The Criminal Court Process
Where you fit in the process. As a victim, witness, or the survivor of a victim you may feel that you are not part of the process, but you are. Don’t be afraid to ask all the questions you have or to be kept informed each step of the way. You will be asked or allowed to participate at various points throughout the prosecution of the case and later during the defendant’s incarceration, if he is convicted. You have rights. These have been stated in the Victim’s and Witness’s Bill of Rights. If you are a victim or the survivor of a victim, how the crime has affected you is an important part of the case.
Warrant and arrest. If a suspect has been positively identified, you, a witness, or a police officer may be the person who signs the arrest warrant that charges the suspect with the crime. The police will be able to tell you who must sign the warrant. If you are to sign the warrant, you will have to go to an office to do so. It may be the magistrate’s office, an office at the county courthouse, or at the city court (sometimes called recorder’s court). You will speak with a judge or a clerk who will prepare the warrant. You will be required to swear that the crime happened and that the suspect did the crime. Whoever listens to what you have to say must be satisfied that there is probable cause to issue the warrant. If they believe what you tell them does not justify a warrant, a warrant might not be issued at that time.
Once the arrest warrant is issued, a police officer will serve it (read and give a copy) to the defendant, the person accused of the crime. If the defendant is in jail, the warrant will be served there. If he is not in jail, a police officer must find the defendant, serve the arrest warrant, take the defendant into custody, and take him to jail. At the jail the defendant will be photographed, fingerprinted, and placed in a cell. Usually, as soon as he can after he is arrested, the defendant contacts his attorney to help him with his defense against the charges made against him.
In less serious or juvenile cases, the defendant may be released instead of being kept in custody. The defendant may be required to post bond before he is released. The purpose of the bond is to assure that the defendant will appear in court. It is not intended to make it impossible for the defendant to get out of jail. You have a right to be present at a bond hearing. Very often the defendant will be out of jail in a matter of hours after he is arrested.
Typically within a day or two after the arrest warrant is served, the defendant is brought before a judge to be arraigned (formally charged).
Attorneys. There are two kinds of attorneys in criminal cases, the solicitor (or deputy solicitor or assistant solicitor), who prosecutes the case for the State, and the defense attorney, who represents the defendant. However, if you are considering a civil lawsuit regarding the case and you have retained an attorney, he may want to follow the progress of the criminal case. Your attorney will not participate in the criminal trial. The victim assistant in the solicitor’s office will keep you informed of the case’s progress. You do not have to talk with the defense attorney prior to trial. However, he may request to interview you. If you choose to speak with him, you may have your attorney or someone from the solicitor’s office with you. Always keep the solicitor’s office informed.
Preliminary Hearing. Before a case goes to trial, it typically goes through at least two hearings. The first is the preliminary hearing. The purpose of the preliminary hearing is to present the basics elements of the case so that the judge may decide whether or not there is probable cause and sufficient reason to go forward with the case and to continue to hold the defendant to the requirements of his bond. Sometimes a preliminary hearing is not requested by the defendant. The defense attorney may be present at the preliminary hearing. He has a right to know what evidence exists against his client. This is called the "right of discovery." The defense attorney may ask questions at the preliminary hearing. The preliminary hearing is open to the public. You don’t need to attend unless the police or solicitor asks you to. You might wish to attend in order to follow the progress of the case.
The Plea. After probable cause is established at a preliminary hearing, the defendant is formally arraigned and charged with the crime and advised of his rights. At the arraignment, the defendant pleads either "guilty" or "not guilty." Many plead "guilty." If he pleads "guilty," he may be sentenced immediately or at some future time. He may change his plea up to the point where the judge accepts his plea of "guilty." If he pleads "not guilty," his case will go to trial. He may change his plea to "guilty" up to the point where either a judge or jury declares a verdict.
Grand Jury. The second hearing is held before the Grand Jury, a group of eighteen citizens. Grand Jury hearings are not open to the public. The grand jury listens to the basic elements of lots of cases, one right after the other. The solicitor may be the only one who presents your case. Or several witnesses may testify. The solicitor might ask you to testify, but usually does not. If the Grand Jury issues a "No Bill," the case will not go to trial. If the Grand Jury issues a "True Bill" (or indictment), the case is bound over for General Sessions Court.
Trials. A trial may be held before either a judge and jury (a jury trial) or before a judge with no jury (a bench trial). The more serious criminal trials are held in General Sessions court. The judge or jury must listen to all the facts of the case and decide whether or not the defendant is guilty of the crime. If the defendant is found "not guilty," he will be released from custody. If the defendant is found "guilty," he may be sentenced right then or at a later time. Almost always the judge decides the sentence. Under South Carolina law, the jury decides the sentence only in cases in which the solicitor asks for the death penalty (called "capital" cases).
Victim Impact Statement (VIS). The VIS is a voluntary, written or oral statement by the victim telling how the crime has affected the victim’s life and family. On the VIS form is a place for you to request notification of court hearings and other proceedings; post-sentence hearings affecting probation, parole, and release; and notification in the event the offender escapes. The VIS is used by the solicitor to prepare a sentence recommendation and by the judge in determining the sentence and restitution, if any. Depending on the sentence, your VIS also may be sent to the SC Department of Corrections and/or Probation, Parole, and Pardon Services. The Parole Board may use your VIS to determine restitution. Make certain that you ask for and complete a VIS. Make sure it is filed with the solicitor’s office if your case is going forward to General Sessions Court.
Completing the VIS may be the most important thing you do. |
Your victim assistant is required to advise "all victims of their right to submit to the court, orally or in writing at the victim’s option, a victim impact statement to be considered by the judge at the sentencing or disposition hearing in general sessions court and at a parole hearing" and provide you with a copy of the VIS form (SC Code §16-3-1550). You may make your statement orally in court, if you wish, instead of in writing, but a written VIS can be sent places where it is useful, such as to the SC Department of Corrections (SCDC), the Department of Probation, Parole, and Pardon Services (DPPPS), and the Parole and Community Corrections Board to be considered every time the defendant has a hearing.
Pre-trial intervention (PTI). The defendant may be eligible for the Pre-trial Intervention Program. The program serves mostly first-time offenders charged with a less serious offense. However, the solicitor may request that any defendant be allowed to participate. This program is paid for by the defendant. It allows him to make restitution (to pay for the damage or injury he has caused) and to attend classes that teach him the impact of his behavior and how to avoid repeating his offense. You should be notified when the defendant applies for PTI and be allowed to express your opinion to the solicitor regarding the defendant’s participation. If he successfully completes PTI, his case will be dismissed. If he fails to successfully complete PTI, his case will be sent back to court.
Sentencing. After a plea of "guilty" is entered or a verdict of "guilty" is reached in the case, the judge will pass sentence on the defendant (except in death penalty cases, in which the jury decides the sentence). The judge will consider all the information he has, including your VIS and the information the defense presents.
Testifying in Court. Testifying means telling the truth. Always tell the truth. If you learn that you will be asked to testify, you will want to talk with the solicitor about what to expect. The solicitor’s office victim assistant may help you prepare to testify. In court all you need to do is tell what you know and answer the questions you are asked. You might be nervous and the defense attorney might try to upset you, but do your best to stay calm and answer questions with simple, truthful answers.
Criminal Law. The purpose of criminal law is to enforce the laws regarding how people behave. Those who disobey the criminal law must answer for their crimes and be made to obey the law. Both the State of South Carolina and the United States government have laws that define crimes. Most criminal cases are tried in state courts.
Constitutional Law. The Constitution of the United States (and its amendments, or changes) guarantees the rights of citizens. One who is charged with a crime is presumed innocent, until he is proven guilty beyond a reasonable doubt.
Definitions of crimes. The definitions of crimes are found in the statutes (laws) that make up the criminal code and in the common law. The common law is the entire set of court decisions of both the United States and England.
Jurisdiction. In order for a court to hear a case, it must have jurisdiction, the authority to hear it and make a decision. Which court has jurisdiction is determined by what kind of crime was committed and where it happened.
Juveniles. Juveniles (persons 16 years of age and younger) who commit crimes usually are not tried in criminal court. Instead the juvenile’s case is heard in family court. There is another section in this folder dealing with juvenile cases.
A Final Note. There is no way to predict the outcome of the criminal court process. What is important for you is to go through the process to its conclusion. Once a defendant found guilty is sentenced, you may register to be notified about hearings regarding probation and parole and request the solicitor’s office to keep you posted regarding the phases of the appeals process.