Episode 19 – Criminal Law Primer

In Episode 19 of the Direct Examination podcast, hosts Dayne Phillips, Amber Fulmer, and Joseph Bias deliver a practical primer on criminal defense in South Carolina. Led by criminal defense attorney Dayne Phillips, the hosts guide listeners through the critical stages of a criminal matter—from the initial encounter or interrogation by law enforcement to selecting defense counsel, invoking Fifth Amendment rights, and navigating bond hearings.

The discussion demystifies Miranda warnings, Terry stops, attorney-client privilege exceptions, and Rule 5 discovery (“motions”). Furthermore, Phillips dispels common myths regarding public defenders, explains why the vast majority of state and federal cases resolve through plea agreements rather than trials, and breaks down standard flat-fee criminal billing structures.

Key Topics Covered

  • Interacting with Law Enforcement: The fundamental rule to never provide a statement without an attorney, invoking Fifth Amendment rights unequivocally, and asking “Am I free to leave?”.

  • Selecting Criminal Defense Counsel: Evaluating word-of-mouth referrals versus online searches, free consultations, and full transparency regarding case facts.

  • Attorney-Client Privilege Exceptions: Understanding strict confidentiality protections alongside narrow exceptions (prevention of future bodily harm/death and the crime-fraud exception).

  • Vindication of Public Defenders: Debunking public defender stereotypes and recognizing their dedication, heavy caseloads, and systemic underfunding.

  • Miranda Warnings & Custodial Interrogations: What triggers Miranda rights, holding firm on silence, and clarifying that Miranda violations suppress statements rather than result in automatic case dismissals.

  • Bail, Bond, & Resolution: Statutory 24-hour bond hearing mandates, PR versus Surety bonds, Rule 5 discovery, and why 94–95% of state cases resolve through guilty pleas.

Transcript

Amber Fulmer: Welcome, y’all, to the Direct Examination Podcast. My name is Amber Fulmer.

Dayne Phillips: I’m Dayne Phillips.

Joseph Bias: And I’m Joseph Bias.

Amber Fulmer: Pause and give us five stars on iTunes, Apple, or Android, and leave witty reviews! Email us your feedback, guest ideas, or hate mail at directexaminationpodcast@gmail.com. Follow us on Instagram, Facebook, and Twitter!

Dayne Phillips: Disclaimer: Your use of this podcast does not create an attorney-client relationship between us, the hosts, or our respective firms or their attorneys. An attorney-client relationship is only formed by the execution of a written fee agreement. This podcast is for informational purposes only and should not be taken as legal advice on any particular matter or facts. Contact an attorney for advice on specific legal problems.

Joseph Bias: Today’s episode is focused on criminal law. Dayne is our resident multi-court experienced expert on criminal defense. Dayne, let’s say Bob gets approached by an investigator—what should Bob know first?

Dayne Phillips: First off, when an investigator knocks on the door or calls saying, “Hey, we’d just like to talk to you about a little thing,” you should never talk to law enforcement regarding a criminal investigation without seeking the advice of an attorney first. What you say can be manipulated. The only words out of your mouth should be: “I want an attorney. I’m not answering any questions,” and then close the door. That’s why the founders gave us the Fifth Amendment.

Joseph Bias: How do people usually find a criminal defense lawyer?

Dayne Phillips: Word-of-mouth from someone you trust is best. Many people search online, which can be problematic because any lawyer can look good on a website. Most criminal defense attorneys offer free consultations. During that consultation, you must be 100% upfront and honest about the facts—including the bad stuff. I need to know where the landmines are before we walk into court.

Joseph Bias: What about attorney-client privilege?

Dayne Phillips: If you tell your lawyer the complete truth, he or she cannot tell anyone. There are only two narrow exceptions: if a client states an intent to commit a future crime causing severe bodily harm or death, or under the crime-fraud exception where a lawyer and client are actively conspiring in criminal activity.

Joseph Bias: What is your perspective on public defenders?

Dayne Phillips: Public defenders get an undeserved bad rap. Just like private practice, there are great public defenders and bad public defenders. The difference is you don’t get to choose your public defender. Public defenders are beyond overworked, underpaid, and fighting a system stacked against them. They do the job because they passionately believe in due process and constitutional rights.

Joseph Bias: What triggers Miranda rights?

Dayne Phillips: Miranda warnings are triggered by custodial interrogation. First, ask the officer, “Am I free to leave? Am I being detained?” If you are not free to leave, you are in custody. If law enforcement intends to question you while in custody, they must read your four-part Miranda rights.

Once you unequivocally state you want a lawyer, police are required to cease questioning. Do not re-initiate conversation or ask questions, or a judge may rule you waived your right to silence. Also, if police fail to read Miranda rights, it does not automatically dismiss your case—it simply means your statement may be suppressed and excluded as evidence at trial.

Amber Fulmer: What about Terry v. Ohio stop-and-frisks?

Dayne Phillips: Under Terry v. Ohio, if an officer has reasonable suspicion that you are engaged in criminal activity and reasonably believes you are armed and dangerous, they can perform a limited outer-clothing pat-down for weapons.

Joseph Bias: What happens after an arrest regarding bond?

Dayne Phillips: By law, you must be brought before a magistrate or bond judge within 24 hours of arrest. The judge will set either a Personal Recognizance (PR) bond—allowing release without paying upfront money—or a Surety bond. For a surety bond, defendants typically hire a bondsman, paying a competitive fee (usually 3% to 10% of the total bond).

Joseph Bias: How many criminal cases actually go to trial versus resolving through pleas?

Dayne Phillips: In South Carolina state court, roughly 94% to 95% of cases resolve through guilty pleas. In federal court, it’s 97% to 98%. Trials happen when a client is 100% innocent, or when the state overcharges and the parties cannot reach a reasonable agreement.

Joseph Bias: What is “Rule 5” discovery?

Dayne Phillips: Under Rule 5 of the South Carolina Rules of Criminal Procedure (along with Brady v. Maryland), “motions” or Rule 5 requests compel the prosecution to disclose the state’s evidence and exculpatory materials to the defense.

Joseph Bias: How do fee agreements work in criminal defense?

Dayne Phillips: Almost all criminal defense attorneys bill on a flat-fee basis (either paid in full upfront or through a retainer and payment plan). Contingency fees are strictly prohibited in criminal cases.

Joseph Bias: Listener question from Brett: What is your favorite rule of evidence?

Dayne Phillips: Rule 403—excluding relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.

Amber Fulmer: Mine is Statement by a Party Opponent—an exception to hearsay!

Joseph Bias: If you face criminal charges, do not try to handle it yourself! Seek experienced criminal defense representation. Follow us @SCLawPod on Twitter, Facebook, and Instagram, Joseph @JosephPBias, Dayne @SCCrimLawyer, and Amber @actredjudicata. See y’all next week for our season finale!