Could a municipal court mark a stack of absent defendants’ tickets “tried in absence” after an officer left?

Plain-English summary

Goose Creek’s police chief proposed letting an officer handle the cases with defendants present, ask the gallery whether anyone else was there, then leave while the judge later marked remaining tickets “tried in absence.” The Assistant Deputy AG reaffirmed a 1991 office opinion discussing the magistrates’ and municipal judges’ Bench Book. Its procedure began with proper notice, calling an absent defendant’s name, waiting a reasonable time, then conducting an evidentiary trial.

The author said the State still had to call the case and put up evidence even when the defendant did not appear. A sworn officer or complaining witness could present proof, and the judge would make findings. He recommended avoiding blanket questions, a stack of citations, and blanket officer statements. The letter did not say an absent defendant must be acquitted or that officers could never leave court; it rejected the proposed shortcut as a substitute for a trial.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was a defendant’s absence enough to convict without evidence? A: No. The opinion said the State still had to present evidence and the judge had to make findings.

Q: Could the officer and court process all remaining tickets with one gallery poll? A: The author recommended against that blanket method and called for the Bench Book’s individual trial procedure.

Q: What notice mattered before trial in absence? A: The quoted procedure required proper notice of trial time and place and an opportunity to appear before proceeding.

Background and statutory framework

The letter reaffirmed an AG opinion dated October 25, 1991 and quoted the South Carolina Bench Book for Magistrates and Municipal Court Judges on trial in absentia. The original did not cite a statute or reported case for the answer.

Citations and references

Prior AG opinion: October 25, 1991. Practice source quoted: South Carolina Bench Book for Magistrates and Municipal Court Judges.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-4-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/97june4becker.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOL ONY CONDON
ATTORNEY GENERAL

June 4, 1997

Harvey Becker, Chief of Police
City of Goose Creek Police Department
P. 0. Drawer 1768
Goose Creek, South Carolina 29445-1768

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Re: Informal Opinion
Dear Chief Becker:
You have asked for my opinion regarding the following factual situation:
[i]n an effort to relieve our police officers from their duties in the courtroom so that they may return to their duty stations in a more timely manner, it has been suggested that the officer call all of the cases that defendants are present in the courtroom for. At the end of those cases the officer would poll the gallery, asking if there is anyone else present for that officer. If there are no defendants present for the officer trying his cases at that time, he may so inform the judge and ask that the remainder of his cases be tried in their absence. The officer would then be permitted to leave the courtroom to return to his patrol duties and the judge would sign off the tickets as "tried in absence" after court.

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Some concern has been voiced that the defendant name and charge would not be placed on the record (tape), however, we have been advised by Court Administration that this is a normal practice of many of the South Carolina Courts and that they are unaware of any law prohibiting this practice .

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TELEPH ONE:

803-734-3970

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FACSIMILE: 803-253-6283

Chief Becker
Page 2
June 4, 1997
Law I Analysis

In Op. Atty. Gen., October 25, 1991, we commented at length regarding a person being tried in bis absence. In that opinion, we addressed the situation as to the procedure to be followed when individuals who fail to appear in court for traffic offenses where no bond has been posted, there has been no request for continuance and no request for a jury trial. We quoted from the South Carolina Bench Book for Magistrates and Municipal Court Judges, pages III 77-78 as follows:

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... an accused may be tried in absentia if he has been properly notified as to the time and place of the trial and does not appear at the appointed time ·... When a defendant who has been properly notified does not appear when the trial is scheduled,, the magistrate or municipal court judge should call bis name, or direct that the constable call his name, three times from the courthouse door. After waiting a reasonable time, the magistrate or municipal judge may proceed. A trial in absentia, as a procedural matter, is only slightly different from a trial at which the defendant appears. The complaining citizen or law enforcement officer is placed under oath and allowed to present bis evidence. Other witnesses. if any, are permitted to testify under oath. Additionally, the constable is summoned to testify that he called the defendant's name, he lets the record show that the defendant's name was called and that he did not respond. When the evidence is complete, the magistrate or municipal judge makes his findings. If the defendant is acquitted, the proceedings are terminated. If the defendant is found guilty, the magistrate or municipal judge imposes sentence, according to the penalty allowed for the offense by law. He may use the testimony presented, and any other facts at bis disposal, in determining the sentence to be imposed. If the sentence is a fine the judge may (but does not have to) apply the forfeited bond to the sentence; if the sentence is a jail term, a bench warrant is issued for the arrest of the defendant ....

Chief Becker
Page 3
June 4, 1997

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Referencing the above, the better procedure in the circumstance described by you would be to hold a bench trial in the manner set forth in the Bench Book and not simply sign off on a traffic citation. Following a conviction, procedures could be instituted under the NRUC or a bench warrant could be issued where appropriate. Therefore. I believe that a system in traffic cases whereby blanket questions are asked, a stack of citations are held up and a blanket statement by an officer is provided should be avoided. This opinion remains the opinion of this Office and is the procedure which the Office recommends should always be followed. In short, if a defendant is tried in his absence, the State must still call the case as recommended in the Bench Book and must put up evidence to try the defendant in his absence as it would any other case. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

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Robert D. Cook
Assistant Deputy Attorney General

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