‘Forced progress’: SC Supreme Court suspends preliminary hearings due to coronavirus
The South Carolina Supreme Court has suspended the state’s criminal preliminary hearing process due to the spread of coronavirus.
Instead, police officers who make arrests without warrants have to prove probable cause to a judge with a signed affidavit within eight hours of the arrest, according to the order, issued Friday. The judge then has 24 hours to decide whether the arrest was warranted or the defendant should be released.
The order, which expedites the court process, eliminates a defendant’s right to question the arresting officer in front of a judge before the case goes to trial. It also puts more work on the arresting officer to file an affidavit post-arrest.
The goal of the order is limit the amount of person-to-person contact among the public, lawyers and court employees.
Seth Stoughton, associate law professor at the University of South Carolina, said the coronavirus pandemic is causing the courts to rethink the way they conduct business, and there could be a significant learning curve to comply with the order.
“In some cases, South Carolina criminal courts are really inefficient and have some issues,” he said. “We’re now being forced to reconsider the way we have always done things. It will be uncomfortable, but it could lead to some improvements in terms of both efficiency and outcome. Now is a really good opportunity for the court system to be learning from other jurisdictions about how they do the same thing we have done in an inefficient way.”
What is a preliminary hearing?
In S.C., any person arrested on a felony charge — and on some misdemeanor charges — has the right to request a preliminary or “probable cause” hearing.
If defendants don’t request the hearing within 10 days of receiving notice, they waive the right to the hearing.
While it’s not a trial, a preliminary hearing requires the prosecutor or arresting officer to prove there was probable cause for an arrest.
A magistrate judge presides over the hearing without a jury present, and a defendant’s criminal defense lawyer is allowed to cross-examine the arresting officer about the “warrantless” arrest.
Warrantless arrests are typically when an officer witnesses a crime or receives a complaint about a crime with witnesses and does not obtain a warrant from a judge before making the arrest, Stoughton said. They often are used for charges such as shoplifting, domestic violence, drug possession, or traffic offenses like DUIs.
Because the bar is so low to prove probable cause, Stoughton said, cases are usually not thrown out during a probable cause hearing.
“I would be very, very surprised if it happened with any frequency,” he said.
So what changes?
Under the new order, rather than attend probable cause hearings, police officers must file an affidavit with a judge within eight hours, explaining why the arrest was made.
The judge considers the affidavit and may have the officer give sworn testimony over the phone. The judge has 24 hours — 48 hours in “extraordinary and exceptional circumstances” — to determine whether the arrest was warranted. If the judge finds a lack of probable cause for the arrest, the defendant is released.
Other states, including New York and Florida, have used this affidavit system for years, Stoughton said.
What problems does this pose?
Because of the substantive change in practice, this new order could pose problems for law enforcement agencies and the courts, Stoughton said.
“It’s going to take some adjustments,” he said. “It presents the potential for some cracks that can be slipped through. It’s a human system, and humans are fallible.”
The coronavirus pandemic, not just the S.C. Supreme Court order, could result in officers making fewer arrests due to fear of exposure to the virus within booking facilities and jails, he said.
For larger, more sophisticated police agencies which file incident reports digitally, the order may not require more paperwork because officers can copy and paste their report into an affidavit, he said.
However, it could be a problem if agencies don’t have affidavit forms available or weren’t aware of the new policy, he said.
Jim Brown, a defense attorney in Beaufort, said the Supreme Court’s order could lead to officers making less arrests without warrants, especially in domestic violence cases which, data suggests, are seeing a worldwide uptick due to coronavirus quarantines.
“Law enforcement officers have to do more work to make an arrest, and a defendant loses a chance to test the allegations a little,” he said.
Stoughton said the coronavirus epidemic is forcing the S.C. courts and other institutions to look at other jurisdictions for guidance.
“We’ll have to wait and see what the courts do after things go back to normal,” he said. “This is forced progress and forced evolution for court proceedings. Whether that’s good or bad is in the eye of the beholder. We should resist the urge to conclude that something is just bad or good. We really need to give it time to see how it plays out in practice.”
