South Carolina

Overview

South Carolina is emblematic of many states where the constitutional mandates of Brady and Giglio exist in theory but lack meaningful infrastructure to ensure compliance in practice. The Palmetto State has no statutory requirement for law enforcement agencies to report officer misconduct to prosecutors, no state-mandated system for prosecutors to track or disclose credibility-impairing behavior, and no centralized Giglio list. Instead, disclosure practices are decentralized across 16 judicial circuits and hundreds of law enforcement agencies—producing inconsistent results heavily reliant on prosecutorial discretion. Although the South Carolina Law Enforcement Training Council (SCLETC) has the power to decertify officers, there is no systemic linkage between that process and prosecutorial obligations. As a result, officers with sustained misconduct may continue to testify in court without defense counsel or even prosecutors knowing of their compromised credibility. The state’s fragmented approach leaves truth and candor at the mercy of silence.

Brief Description of Legal Landscape

Criminal prosecutions in South Carolina are conducted by Circuit Solicitors, who are elected to serve the state’s 16 judicial circuits. These solicitors, alongside their assistant solicitors (prosecutors), operate largely independently. The South Carolina Attorney General can intervene in select statewide cases, but has no supervisory role over local prosecutors.

Disclosure obligations are guided by:

• South Carolina Rules of Criminal Procedure, Rule 5(a)(1)(C): Requires disclosure of “evidence favorable to the defendant” but does not explicitly mention impeachment evidence.

• South Carolina Rules of Professional Conduct, Rule 3.8(d): Requires prosecutors to disclose all evidence tending to negate guilt or mitigate punishment, including credibility-related material.

• Freedom of Information Act (FOIA), S.C. Code § 30-4-10 et seq.: Allows public access to some government records, but law enforcement internal affairs records are often withheld as “personnel matters.”

Law enforcement officers are certified through the South Carolina Criminal Justice Academy (SCCJA) and subject to oversight by the SCLETC, which may decertify officers for misconduct. However, there is no statutory mandate that SCLETC disciplinary actions be disclosed to prosecutors, courts, or the public for Giglio purposes.

Historical Context

South Carolina has faced a number of highly publicized incidents involving law enforcement misconduct that underscored the absence of an effective disclosure system.

In 2015, the fatal shooting of Walter Scott by North Charleston Officer Michael Slager—and the initial false statements provided by the officer—highlighted the systemic risk posed when officers with credibility issues go unchecked. The case became a national symbol of police dishonesty and prosecutorial reliance on officer narratives without proper scrutiny.

Following this, media outlets and watchdog groups began probing the extent to which officers with known misconduct histories continued to serve and testify. In 2018, the Post and Courier found dozens of officers had been allowed to resign quietly in lieu of termination, often resurfacing in new jurisdictions—sometimes testifying in court—without disclosing prior infractions to prosecutors or defense attorneys.

Despite these revelations, the state has not passed legislation requiring law enforcement to report misconduct that may impair courtroom testimony. Disclosure continues to depend on informal communications, defense investigations, or chance.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

South Carolina’s Constitution guarantees due process and confrontation rights under Article I, Section 3 and Section 14, in parallel with federal protections.

Key rules and statutes include:

• Rule 5, SCRCrimP: Requires pretrial discovery of favorable evidence, but lacks specificity regarding impeachment evidence or internal misconduct findings.

• Rule 3.8(d), South Carolina Rules of Professional Conduct: Requires prosecutors to disclose evidence that tends to negate guilt or mitigate punishment.

• S.C. Code § 23-23-150: Grants the SCLETC authority to revoke officer certification but does not tie those decisions to prosecutorial duties.

• S.C. FOIA § 30-4-40(a)(2): Allows agencies to withhold records of law enforcement discipline unless they choose to release them.

The state lacks any statute or court rule that compels prosecutors to maintain Giglio lists or mandates interagency disclosure of officer misconduct.

Relevant Case Law and Judicial Interpretations

• State v. Kennerly, 331 S.C. 442 (1998): Affirmed that the suppression of exculpatory evidence violates due process but applied a strict materiality test.

• State v. Robinson, 305 S.C. 469 (1991): Acknowledged the duty to disclose impeachment material, including promises made to key witnesses.

• State v. McCoy, 324 S.C. 1 (1996): Clarified that non-disclosure of favorable evidence could warrant a new trial if material.

These cases establish the state’s formal acceptance of Brady-related duties but fall short of requiring procedural enforcement mechanisms. Courts have not mandated systemic solutions to ensure compliance.

Implementation and Enforcement

Law Enforcement Policies and Training

Law enforcement agencies across South Carolina conduct their own internal affairs investigations. Findings of dishonesty or misconduct may result in discipline or decertification—but there is no obligation to notify local solicitors or courts of such outcomes. Departments are not required to maintain Brady/Giglio policies or share internal findings with prosecutors.

The SC Criminal Justice Academy trains officers statewide, but instruction on Brady/Giglio implications is not standardized or mandatory. Officers may not be informed that sustained misconduct findings can impair their ability to testify.

There is no statutory or regulatory mandate that officers with credibility concerns be flagged before they take the witness stand. Most solicitors’ offices lack formal policies for tracking such information.

Some individual solicitors—especially in larger jurisdictions such as Charleston, Greenville, or Richland County—may keep internal lists of problematic officers, but these are voluntary, informal, and non-public. Smaller counties often have no equivalent process, and there is no requirement that such information be shared between jurisdictions.

Oversight Mechanisms and Accountability Structures

There is no state-level body charged with auditing prosecutorial compliance with disclosure obligations or enforcing consistency in Giglio practices. The South Carolina Bar disciplines attorneys, including prosecutors, but public sanctions for Brady violations are exceedingly rare and typically limited to egregious or repeated misconduct.

The SCLETC decertifies officers based on statutory criteria, including criminal conduct or conduct unbecoming of an officer, but does not notify prosecutors when an officer under Giglio scrutiny is allowed to keep or regain certification.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Michael Slager – North Charleston (2015)
   Slager initially claimed he shot Walter Scott in self-defense, and internal reports supported his version—until bystander video showed Scott fleeing when shot. The case revealed how easily false narratives can enter the courtroom without oversight or documentation of credibility concerns.

2. Orangeburg Officer Misconduct Cases (2020)
   Local media revealed that several officers resigned amid investigations but were allowed to avoid formal discipline. These officers were later hired in new jurisdictions. None of the prior departments notified prosecutors of the officers’ histories, and no mechanism existed to prevent them from testifying in criminal cases.

3. Lexington County Sheriff’s Office Credibility Disputes (2019–2021)
   An internal scandal involving multiple officers accused of dishonesty and misconduct did not result in disclosure to the solicitor’s office. Officers remained on duty and testified in court until media exposure prompted administrative review.

Outcomes and Implications

These cases show a recurring pattern: officers with credibility issues continue to testify in criminal cases without disclosure to the defense. Prosecutors often lack visibility into internal discipline, and there is no requirement for law enforcement to reveal sustained misconduct findings—even those involving dishonesty or excessive force.

Challenges and Gaps

Identified Issues within the State’s System

• No Prosecutorial Giglio Lists: Solicitors are not required to track or share information about untrustworthy officers.

• No Mandatory Notification from Law Enforcement: Departments can discipline officers for dishonesty without informing prosecutors.

• Confidential Personnel Records: FOIA exemptions allow agencies to withhold internal affairs files unless ordered by a court.

• Lack of Oversight and Training: Neither the SCLETC nor the Attorney General audits or trains prosecutors and law enforcement on Brady/Giglio compliance.

Legislative and Institutional Barriers

Efforts to reform police transparency have faced opposition from law enforcement associations and elected officials wary of political backlash. While South Carolina has strengthened decertification powers in recent years, those changes have not been accompanied by disclosure mandates or transparency reforms. There is no political appetite—at present—for a centralized Giglio registry or enforcement agency.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Prosecutorial Tracking of Giglio Material
   Require solicitors to track and maintain internal lists of officers whose credibility is impaired and ensure these lists are reviewed in all relevant prosecutions.

2. Create a Statutory Duty for Police to Report Misconduct
   Require all law enforcement agencies to notify the local solicitor’s office within 30 days of any sustained misconduct involving dishonesty, bias, or rights violations.

3. Integrate SCLETC with Prosecutorial Systems
   Mandate that the SCLETC share information about officer decertifications or suspensions with the relevant solicitor offices.

4. Amend Rule 5 to Clarify Impeachment Disclosure
   Expand the rule to explicitly include disciplinary findings, even when not requested, as mandatory pretrial discovery.

Recommendations for Enhanced Transparency and Accountability

1. Amend FOIA to Allow Access to Sustained Findings
   Modify state law to permit disclosure of sustained misconduct involving truthfulness, with privacy safeguards as needed.

2. Establish a Statewide Officer Misconduct Registry
   Maintain a sealed, prosecutor-accessible database of officers with credibility-related misconduct records.

3. Standardize Training Requirements
   Require SCLETC and the South Carolina Bar to implement annual training for law enforcement and prosecutors on Brady/Giglio obligations.

4. Create a Disclosure Compliance Unit
   Establish a dedicated entity to audit prosecutorial offices for disclosure practices and issue annual public reports.

Conclusion

South Carolina’s justice system rests on the assumption that law enforcement officers can be trusted. But trust, without verification, is not candor. The absence of reporting mandates, Giglio tracking systems, and public transparency enables officers with documented misconduct to continue testifying—unseen, unexamined, and unchallenged. Candor requires more than good intentions; it requires structure, accountability, and the courage to confront uncomfortable truths. Until South Carolina codifies these principles, its promises of justice remain incomplete.