful completion of five years under supervision. Parolees successfully completing the maximum parole period, if less than five years, must be considered for pardon upon the request of the individual any time after the date of discharge.
(4) An inmate must be considered for pardon before parole eligibility date only when he can produce evidence comprising the most extraordinary circumstances.
(5) The victim of a crime or a member of a convicted person’s family living within this State may petition for a pardon for a person who has completed supervision or has been discharged from a sentence.
(B) Persons discharged from a sentence without benefit of supervision must be considered upon the request of the individual any time after the date of discharge.
South Carolina Code Ann. §24-21-970 provides for the application by an applicant where they have a terminal illness where their life expectancy is one year or less.
Who makes the final decision?
The Review Board will review the application. The Applicant must receive notice of the hearing. However, the Board may reach their decision even if the Applicant does not appear.
Pursuant to South Carolina Ann. §24-21-930 two thirds of the members of the board must agree to the Pardon.
Should you request a preliminary hearing?
Yes. Most attorneys will agree that a person accused of a crime should request a preliminary hearing. This is an opportunity for the state to prove that they have enough evidence to proceed against you. The State must present evidence that there is at least “probable cause” that a crime was committed, and that the defendant committed it. This also gives your attorney the opportunity to meet with and briefly examine the investigating officer(s) to gauge how credible they will be as a witness and to obtain viable and important information about the facts of the pending criminal charges. It is also a good time to point out any weaknesses that the state might have in their case. However, your attorney must not want to point any weaknesses at this time, but rather save them for the trial. Rarely, are cases won during a preliminary hearing, but it is an opportunity to get a recorded statement from someone who investigated the matter. Now, the testimony itself is generally not admissible at a later trial unless it is to impeach (show a prior inconsistent account) a witness a trial.
When do I have to request the preliminary hearing
By statute, a Defendant has ten days to request a Preliminary Hearing in writing. Keep in mind some courts, very few however, might allow a little more time. Always make the request immediately. Do not wait for the 10 days to expire.
How Can I Request a Preliminary Hearing?
Request the Preliminary Hearing in writing. Do it immediately.
What happens If I prevail at the preliminary hearing?
If you prevail at the preliminary hearing that means that the state has failed to prove that there was “probable cause” that you committed the criminal act and you should immediately be released from custody if you were in custody (unless there are other crimes that you are being detained on).
To find out more about Preliminary Hearings click on the link below:
Information About Preliminary Hearings
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