If you’ve been charged with a crime in SC, what is the one outcome that you want more than anything?

If you’re like most of our clients, you want your case dismissed. Our first goal for every client charged with a crime is to get their case dismissed. When that’s not an option, however, it will come down to a choice of accepting a plea offer or trying your case to a jury.

Whether the end of the road is a dismissal, a plea, or an acquittal at trial, your SC criminal attorney must investigate your case, learn the facts of your case inside and out, and present those facts in a way that allows the prosecutor, judge, or jury to understand your defense.

Your Defense Depends on the Facts That can be Proven

A “defense” is a theory of your case that would result in a dismissal or an acquittal at trial. There are some common “legal defenses” that I will cover below, but let’s talk for a minute about the “theory of your case” and what that means…

The most effective defenses to criminal charges are based on the facts of your case. Your attorney must investigate your case and be able to effectively tell the story of your case – it could be your story, the story of an alleged victim, or the story of the police misconduct that happened in your case.

What “legal defense” your attorney chooses to present will depend on the facts that can be proven as part of your story – it could be a complex defense like entrapment or duress, or it could be as simple as “this is what happened, and it does not fit the elements of the crime…”

What Kinds of Defenses are Available in SC?

Some defenses are called “affirmative defenses.” Although the burden of proof is always on the State to prove beyond any reasonable doubt that you committed a crime, there are some defenses that you must prove at trial like:

Self defense:

If the facts as presented at trial fit the elements of self defense in SC, the judge will “charge” the jurors on the law of self-defense. The elements that you have to prove at trial are:

1. You did not “bring on the difficulty” yourself – if you provoked a fight, the court will not allow your attorney to argue self defense;

2. You believed that you were in immediate danger of death or serious injury;

3. Your belief that you were in imminent danger was reasonable; and

4. There was no reasonable way for you to avoid the confrontation.

On the other hand, you have no duty to retreat if retreating would put you in more danger, and, under South Carolina’s “stand your ground law,” you have no duty to retreat if you are in a place that you have a right to be such as your home, your car, or your place of work.


Duress is an affirmative defense that is seldom used and is extremely difficult to prove. A defendant can claim that he or she committed a crime “under duress,” meaning another person forced the defendant to do something illegal against his or her will, but, in most cases, the facts are ultimately not going to support the defense unless your co-defendant literally was holding a gun to your head…

For a duress defense to be successful, the defendant has to prove three things:

1. There was an immediate threat of great bodily injury or death.

2. There was a legitimate fear that the threat would be carried out.

3. There was no reasonable escape route.


Entrapment is another affirmative defense in SC that is seldom used and rarely successful. If law enforcement (or an informant working for them) entices you to commit a crime that you would not have otherwise committed, the jury can find you not guilty based on entrapment.

Because one element of the entrapment defense is that you were not “predisposed to commit the crime,” raising an entrapment defense can easily backfire. For example, if you are charged with distribution of cocaine after an informant harassed you to go get the drugs for them, you could raise the defense of entrapment.

The State will then be able to introduce testimony at trial of other times that you have sold drugs – witnesses and testimony that would not have been admissible but for the entrapment defense.


“Insanity” means that you did not understand the difference between right and wrong at the time of the alleged offense – to claim insanity, you must admit that you committed the offense and then you must present psychiatric testimony that you did not understand the difference between right and wrong at the time of the offense.

If you “win” an insanity defense, you are not released from custody – rather, you are automatically sent to an institution. As a practical matter, that never happens in South Carolina because, when you raise the defense of insanity, the judge is required by law to charge the jury that they can: 1) Find you not guilty; 2) Find you not guilty by reason of insanity (NGRI); or 3) Find you guilty but mentally ill (GBMI).

Neither the Court or the attorneys are permitted to tell the jury that “not guilty” by reason of insanity results in a civil commitment. They are also not allowed to tell the jury that “guilty but mentally ill” just means guilty, and that the defendant will go to prison as if they had been found guilty… and juries will chose guilty but mentally ill every time.

Competence to stand trial:

A defendant can be found not competent to stand trial – a high standard that is rare, but it is not technically a defense. If you are found not competent to stand trial, you will be committed to an institution where they will attempt to restore you to competency, and then you will go to trial.

Other Defenses Commonly Used in Criminal Cases in SC

Other common defenses include:

  • It didn’t happen. If a witness or alleged victim says a thing happened, but the evidence at trial shows that they were mistaken, the jury will find you not guilty;
  • SODDI. “Some Other Dude Did It.” Obviously, if you are able to show that you are not the person who committed the crime and it was someone else, the jury will acquit you.
  • Accident – accident is a complete defense to most crimes, because criminal intent is an element that must be proven by the State at trial. If you did not intend to commit a crime, it doesn’t make sense to punish you for it.
  • Lesser included offenses. For example, if you are charged with possession with intent to distribute (PWID) marijuana, there is no question that you possessed the marijuana, but you intended to smoke it and not to sell it, you may decide to ask the jury for a verdict of simple possession of marijuana, which is a lesser included offense that carries significantly less punishment.
  • Alibi. If credible witnesses can place you somewhere else at the time of the crime and the jurors believe the testimony, they will acquit you at trial. When you have an alibi defense in SC, you must provide the names and contact information to the prosecution in discovery which gives the prosecution the opportunity to talk to your alibi witnesses prior to trial…

Criminal Defense Lawyers in Myrtle Beach, Conway, Columbia, and Charleston SC

If you’ve been charged with a crime, whether it is a felony or a misdemeanor, your criminal defense attorney will need to begin the process of investigating your case and identifying all possible defenses as soon as possible.

Talk to one of our experienced criminal defense lawyers about your situation. To schedule a free consultation, call (843) 488-5000 or fill out our online form.

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