SCRE 1101

(a) Courts and Judges. Except as otherwise provided by rule or statute, these rules apply to the courts

of South Carolina. The term "judge" in these rules includes justices of the Supreme Court; judges of the

Court of Appeals; judges of the circuit, family, probate and municipal courts; magistrates; masters-in-

equity; and special referees.

(b) Proceedings Generally. These rules apply generally to civil actions and proceedings, to criminal

cases and proceedings, and to contempt proceedings except those in which the court may act

summarily.

(c) Rule of Privilege. The rule with respect to privileges applies at all stages of all actions, cases, and

proceedings.

(d) Rules Inapplicable. The rules (other than with respect to privileges) do not apply in the following

situations:

(1) Preliminary Questions of Fact. The determination of questions of fact preliminary

to admissibility of evidence when the issue is to be determined by the court under

Rule 104.

(2) Grand Jury. Proceedings before grand juries.

(3) Miscellaneous Proceedings. Proceedings for extradition; preliminary hearings in

criminal cases; sentencing (except in the penalty phase of capital trials as required by

statute), dispositional hearings in juvenile delinquency matters, or granting or

revoking probation; issuance of warrants for arrest, criminal summonses, and search

warrants; and proceedings with respect to release on bail or otherwise.

Note:

Except for subsections (a), (b), and (d)(3), this rule is identical to the federal rule.

In subsection (a), the federal rule has been amended by adding the phrase "except as

otherwise provided by rule or statute." See Note to Rule 101. Further, the phrase

"courts of South Carolina" replaces the list of courts in the federal rule, and the term

"judge" is modified to include all levels of the unified judiciary. These changes

emphasize the fact that these rules are applicable to all levels of the unified judiciary.

Subsection (b) indicates that these rules apply generally to all civil and criminal

proceedings except for summary criminal contempt. This exception is consistent with

the relaxed procedural requirements for the imposition of summary contempt. Cf.

State v. Weinberg, 229 S.C. 286, 92 S.E.2d 842 (1956).

Regarding subsection (c), no South Carolina authority has been found to support the

proposition that the rules of privilege remain applicable even if the other rules of

evidence are inapplicable.

Regarding subsection (d)(1), no South Carolina authority has been found regarding

this proposition.

Subsection (d)(2) is consistent with the case law in South Carolina. See State v.

Williams, 301 S.C. 369, 392 S.E.2d 181 (1990) (the validity of an indictment is not

affected by the character of the evidence considered by the grand jury and, if valid on

its face, the indictment may not be challenged on the ground that the grand jury

acted on the basis of incompetent evidence); State v. Williams, 263 S.C. 290, 210 S.E.2d

298 (1974) (a grand jury indictment is not subject to dismissal on the basis that it was

founded upon hearsay evidence).

To be consistent with the terminology used in this State, the phrase "preliminary

hearings" in subsection (d)(3) replaces the phrase "preliminary examinations" in the

federal rule. In addition, the phrase "dispositional hearings in juvenile delinquency

matters" has been added to subsection (d)(3). Although no cases have been found

regarding the application of the rules of evidence to extradition proceedings,

subsection (d)(3) is generally consistent with prior law in this State. See State v. Dingle,

279 S.C. 278, 306 S.E.2d 223 (1983) (rules concerning hearsay inapplicable in

preliminary hearings); State v. Franklin, 267 S.C. 240, 226 S.E.2d 896 (1976) (before

imposing a sentence, judge may appropriately conduct an inquiry largely unlimited

either as to the kind of information he may consider or the source from which it may

come); State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621 (1967) (a search warrant may be

issued on an affidavit even when the affidavit is based on hearsay statements); State v.

Hill, 5 S.C.L. (3 Brev.) 89, 6 S.C.L. (1 Tread.) 242 (1812) (the court may hear and consider

affidavits when determining whether to admit a defendant to bail). However, as to

probation revocation, the rule may constitute a change in the law. See State v. White,

218 S.C. 130, 61 S.E.2d 754 (1950) (hearsay rules applied in review of probation

revocation).