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G.
Rights of the Defendant

1. Outline

While it is not possible to discuss all of the procedural rights of the defendant, the following outline may be of some use to magistrates and municipal judges.

a. Right To Be Informed Of The Nature Of The Complaint (infra)

b. Right To Counsel (infra)

c. Right Against Self-Incrimination (infra)

d. Right Of Confrontation (infra)

e. Right To Due Process (infra)

f. Right To Speedy And Public Trial (infra)

g. Right To Bail (see Article I, Section 15, S. C. Constitution; and BAIL)

h. Right To Preliminary Examination (see PRELIMINARY EXAMINATION)

I. Right To Unanimous Verdict (See S.C. Const. Art. V, §18)

j. Right To Compel The Attendance Of Witnesses (See S.C. Const. Art. I, §14 and TRIAL PROCEDURE, Witnesses)

k. Right To Trial By Impartial Jury (See S.C. Const. Art. I, §13, ; and TRIAL PROCEDURE, Selection of the Jury, and The Voir Dire)

l. Right To Reasonable Time To Prepare A Defense

m. Right Against Double Jeopardy (See S.C. Const. Art. I, §12 )

n. Right To Be Present At Trial (Rule 16 South Carolina Rules of Criminal Procedure)

2. Checklist for Magistrates and Municipal Judges

By Order of the Chief Justice, all magistrates and municipal judges are required to use the "Checklist for Magistrates and Municipal Judges" (Form SCCA-507) in all criminal cases in which an arrest warrant has been issued. (see FORMS)

Magistrates and municipal judges are required to attach the Checklist for Magistrates and Municipal Judges to the arrest warrant at the time of the return of the warrant with the arrested person or at the bail proceeding. If the case is transmitted to the Court of General Sessions, or the case is appealed, the Checklist is to be sent to the clerk of court with the warrant and other papers pertaining to the case. If the case is within the trial jurisdiction of the magistrate, the Checklist is to be attached to the warrant and kept as a part of the case in magistrate or municipal court for a period of three years. At the end of that period, the Checklist may be destroyed, however the warrant and other related papers should be retained indefinitely.

The purpose of the Checklist is to provide the magistrate or municipal judge with a checklist of procedural rights, so as to assure that these rights of the defendant are not inadvertently overlooked. It also documents the actions of the magistrate and the defendant for the Circuit Court in cases either beyond the trial jurisdiction of the magistrate or in cases appealed from the magistrate.

3. Defense of Indigents Act

Pursuant to the authority of S.C. Code Ann. §17-3-110, the S.C. Supreme Court has established rules regarding the administration of the Defense of Indigents Act, §§17-3-10 - 17-3-110. These rules are found in Volume 22, of the Code, and in the annual cumulative supplement.

S.C. Appellate Court Rule 602(a) provides, in part, that in all cases within the trial jurisdiction of magistrates or municipal judges, if a prison sentence is likely to be imposed upon conviction, the presiding judge must inform the accused as provided in S.C. Appellate Court Rule 602(b). In these cases therefore, the magistrate or municipal judge should:

(1) Inform the accused of the charges against him and of the nature of the charges.

(2) Advise the accused of his right to counsel and of his right to the appointment of counsel by the court, if the accused is financially unable to employ counsel.

Additionally, S.C. Appellate Court Rule 602(b) provides that the magistrate should,

(3) If the accused represents that he is financially unable to employ counsel, take his application for appointment of counsel or for the services of the Public Defender where the latter is available in the county.

The Chief Circuit Court Judge for Administrative Purposes has, in each county, designated the Clerk of Court or other officer(s) with the responsibility of securing counsel for the alleged indigent defendant. This designated officer should be immediately notified of the request for counsel.

Magistrate and municipal judges should also note the provisions of S.C. Appellate Court Rule 602(c).

The initial designation of the Public Defender or appointment of counsel to represent an accused shall be subject to review by the court if it subsequently appears that the accused is in fact financially able to employ counsel, has obtained counsel of his own, or for other good cause shown.

4. Informing the Defendant of the Nature of the Complaint

When the accused person is first brought before the magistrate or municipal judge after his arrest, he should be informed of the nature of the complaint against him. This explanation should be given in simple terms so that the defendant will be sure to understand the charges against him. For example, in many instances the defendant may not understand the following charge:

The complaint alleges that you made an unlawful offer of corporal injury to John Doe, under circumstances as created well-founded fear of imminent peril, coupled with apparent present ability to execute corporal injury. The complaint further alleges that you did do wrongful physical violence against John Doe without his consent.

A more simple explanation is advisable. For example:

You are charged with assault and battery. The complaint says that you went up to John Doe and threatened to strike him. After that the complaint says you struck John Doe with your fists without his consent. Do you understand the crime with which you are charged?

The magistrate or municipal judge should also inform the defendant of the possible penalty which faces him should he be convicted of the crime with which has been charged.

For example, if the defendant has been charged with a simple assault and battery, the magistrate or municipal judge should inform the defendant as follows:

Do you understand that if you plead guilty or are found guilty, I may either 1) order you to pay a fine of up to $500 or 2) order you imprisoned for up to 30 days? Do you also understand that I may not give you the choice of a fine or imprisonment, but may simply order your imprisonment for up to 30 days?

These explanations should be continued until the magistrate or municipal judge is convinced that the defendant understands both the charge(s) and the possible penalty(s).

5. Right to Counsel

§ 17-3-10 provides, in part,

Any person entitled to counsel under the Constitution of the United States shall be so advised and if it is determined that the person is financially unable to retain counsel then counsel shall be provided upon order of the appropriate judge unless such person voluntarily and intelligently waives his right thereto. (See Defense of Indigents, supra.)

The U.S. Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764 (2002), and Rothgery v. Gillespie County, 554 U.S. 191, 128 S.Ct. 2578 (2008) held that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, regardless of whether it is classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial.

The right to counsel has been held to extend to every "critical stage" in the criminal process, including for example, the preliminary examination. Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L.Ed.2d 387 (1970); State v. Taylor, 255 S.C. 268, 178 S.E.2d 244 (1970).
The magistrate or municipal judge, as a judicial officer, must insure that a defendant has proper counsel at a criminal proceeding. In order to carry out this responsibility, the magistrate or municipal judge must inform the accused person of his two possible alternatives for representation:

1) The defendant may be represented by an attorney. If the defendant cannot afford an attorney but wishes to retain one, counsel may be appointed for him. [See Defense of Indigents Rule 602 South Carolina Appellate Court Rules (SCACR), § 17-3-10 et. seq.].

2) The defendant may represent himself. § 40-5-80.  Defendants have the right to refuse court-appointed counsel and the right to represent themselves.  However, an unrepresented defendant should be advised of the dangers of self-representation.  Faretta v. California, 422 U.S. 806 (1975).  If a defendant is convicted, receives jail time, and was unrepresented, the summary court level conviction will not qualify to enhance a subsequent offense unless there is proof that Faretta warnings, or the dangers of self-representation, were given to a defendant prior to plea or conviction.  Therefore, these warnings must be given in order for summary court convictions to be used in the future for enhancement purposes.  See State v. Spratt, 383 S.C. 212, 678 S.E.2d 266 (Ct. App. 2009).

In order to assist a judge in providing these warnings to an unrepresented defendant, Form SCCA 684, Faretta Warnings, is available in the Form section of this bench book for that use. This document clarifies to defendants the advantages of attorney representation, and if they choose to represent themselves, the potential ramifications.  After advising the defendant of the danger of self-representation, you should inquire on the record if the defendant wishes to be screened for court-appointed counsel (and advise him if he does not qualify, he is responsible for retaining counsel), wishes to retain an attorney, or wishes to represent himself.  This form may be used during bond setting or at the defendant’s first court appearance.  Since counties and municipalities differ as to indigency screening procedure, it would be up to each jurisdiction to determine the appropriate time to administer these rights to the defendant. We recommend that the form be signed by both the defendant and the Judge, and go in the defendant’s case file.

In all cases, the defendant has the right to introduce evidence, examine and cross-examine witnesses, make closing arguments, and otherwise present a defense to the charges.

If the counsel has been retained by the defendant, but the attorney is not present when the time for trial arrives, the magistrate or municipal court judge should use his own judgment in each case as to how to handle the situation. The magistrate or municipal court judge should be responsible to the defendant in the matter; the defendant should not be rebuked or made to suffer because of the tardiness or ineptness of his attorney.

If the defendant does not have counsel, the defendant himself must be given ample opportunity to be fully heard. This is, of course, one of the fundamental safeguards in a criminal trial and is deeply rooted in Anglo-American tradition as well as in Article I, Section 14, of the S.C. Constitution. He should be permitted to confront and examine witnesses (including law enforcement officers), to introduce evidence on his own behalf, and to make whatever other reasonable presentations that he considers necessary to his defense.

Where it appears in the process of the trial that the defendant is unable to handle his defense in an expeditious manner, it is only fair and proper that the magistrate or municipal judge guide him by at least telling him what he might do on his behalf. For example, after a law enforcement officer has completed testimony on behalf of the State, the magistrate or municipal judge might suggest to an unrepresented defendant that he may cross-examine the officer on matters concerning the alleged offense to which the officer has testified. And, after the State has rested its case, the magistrate or municipal judge might inform the defendant that he has the right to call his own witnesses (and to have compulsory process for obtaining material witnesses under S.C. Constitution, Art. I, Section 14) and to introduce whatever evidence he desires. At the conclusion of all the evidence, the magistrate or municipal judge might explain to the defendant that he may make whatever closing arguments he desires on his behalf. While the defendant is making such an argument, the magistrate or municipal judge should be reasonably patient while the defendant attempts to explain himself, and should stop the defendant only when the monologue wanders into the realm of irrelevance or repetition. Ledbetter on Magistrates.

6. Self-Incrimination/Right of Confrontation

The Fifth Amendment of the U.S. Constitution states that no person "shall be compelled in a criminal case to be a witness against himself". This right is also insured by Article 1, Section 12 in the S.C. Constitution. A judge's responsibility is to protect this right for the defendant. He may do this in two ways:

1) Question the accused to make sure that he understands his right not to say anything that might incriminate him.

(a) "Do you understand that under the Constitution of the United States and the Constitution and statutes of South Carolina, you do not have to say anything to me that might tend to incriminate you regarding this charge?"

(b) "Do you understand that the phrase 'might tend to incriminate you' means that anything you say or write may be used in a trial to prove you are guilty?"

(c) "Do you understand that you do not have to say anything to any law enforcement officer that might tend to incriminate you?"

(d) "Do you understand that you do not have to say anything to any judge in court that might tend to incriminate you?"

(e) "Do you understand that you do not have to sign or write anything concerning this alleged crime that might tend to incriminate you?"

(f) "Do you understand that if you do say, write or sign anything, a law enforcement officer or prosecuting attorney may introduce that statement or writing into evidence at trial in order to convict you?"

2) Review the evidence presented by the state at each stage of the trial and determine if the evidence may be properly submitted without violating the self-incrimination law. South Carolina courts have held that compelling a defendant to stand for purposes of identification, State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523 (1974), and requiring the defendant to show his physical characteristics, State v. Hart, 304 S.C. 99, 403 S.E.2d 144 (1991), do not violate the self-incrimination clause. On the other hand, Miranda requirements which state that identification of rights must be given to accused persons at the time of their arrest or interrogation, put restrictions upon the admissibility of confessions by the defendant. To accept a confession, the judge must carefully determine that the accused both knowingly and voluntarily confessed his guilt to the alleged crime.

Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966), the accused must be aware of his basic rights before he may knowingly waive such rights and offer a confession. Miranda requires that the accused be informed:

1) in clear and unequivocal terms that he has the right to remain silent;

2) that anything said can and will be used against him in court;

3) that he has the right to consult with a lawyer and to have the lawyer with him during any interrogation;

4) that if he is indigent, a lawyer will be appointed to represent him;

5) that if he "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease";

6) that if he "states that he wants an attorney, the interrogation must cease until an attorney is present."

If a statement (either confession or merely admission) is obtained in violation of these rules, Miranda prohibits admitting such a statement into evidence. Finally, Miranda prohibits the prosecution from using at trial, the fact that the accused remained silent or exercised any of his rights in the face of accusation.

With regards to self-incrimination, it should be noted that at trial, the prosecution commenting on or making any reference to the fact that the accused failed to testify at trial is constitutionally impermissible. State v. Hawkins, 292 S.C. 418, 357 S.E.2d 10 (1987).

A second right of the accused, guaranteed by the Sixth Amendment of the U.S. Constitution and Art. 1, Section 14 of the S.C. Constitution and S.C. Code Ann. §17-23-60 is the right "to be confronted with the witnesses against him." The constitutional right to confront and cross examine witnesses is essential to a fair trial in that it promotes reliability in criminal trials and insures that convictions will not result from testimony of individuals who cannot be challenged at trial. State v. Martin, 292 S.C.437, 357 S.E.2d 21 (1987).

An accused has the right to be present at every stage of his trial. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). This right, however, may be waived. Ellis v. State, 267 S.C. 257, 227 S.E. 2d 304 (1976). A defendant may properly be excluded when his conduct is disruptive or is interfering with the progress of the trial. In re: Dwayne M., 287 S.C. 413, 339 S.E.2d 130 (1986). Although the right to be present is a substantial one, no presumption of prejudice arises from a defendant's exclusion. State v. Whaley, 290 S.C. 463, 351 S.E.2d 340 (1986); State v. Smart, 278 S.C. 515, 299 S.E. 2d 686 (1982).

Magistrates and municipal judges are cautioned to give the defendant every opportunity to return to the courtroom so as to preserve his right to confront his accusers in an orderly manner.

7. Right to Due Process

The Fourteenth Amendment to the U.S. Constitution provides, in part, that no state may "deprive any person of life, liberty, or property, without due process of law." This provision has been interpreted as requiring the states to assure that the defendant is receiving "that fundamental fairness essential to the very concept of justice." Lisenba v. California., 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941). This fundamental concept of fairness should be dominant in every proceeding before the magistrate or municipal judge.

8. Right to a Speedy and Public Trial

Article I, Section 14 of the S.C. Constitution, and the Sixth Amendment to the U.S. Constitution provide that the accused in a criminal trial shall have the right to a speedy and public trial. The right to a speedy trial is a right which can be waived. Waiver of such right is generally inferred where (1) the accused failed to make timely demand that he be either tried or discharged, (2) the court grants a continuance on motion of the accused or with his consent, or (3) the accused voluntarily entered a plea of guilty without raising the question of denial of a speedy trial. Wheeler v. State, 247 S.C. 393, 401, 147 S.E.2d 627, 630 (1966).

The constitutional guarantee of a speedy trial affords protection only against unnecessary or unreasonable delay. State v. Chapman, 289 S.C. 42, 344 S.E.2d 611 (1986). The determination of whether or not an accused has been denied his constitutional right to a speedy trial depends on the circumstances of each case. State v. Brazell, 325 S.C. 65, 75, 480 S.E.2d 64,70 (1997). For the defendant to establish the fact that he has been denied a speedy trial, he must demonstrate the delay was attributable to the neglect and willfulness of the State. State v. Dukes, 256 S.C. 218, 222, 182 S.E.2d 286, 288 (1971). Certain factors which must be considered in determining whether the defendant has been denied a speedy trial are: (1) the length of the delay, (2) the government's reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant. This four part balancing test was adopted by the United States Supreme Court in Barker v. Wingo, 407 U.S.514 (1972). "South Carolina has also adopted this approach to the speedy trial analysis." See Brazell, supra, State v. Smith, 307 S.C. 376, 415 S.E.2d 409 (Ct. App. 1992); State v. Robinson, 335 S.C. 620, 518 S.E.2d 269 (Ct. App. 1999).

In Richmond Newspapers, Inc., v. Commonwealth of Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the U.S. Supreme Court determined that, based upon the First Amendment rights of press and speech, the public has a right to attend trials. The court held that while the Constitution provides a defendant with the right to a public trial, there is no absolute right to a private trial. Nevertheless, the defendant may move for closure of the trial. At a hearing on the issue, the defendant must show: (1) that he will be denied a fair trial if the public or press is allowed access to the proceeding and (2) no other method of protecting the defendant's right to a fair trial is available. Persons with a legitimate interest in the proceedings (e.g. representatives of the news media) should be allowed to present reasons why the pretrial proceeding should remain open to the public, and why the defendant's right to a fair trial will not be jeopardized by an open hearing. After hearing the arguments both for and against closure of the proceedings, the judge must determine whether closure of the proceeding is the least drastic means of preserving the defendant's right to a fair trial and must make his findings a part of the record. (See Steinle, et al. v. Lollis, supra. Even in those instances where the prosecutor consents to the closing of the pretrial proceeding, the judge must make an inquiry and determine that no other alternative action will protect the defendant's right.

Possible alternatives to closure which might prove equally effective in protecting the defendant's rights under the particular circumstances might be (1) questioning prospective jurors on their voir dire in order to eliminate those who have prejudged the case, (2) sequestering the jury during the entire trial, (3) sequestering the witnesses, (4) permitting a change of venue, or (5) if appropriate, declaring a mistrial. These are only some of the possible methods of protecting the defendant's rights, without closing the trial to the public.

A combination of these or other appropriate alternatives should assure that the defendant receives a fair trial without the necessity of excluding the public from the trial. In all cases, it should be kept in mind that public access to judicial proceedings is an important aspect of our system of justice. (See also "Closure of the Preliminary Examination").