What Are Your Rights if Prosecutors Hide Evidence in South Carolina?

What Are Your Rights if Prosecutors Hide Evidence in South Carolina?

As a criminal defendant in South Carolina, you have the constitutional right to a fair trial. Among other things, this means that you have the right to ensure that the judge or jury hears all relevant evidence—including evidence in the government’s possession that is favorable to your defense.

So, what happens if prosecutors hide this evidence?

Unfortunately, this is not an uncommon scenario. In fact, The Appeal, a nonprofit dedicated to exposing flaws in the U.S. criminal justice system, refers to prosecutors withholding evidence as an “epidemic.” While the good news is that defendants have clear legal rights when prosecutors hide exculpatory evidence, asserting these rights often proves challenging.

Understanding Brady Violations: When Prosecutors Withhold Exculpatory Evidence

Withholding exculpatory evidence is so common that it has its own legal term: A Brady violation. As the Legal Information Institute (LII) explains:

“The Brady Rule . . . requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. . . . ‘Brady material’ or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused–evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.”

While there used to be a requirement for defendants to request exculpatory evidence before courts would find a Brady violation, this is no longer the case. As the LII further explains, “the Supreme Court has eliminated the requirement for a defendant to have requested favorable information, stating that the Prosecution has a constitutional duty to disclose.”

Even so, the prosecution’s failure to disclose evidence that is favorable to a defendant does not constitute a Brady violation in all cases. As noted in the quote from LII above, the evidence in question must be both “material” and “exculpatory.” For evidence to be considered “material,” it must have the potential to influence the judge’s or jury’s decision regarding guilt. For evidence to be considered “exculpatory,” it must be significant enough that it could reasonably lead to an acquittal.

What types of evidence can qualify as “material” and “exculpatory”? Some possible examples include:

  • Physical evidence that indicates you might not have committed the crime
  • Police reports or other records that indicate you might not have committed the crime
  • Evidence of police misconduct (i.e., racial profiling or violating your Miranda rights)
  • Information about a deal between the prosecution and an informant
  • Information that discredits a witness or casts doubt on a witness’s testimony
  • Information that casts doubt on the truthfulness of an alleged victim’s story

It is important to note, however, that the potential impact of evidence is judged on a case-by-case basis. In other words, evidence that might trigger a Brady violation in one case won’t necessarily trigger a Brady violation in another. The key question is whether the judge or jury in your case would be likely to rule in your favor if the evidence at issue was properly disclosed.

How Do You Prove the Prosecution is Withholding Evidence?

If you believe the prosecution is withholding evidence in your case, you have a few primary options available. Depending on the circumstances of your case, it may be possible to prove a Brady violation by:

  • Using Other Evidence That Is Available – In some cases, it will be possible to use one piece of evidence (or multiple pieces of evidence) to prove that the prosecution is withholding another piece of evidence that is directly relevant to your defense.
  • Filing a Brady Motion – Another option is to file a Brady motion, which compels the prosecution to disclose any material and exculpatory evidence in its possession. In addition to disclosing any evidence they have intentionally withheld, prosecutors must also determine whether they have inadvertently failed to disclose any material and exculpatory evidence in the government’s possession.
  • Exposing the Violation At Trial – A third option is to expose the violation at trial. By questioning witnesses and presenting other evidence, your defense lawyer may be able to show that evidence is being withheld.

Are You Entitled to a “Not Guilty” Verdict if Prosecutors Withhold Exculpatory Evidence?

If prosecutors withhold exculpatory evidence in your case, this does not automatically entitle you to a “not guilty” verdict. Rather, the appropriate remedy will depend on the effect of the non-disclosure on your case. If it is still early in your case, the judge might decide that the Brady violation has not impacted your right to justice and your case should move forward. The judge may also simply require that the prosecution produce the evidence so that it can receive due consideration during your trial.

However, if neither of these outcomes adequately protect your right to justice, then you may be entitled to a mistrial or to have your charges dismissed. Having your charges dismissed is the best-case scenario, and you will want to work closely with your defense lawyer to target this outcome if it is warranted.

What If You Find Out After Your Trial that the Prosecution Withheld Exculpatory Evidence?

If you discover that the prosecution withheld exculpatory evidence after the fact, this is a different situation entirely. An unjust conviction can entitle you to a new trial, if not a reversal and dismissal. You may also be able to seek relief based on prosecutorial misconduct. Here, too, you will need to work with an experienced defense lawyer who can examine the facts of your case, determine if the withheld evidence was material and exculpatory, and determine the best way to seek justice for your wrongful conviction.

Discuss Your Case with Rock Hill, SC Defense Lawyer Michael L. Brown, Jr.

If you believe prosecutors have withheld exculpatory evidence in your criminal case, we encourage you to contact us promptly for a free consultation. To discuss your case with Rock Hill, SC criminal defense lawyer Michael L. Brown, Jr. in confidence as soon as possible, call 803-328-8822 or tell us how we can reach you online now.

How (and When) Can You File for Expungement in South Carolina?

How (and When) Can You File for Expungement in South Carolina?

Due to the consequences of having an arrest or conviction on your criminal record, an expungement can truly provide a new lease on life. In South Carolina, many (but not all) arrests and convictions are eligible for expungement. Determining whether you qualify can be challenging, and so can navigating the expungement process. An experienced criminal lawyer can help, and we encourage you to contact us if you have questions about clearing your record.

Here is an overview of some key information about expungement in South Carolina:

Criminal Charges that are Eligible for Expungement

In South Carolina, eligibility for expungement is determined based on two main factors: (i) the nature of the charge, and (ii) the outcome of the case. Timing (i.e., how long it has been since your conviction) is a factor in some cases as well. As outlined by the South Carolina Courts, the criminal charges that are eligible for expungement are as follows:

Arrests Not Resulting in Convictions

Many people are surprised to learn that simply getting arrested puts a stain on their criminal record. If you were arrested but not convicted, you are eligible to have your record expunged immediately. This applies to you if:

  • The Solicitor decided not to prosecute;
  • The judge dismissed your charges; or,
  • You received a “not guilty” verdict in court.

If your case was handled in Magistrate or Municipal Court, your record may have been expunged automatically. If you did not receive an automatic expungement or your case was handled in General Sessions Court, you must apply for expungement.

Pre-Trial Intervention, Alcohol Education, or Traffic Education

If the Solicitor dismissed your charges after you successfully completed a pre-trial intervention, alcohol education, or traffic education program, you are eligible to apply for expungement immediately.

First-Offense Misdemeanor Fraudulent Check Law Conviction

If you were convicted of a misdemeanor offense under South Carolina’s fraudulent check law as a first-time offender, you can apply for expungement after one year provided that you do not get convicted of any other crimes during this one-year period.

First-Offense Simple Possession Conviction

Simple possession of marijuana and certain other drugs is eligible for expungement if you were a first-time offender, you received a conditional discharge, and you have successfully completed your sentencing requirements.

First-Offense Conviction of a Misdemeanor Carrying Up to 30 Days in Jail and a $500 Fine

With the exception of traffic offenses, motor vehicle offenses, and wildlife and game offenses, misdemeanor charges carrying no more than 30 days in jail and a $500 fine are eligible for expungement after three years. You must not get convicted of any other crimes during this three-year period. If you were convicted of a crime of domestic violence, the waiting period is five years instead of three.

First-Offense Conviction for Failure to Stop When Signaled By the Police

If your conviction is for failing to stop when signaled by a law enforcement vehicle, you can file for expungement after three years (assuming you have not received any additional convictions). To be eligible, it must be your first offense, your failure to stop must not have involved bodily injury, and you must have completed all sentencing requirements.

First-Offense Conviction as a Youthful Offender

If you were between the ages of 17 and 24 when you got convicted as a first-time offender, you can file for expungement five years after completing your sentencing (assuming no additional convictions)—provided that:

  • You were convicted of a non-violent crime; and,
  • Your crime was classified as either (i) a misdemeanor; (ii) a Class D, E, or F felony; or (iii) a felony with a maximum prison sentence of 15 years.

Juvenile Offenses

Non-violent juvenile offenses are expungement under the following circumstances: (i) you are currently 18 or older; (ii) you have completed your sentence; (iii) you have not received any additional convictions; and, (iv) you have no prior convictions that would carry a maximum sentence of 5 years imprisonment or more if committed by an adult.

Criminal Charges that are Not Eligible for Expungement

All other crimes are ineligible for expungement under South Carolina law. This means that you cannot have any of the following charges cleared from your record:

  • Driving under the influence (DUI)
  • Driving with an unlawful alcohol concentration (DUAC)
  • Motor vehicle violations
  • Most drug and property crimes
  • Most wildlife and game offenses
  • Violent crimes

How to File for Expungement in South Carolina

If you are eligible to file for expungement, you will need to follow the appropriate application process to have your record cleared. The application processes are different for convictions in General Sessions Court, convictions in Magistrate and Municipal Courts, and juvenile records. A criminal lawyer can help you prepare the correct application and file it with the appropriate court or office. Your lawyer can also make sure your expungement application receives due consideration and deal with any issues that may arise.

What if You Aren’t Eligible to File for Expungement in South Carolina?

If you are not eligible to file for expungement in South Carolina, another option is to request a pardon. However, a pardon does not erase your conviction. Instead, a pardon ends your sentence and restores your civil rights. Requesting a pardon involves filing an application with the South Carolina Department of Probation, Parole & Pardon Services (DPPPS) and then working to convince DPPPS that you do not deserve to serve your full sentence.

Depending on the circumstances of your case, you may also be eligible to file for post-conviction relief. This is somewhat similar to filing an appeal, but you have more time to file, and the grounds for seeking post-conviction relief differ from those for filing an appeal. If your petition for post-conviction relief is successful, you may be able to have your conviction overturned, and this could potentially pave the way for an expungement.

Request an Appointment with a Rock Hill Criminal Lawyer

Having a criminal record in South Carolina presents many challenges. If you think you may be eligible for expungement or would like to know more about seeking a pardon or post-conviction relief, we encourage you to get in touch. To request an appointment with a Rock Hill criminal lawyer, call us at 803-328-8822 or tell us how we can reach you online today.

Should You Consider a Plea Bargain in Your South Carolina Criminal Case?

Should You Consider a Plea Bargain in Your South Carolina Criminal Case?

If you have been charged with a crime in South Carolina, you need to do everything you can to protect yourself. A conviction can have life-altering consequences—and these consequences can extend far beyond any time you may spend behind bars.

Does this mean that you should fight for a “not guilty” verdict at trial? While this will be the best approach in some cases, it won’t necessarily be the best approach in others. Depending on the circumstances presented, it could be better to negotiate a plea bargain instead.

What Is a Plea Bargain?

A plea bargain is an agreement between a defendant and the prosecutor’s office. The agreement can either relate to the defendant’s charge or the defendant’s sentence. When a plea bargain relates to a defendant’s charge, the agreement is binding. However, when a plea bargain relates to a defendant’s sentence, the agreement is subject to the judge’s approval.

The “plea” aspect of a plea bargain is critically important. When you accept a plea bargain as a defendant in South Carolina, you are pleading guilty to the charge against you. Pleading guilty is a serious matter in its own right, and it can impact your life in various ways even if you are able to avoid fines and jail time as a result of your plea bargain.

What are the Benefits of Plea Bargaining for Defendants?

With this in mind, what are the benefits of accepting a plea bargain? Under the right circumstances, accepting a plea bargain can have several benefits, including:

1. Avoiding the Inherent Uncertainty of Trial

Regardless of the facts of your case, there are no guarantees when you go to trial. Even if you are innocent, the jury could still side with the prosecution. If you accept a plea bargain, your case won’t go to trial. You will have control over the outcome of your case, and you will be able to make an informed decision about what consequences you are willing to accept in light of all of the relevant circumstances at hand.

2. Reducing Your Sentence (and Possibly Avoiding Fines and Jail Time)

Accepting a plea bargain can significantly reduce your sentence. This is true whether you are facing misdemeanor or felony charges. If you negotiate a reduced charge, this could reduce the penalties that are on the table, and it could potentially eliminate any minimum sentencing requirements. If you negotiate a reduced sentence, the terms of your deal will be subject to judicial approval, but judges routinely approve sentencing deals negotiated between prosecutors and defense lawyers.

Negotiating a plea deal could also allow you to avoid sentencing all together. If you are eligible for one of South Carolina’s intervention programs, you may be able to enter into one of these programs as part of your plea bargain. If you complete the program successfully, this could protect you against any long-term consequences.

3. Reducing the Prosecution’s Caseload

Prosecutors in South Carolina carry enormous caseloads. As a result, they are often willing to resolve cases without going to trial. If you are willing to negotiate a plea deal and reduce the prosecution’s case load, doing so could earn you leniency that you wouldn’t necessarily get if you fought your charge in court.

4. Garnering Favor with the Judge

Negotiating a plea bargain can also garner favor with the judge. When evaluating defendants’ sentencing requests, judges often want to see that defendants have accepted responsibility and are showing remorse. If the judge assigned to your case sees that you are already taking steps toward reform, this could help when it comes to seeking a sentence of a fine, probation, time served, conditional discharge, or reduced period of incarceration.

5. Reducing the Costs of Your Case

Finally, negotiating a plea bargain can reduce the costs of your case. Preparing for trial takes time, and going to trial could substantially increase the cost of your defense. As a result, in some cases, accepting a plea bargain in order to reduce a defendant’s out-of-pocket expenses can be worth it.

Of course, you will need to weigh any potential savings against the costs of pleading guilty. If there is a chance that you could avoid these costs by fighting for a “not guilty” verdict at trial, then investing in your defense could ultimately prove to be the less-expensive option.

When Is a Plea Bargain a Good Option?

Taking all of this into account, when is a plea bargain a good option? Ultimately, the key consideration is whether negotiating a plea bargain is likely to result in a better outcome than taking your case to trial.

What charge (or charges) are you currently facing? What range of sentences are you currently facing? If you pursue a plea bargain, what can you reasonably expect from the prosecution? How strong is the evidence against you? What evidence (or lack thereof) can you leverage to your advantage?

These are just some of the questions that should guide your decisions regarding plea bargaining. If the circumstances point toward a plea bargain being your best option, you will need to work closely with your defense lawyer to strategically target a favorable deal.

With all of that said, it is important not to lose sight of something we discussed previously—accepting a plea bargain means pleading guilty to a crime. If you are innocent, then negotiating a plea bargain might not even be an option worth considering. On the other hand, if there is a risk that trial might not go your way, then accepting a deal that provides certainly with relatively minimal consequences could be your best path forward.

Request a Free Consultation with Rock Hill Defense Lawyer Michael L. Brown, Jr.

Deciding whether you should accept a plea bargain requires careful consideration of numerous factors that are unique to your case. If you have questions about seeking a plea bargain in South Carolina criminal court, we encourage you to contact us for more information. To schedule a free initial consultation with Rock Hill defense lawyer Michael L. Brown, Jr., please call 803-328-8822 or request an appointment online today.

7 Common Alcohol-Related Crimes in South Carolina

7 Common Alcohol-Related Crimes in South Carolina

In South Carolina, alcohol-related offenses can get you into serious trouble. Most of these crimes carry the potential for jail time, and they all carry consequences that can impact your life for years to come. As a result, if you have been charged with an alcohol-related offense, you need to take your situation seriously, and you should discuss your case with a South Carolina criminal defense attorney as soon as possible.

These are the Most Common Alcohol-Related Crimes Under South Carolina Law

While you can potentially face a number of different charges if you are accused of a crime involving alcohol in South Carolina (including charges that are not specifically alcohol-related), there are certain charges that are particularly common. Here are seven of the most common alcohol-related crimes in South Carolina:

1. Driving Under the Influence (DUI)

Under Section 56-5-2930 of the South Carolina Code of Laws, “It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired . . . .” This is South Carolina’s driving under the influence (DUI) law, and a key aspect of the law is that you do not need to have a blood alcohol concentration (BAC) of 0.08 percent or above in order to be found guilty in court.

As summarized by the South Carolina Department of Public Safety (SCDPS), “If you have a BAC of 0.08 percent or higher, it will be inferred that you were driving under the influence. If you have a BAC that is at least 0.05 percent but less than 0.08 percent, your BAC level may be considered along with other evidence to infer that you are under the influence.” In other words, your BAC is one factor that can be considered in determining whether you are driving under the influence, but you can be convicted of DUI even if the prosecutor’s office does not have reliable evidence of a high BAC.

2. Driving with Unlawful Alcohol Concentration (DUAC)

While your BAC does not have to be above 0.08 percent in order for you to face a DUI charge, if your BAC is recorded at 0.08 percent or above, this is enough on its own to support a charge for driving with unlawful alcohol concentration (DUAC). Section 56-6-2933 of the South Carolina Code of Laws plainly states:

“It is unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is eight one-hundredths of one percent or more.”

Furthermore, under Section 56-5-2933, DUAC is subject to mandatory minimum penalties. These include, “a fine of four hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days,” provided that the judge may order 48 hours of community service in lieu of imprisonment.

3. Felony DUI

In certain cases, individuals who are arrested for driving under the influence or driving with unlawful alcohol concentration can be charged with a felony DUI. A felony DUI charge can be filed in any case in which an allegedly drunk driver is accused of causing, “great bodily injury or death to another person.” For cases involving great bodily injury, penalties can include up to a $10,100 fine and 15 years in prison. For cases involving death, penalties can include up to a $25,100 fine and 25 years of incarceration.

4. Implied Consent Violation

Under South Carolina’s implied consent law, drivers are required to submit to a breath test when they get pulled over on suspicion of DUI. If you refuse the breath test, you can be charged with an implied consent violation, and you can automatically lose your driver’s license for 90 days for a first-time offense. This is true even if you were not actually drunk behind the wheel.

5. Boating Under the Influence (BUI)

Boating is a way of life for many South Carolina residents, and visitors from across the country flock to South Carolina’s lakes, rivers, and beaches every year. In South Carolina, boating under the influence (BUI) is a serious offense, and the penalties for BUI are similar to those for operating a motor vehicle while intoxicated or impaired. Under Section 50-21-112 of the South Carolina Code of Laws:

“It is unlawful for a person to operate a moving motorized water device or water device under sail upon the waters of this State while under the . . . influence of alcohol to the extent that the person’s faculties to operate are materially and appreciably impaired . . . .”

6. Open Container Violation

The South Carolina Code of Laws contains two separate sections that outlaw open containers of alcohol. Under Section 61-4-110, “[i]t is unlawful for a person to have in his possession, except in the trunk or luggage compartment, beer or wine in an open container in a motor vehicle of any kind while located upon the public highways or highway rights of way of this State.” Under Section 61-6-4020, “[i]f the cap or seal on the container has been opened or broken, it is unlawful to transport the liquors in a motor vehicle, except in a trunk, luggage compartment, or cargo area that is separate and distinct from the driver’s and passengers’ compartments.”

7. Public Disorderly Conduct

Finally, while South Carolina does not have a law is specific to public drunkenness, being drunk in public is considered a form of “public disorderly conduct” under Section 16-17-530 of the South Carolina Code of Laws. If you are, “in a grossly intoxicated condition or otherwise conducts himself in a disorderly or boisterous manner,” you can be charged with a misdemeanor and face penalties including up to a $100 fine and 30 days in jail.

Have You Been Charged with a Crime in South Carolina?

If you have been charged with DUI, BUI, an implied consent violation, or any other alcohol-related crime in South Carolina, you need experienced legal representation. To speak with a Rock Hill criminal defense attorney in confidence, call 803-328-8822 or request an initial consultation online now.

What Are the Consequences of a Criminal Conviction in South Carolina (Besides Fines and Jail Time)?

What Are the Consequences of a Criminal Conviction in South Carolina (Besides Fines and Jail Time)?

Regardless of whether you are facing a felony or a misdemeanor, you are facing fines and jail time if you have been charged with a crime in South Carolina. But, fines and jail time are not the only possible consequences of a criminal conviction. Getting convicted can lead to other penalties and have various “collateral” consequences as well, and these consequences can negatively impact your life long after you serve your sentence.

Additional Criminal Penalties in South Carolina

In many cases, criminal charges will carry additional penalties beyond fines and jail time. Some of these additional penalties are crime-specific (i.e. installation of an ignition interlock device for DUI), while others apply more generally. Depending on the charge (or charges) you are facing, additional penalties that could be on the table include:

  • Restitution – If you committed a crime that resulted in physical or financial harm to the victim, the judge may order you to pay restitution. Your obligation to pay restitution will be in addition to your obligation to pay any fines the court imposes.
  • Probation – Depending on the severity of the charge (or charges) against you, you may be eligible for probation. If the judge sentences you to probation, you will need to strictly comply with the terms of your release. If you fail to do so, you can be sent to jail immediately, or the judge can impose other penalties such as extending your probation or placing you on house arrest.
  • Community Service – Judges in South Carolina can require criminal defendants to complete community service either as a condition of probation or as an independent sentence. If you don’t complete your community service as required, you can face jail time and other penalties.
  • Mandatory Treatment – Individuals convicted of drug and alcohol-related crimes can be sentenced to mandatory substance abuse treatment in South Carolina. Individuals convicted of certain sex offenses can be committed to an intensive treatment program with the South Carolina Department of Mental Health.
  • Driver’s License Suspension or Revocation – If you are convicted of driving under the influence (DUI), driving without a license, or certain other serious traffic offenses, you can lose your driver’s license. While most convictions will result in a temporary license suspension, it is possible to lose your license permanently in some cases.
  • Sex Offender Registration – South Carolina requires individuals who are convicted of sex crimes to join the state’s Sex Offenders Registry. Once your name is on the Sex Offenders Registry, it will remain there permanently unless your conviction is overturned, reversed, or vacated.
  • Loss of Constitutional Rights – If you are facing a felony charge, a conviction will result in the loss of your right to vote. Convictions for felonies, domestic violence crimes, and other violent crimes also result in loss of your right to carry a gun.

Collateral Consequences of a Criminal Conviction in South Carolina

When you get convicted of a crime in South Carolina, your conviction goes on your criminal record. This record stays with you for life, unless your conviction eventually qualifies for expungement. With a criminal record, you will find that many aspects of your life are much more difficult. You may also no longer qualify for benefits and other opportunities that used to be available to you. For example, some of the collateral consequences of a criminal conviction in South Carolina include:

  • Government Benefit Eligibility – Social Security, Federal Student Aid, Supplemental Nutrition Assistance Program (SNAP), and other government benefit programs limit eligibility for individuals who have criminal convictions. Depending on the program, a misdemeanor or felony conviction may restrict or defer your eligibility, or a conviction may terminate your eligibility entirely.
  • Job Consequences – While federal law prohibits employers from denying job opportunities to individuals based solely on the fact that they have criminal records, employers can consider candidates’ records when deciding if they are the best choice for a particular position. As a result, convictions for DUI, drug crimes, violent crimes, and many other offenses will make it much more difficult for you to find a desirable job. If you are a student, a conviction could lead to suspension or expulsion, and this could impact your future job prospects as well.
  • Housing Consequences – Apartment complexes, property managers, and lenders can all consider applicants’ criminal backgrounds when deciding whether to offer a place to live or extend a loan. Even if you qualify for a loan, you may have to pay a much higher interest rate than someone who doesn’t have a criminal record.
  • Military Consequences – If you are a member of the Armed Forces in South Carolina, a criminal conviction could have consequences for your military career. In addition to your criminal trial, you could face a military court-martial, and this could have a number of potential negative outcomes.
  • Professional Discipline – Doctors, lawyers, accountants, architects, real estate agents, and other licensed professionals can also face disciplinary action as the result of a criminal conviction in South Carolina. Each professional licensing board sets its own rules and standards; and, depending on the circumstances presented, a criminal conviction could result in a reprimand, license suspension, or permanent license revocation.

These are not all of the consequences you can face as the result of a criminal conviction in South Carolina. From additional costs (i.e. increased insurance costs in the case of a DUI) to negative impacts on your relationships with family members and friends, a conviction can affect your life in many different ways. To protect yourself, you need to fight your charge (or charges), and you should discuss your case with a criminal defense lawyer right away.

Request a Free Consultation with a Rock Hill, SC Criminal Defense Lawyer

If you have been charged with a crime in South Carolina, we encourage you to contact us about your case. To schedule a free and confidential consultation with a Rock Hill, SC criminal defense lawyer, call 803-328-8822 or tell us how we can reach you online now.

How Does the Attorney-Client Privilege Work in South Carolina Criminal Cases?

How Does the Attorney-Client Privilege Work in South Carolina Criminal Cases?

When you hire an attorney to represent you, you are entitled to the protections afforded by the attorney-client privilege. This protection is critical, as it allows you to provide your attorney with as much information as possible. Criminal defense attorneys need to know the truth in order to provide effective legal representation, and the attorney-client privilege gives clients the confidence to share everything their attorneys need to know.

The attorney-client privilege is extremely broad. It applies to nearly all types of information clients might share with their attorneys; and, while there are a few exceptions, these exceptions are irrelevant in the vast majority of cases. If you need to hire an attorney but have concerns about sharing information that could be used against you, here are some important facts for you to know:

1. A Lawyer “Shall Not Reveal” a Client’s Confidential Information

The attorney-client privilege creates an obligation for attorneys to keep their client’s information strictly confidential.  The rules governing legal practice in South Carolina state:

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted [under an exception].”

The beginning of this quoted language is critical—a lawyer “shall not reveal” a client’s confidential information. Lawyers are required to protect what their clients tell them, and judges and prosecutors must respect this obligation. The attorney-client privilege is fundamental to the legal system in South Carolina, and it exists so that clients can get the advice and representation they need to defend themselves by all means available.

2. The Attorney-Client Privilege Belongs to the Client

Another critical aspect of the attorney-client privilege is that the privilege belongs to the client. This means that the privilege protects you, not your attorney. It also means that your attorney cannot waive your privilege, nor can your attorney choose what information to protect and what information to disclose. For your attorney to disclose your confidential information, either:

  • You must give your attorney informed consent (i.e. you might give your attorney informed consent to share information for purposes of negotiating a plea bargain);
  • The disclosure must be “impliedly authorized” (i.e. your attorney must need to share the information in order to present your defense); or,
  • An exception must apply (we discuss the exceptions to the attorney-client privilege below).

3. The Privilege Requires the Existence of an Attorney-Client Relationship

The attorney-client privilege only applies when there exists an attorney-client relationship. If you share information with an attorney who is not representing you, the privilege does not apply. This means that you should not input confidential information into an online form, and you should not share information that you want to protect with someone who is not your attorney. If you hire a criminal defense attorney to represent you, the attorney will make clear when the attorney-client privilege applies.

4. You Can Accidentally Waive the Attorney-Client Privilege

While your attorney must protect your confidential information, you must do your part to protect it too. If you share confidential information with someone other than your attorney—whether a police officer, prosecutor, family member, or friend—then the attorney-client privilege no longer applies. You will be deemed to have “waived” the privilege, and this could potentially mean that all of the information you shared with your attorney is now subject to disclosure.

Also, the simple fact that you have shared information with your attorney does not mean that it is protected entirely. For example, if the police execute a search warrant and lawfully seize your phone or laptop, they can use the information they obtain from your devices even if you have already shared it with your attorney. In other words, the privilege does not provide blanket protection for any information you may have told your legal counsel. You still need to be very careful to avoid disclosing self-incriminating information—and this means that you should generally exercise your right to remain silent.

5. There are Limited Exceptions to the Attorney-Client Privilege

As we’ve mentioned, there are exceptions to the attorney-client privilege in South Carolina. However, as we’ve also mentioned, these exceptions do not apply in the vast majority of circumstances. A lawyer can only disclose a client’s confidential information against the client’s wishes if the disclosure is necessary to:

  • Prevent the client from committing a criminal act;
  • Prevent reasonably certain death or substantial bodily harm;
  • Prevent the client from committing a fraud that is reasonably certain to result in financial harm and “in furtherance of which the client has used or is using the lawyer’s services;”
  • Prevent financial harm that is reasonably certain to result from the client’s commission of a crime or fraud “in furtherance of which the client has used the lawyer’s services;”
  • Obtain legal advice about the lawyer’s compliance with his or her professional responsibilities;
  • Establish a claim or a defense in a dispute with the client or in a lawsuit or criminal case against the lawyer “based upon conduct in which the client was involved;” or,
  • Comply with the law or court order.

Let’s say you were charged with marijuana possession, driving under the influence (DUI), or any of the other charges that usually lead to individuals’ first interactions with the criminal justice system. In a typical scenario, there would be no reason for any of these exceptions to apply. Your lawyer would have an obligation to protect all information you share about your case, and your lawyer would only be able to use this information to protect you.

Schedule a Free and Confidential Consultation with a Rock Hill Criminal Defense Lawyer

If you have been charged with a crime in South Carolina, hiring an experienced lawyer is the best thing you can do to protect yourself. To schedule a free and confidential consultation with a Rock Hill criminal defense lawyer, call 803-328-8822 or tell us how we can reach you online now.

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