Criminal Defense Lawyers

Initial Appearance

Initial Appearance: A Critical Stage in the Criminal Justice Process

The initial appearance is one of the most important stages in the criminal justice process. This is the first time a defendant appears before a judge after being arrested. The initial appearance serves several key functions that protect the rights of the accused and move the case forward. However, in many jurisdictions across the United States, initial appearances are often delayed for days or weeks, leaving defendants languishing in jail without access to counsel or information about the charges against them. This article will examine the purposes and procedures of initial appearances, problems with delayed appearances, and recommendations for reforming this vital phase of pretrial justice.

What Happens at Initial Appearance

After a person is arrested, they must be brought before a judge or magistrate “without unnecessary delay” for an initial appearance. This usually occurs within 24-48 hours of arrest. The initial appearance serves several important purposes:

• Informing the defendant of their rights: The judge advises the defendant of their constitutional rights, including the right to remain silent and the right to an attorney. The judge also explains the charges against the defendant. This is important so the defendant understands why they were arrested and can begin preparing their defense.
• Determining bail: The judge considers whether to release the defendant on bail pending trial. Factors considered include flight risk, danger to the community, and ability to pay bail. Many defendants are eligible for release at this stage.
• Appointing counsel: If the defendant cannot afford an attorney, the court will appoint a public defender or other counsel to represent them. This helps ensure the defendant has legal advocacy during the critical early stages of the case.
• Considering probable cause: The judge determines whether probable cause exists to justify the charges and continued detention of the defendant. If there is no probable cause, the case cannot move forward.
• Scheduling future court dates: The judge sets dates for the next steps in the case, such as the preliminary hearing and arraignment. This keeps the case moving efficiently through the system.

The initial appearance is not meant to be a full-blown trial or evidentiary hearing. However, it marks a pivotal moment when the defendant is formally notified of the charges against them and their constitutional rights kick in. According to the Supreme Court, the initial appearance is a “critical stage” that requires counsel to protect the defendant’s rights.

The Problem of Delayed Initial Appearances

While the law requires an initial appearance without “unnecessary delay,” in practice defendants are often forced to wait days or weeks for their first appearance. A study by the Department of Justice found that the average wait time for federal defendants is 3 days. However, some defendants wait weeks before seeing a judge.

These delays are caused by a number of factors, including:

• Overburdened courts and magistrates
• Weekend and holiday court closures
• Policies allowing law enforcement to delay appearances
• Lack of available defense counsel
• Inadequate procedures and standards

The consequences of delaying initial appearances are severe. Defendants are left to languish in jail cells without knowing why they were arrested, whether they’ll be released on bail, or if they’ll have legal counsel. According to a report by the Deason Criminal Justice Reform Center, defendants detained without an initial appearance are more likely to lose their jobs, housing, and custody of children. Delayed appearances also lead to longer periods of pretrial detention overall.

Prolonged detention without due process violates the Constitution. The Supreme Court has held that detainees have a right to a “prompt” probable cause determination and review of bail within 48 hours of arrest. Despite this, delayed initial appearances persist nationwide.

State Laws and Practices

Laws and practices governing initial appearances vary widely between states. A report from the Deason Center analyzed the initial appearance laws in all 50 states, D.C., and several territories. The report assigned letter grades assessing the adequacy of each jurisdiction’s laws. Over half of states received a ‘C’ grade or lower.

Some findings from the report:

• Only 10 states require an initial appearance within 24 hours of arrest. Many allow delays of 48-72 hours.
• Most states do not guarantee counsel at the initial appearance. Only 15 states clearly provide for appointed counsel.
• Very few states require automatic bail hearings if the accused is detained after the initial appearance.
• Some states allow non-lawyer magistrates or court clerks to conduct initial appearances.

For example, North Carolina law allows up to 48 hours before an initial appearance and does not guarantee counsel at the hearing. In comparison, federal law requires appearance before a magistrate “without unnecessary delay” and clearly provides for appointed counsel.

Recommendations for Reform

To address the crisis of delayed and ineffective initial appearances, the Deason Center and other advocacy groups have proposed the following reforms:

• Require appearance within 24 hours of arrest, absent extraordinary circumstances. This is the constitutional standard for a “prompt” hearing.
• Guarantee legal representation at the hearing, through expanded public defender services and assigned counsel.
• Hold automatic bail reviews within 72 hours for detained defendants. This allows counsel to revisit bail.
• Set statewide standards for initial appearance procedures, timing, and required notifications. Don’t leave standards up to individual counties and courts.
• Increase availability of judges, magistrates, and court personnel to conduct timely hearings. Expand court hours if needed.
• Develop online systems for scheduling initial appearances to bypass paperwork delays. Some courts have implemented virtual hearings as well.
• Require data collection and reporting on initial appearance timing, procedures, and outcomes to identify problem areas.
• Enact statutory reforms to comply with 24-hour and right-to-counsel standards. Reform is needed in most states.
• Increase funding for courts, public defense, and legal aid to support timely initial appearances.

The initial appearance sets the trajectory of a criminal case. When appearances are delayed or lack basic protections, defendants suffer and lose faith in the system. By prioritizing reform of this critical first step, states can uphold the Constitution and ensure fair and efficient justice.

The Critical Role of Defense Counsel

The right to counsel is essential for protecting defendant rights and moving cases forward at initial appearance hearings. Unfortunately, many states still do not guarantee counsel at this stage.

Defense attorneys play multiple important roles at initial appearances:

• Advise the defendant on their rights, the charges, potential consequences, and the legal process going forward. Many defendants don’t understand the basis for their arrest or how to navigate the system.
• Argue for pretrial release or reasonable bail. Counsel can present information about the defendant’s ties to the community, employment, and ability to pay bail. This helps judges impose fair conditions.
• Demand sufficient probable cause. Lawyers can scrutinize the charges and evidence and seek dismissal if probable cause is lacking.
• Identify deficiencies that could lead to wrongful conviction, such as improper police procedures, lack of Miranda warnings, etc.
• Request resources needed to build a defense, including investigators and experts.
• Seek mental health services if needed. Lawyers also look for competency issues.
• Schedule follow-up hearings and proceedings to advance the case appropriately.
• Provide continuity of counsel by remaining on the case going forward.

Studies show that outcomes improve significantly when counsel represents defendants at initial appearances. With representation, more defendants are released pretrial, bail amounts are lower, and cases reach disposition faster. Appointed counsel also reduces disparities. Despite the proven benefits, too many states still do not guarantee representation at this early juncture.

The Judge’s Role at Initial Appearance

Judges and magistrates have a legal and ethical duty to uphold the Constitution when conducting initial appearance hearings. Key responsibilities include:

• Informing defendants of their rights. Judges must clearly explain the right to remain silent, right to counsel, right to reasonable bail, and other procedural safeguards.
• Facilitating representation. If the defendant is unrepresented, the judge should inquire about eligibility for public counsel and appoint an attorney. Judges must halt proceedings until counsel is obtained.
• Reviewing probable cause. The judge or magistrate has a duty to scrutinize the factual basis for charges and detention. If probable cause is lacking, the accused should be released.
• Considering pretrial release. The judge must objectively weigh factors for and against release, tailored to the accused’s financial situation. Bail should not be used to punish or deliberately detain.
• Scheduling prompt follow-up hearings. Judges should set dates for preliminary hearings, arraignment, and bail review. This prevents indefinite detention.
• Providing procedural justice. Defendants who feel heard, treated with respect, and perceive the process as fair are more likely to comply with court orders.
• Making a record. Hearings should be recorded to document that proper procedures were followed.

While judges must remain neutral, they should take an active role in ensuring the initial appearance protects individual rights and moves the case forward efficiently.

Virtual Initial Appearances

During the COVID-19 pandemic, many courts shifted to conducting initial appearances through video conferencing instead of in-person hearings. Some jurisdictions are continuing virtual appearances even post-pandemic to increase efficiency.

Virtual technology can expand access to timely initial appearances. However, precautions must be taken to protect defendant rights in remote hearings:

• Defendants should still be brought before a judge within 24 hours of arrest, even if by video. Open-ended detention should not be allowed.
• Confidential attorney-client communication must be accommodated by providing private breakout rooms.
• Defendants must have access to counsel, whether in person or virtually. Existing counsel should participate.
• All participants must be clearly visible and audible during the proceedings. Glitches or tech problems could impair rights.
• Interpreters, disability accommodations, and other resources must still be provided.
• Recordings should include both audio and video to fully document the event.
• Judges must clearly explain rights, charges, and processes as they would in person.
• Defendants should have the option to appear in person if desired. Some prefer face-to-face proceedings.

If thoughtfully implemented, virtual technology can increase access without sacrificing the protections and objectives of the initial appearance. However, cost and efficiency should not outweigh fairness and constitutional safeguards.

The Road Ahead for Initial Appearance Reform

The initial appearance crisis causes immense harm to detained individuals, violates constitutional principles, and undermines faith in justice. But this critical phase of pretrial proceedings has not received the attention and reform it deserves.

Looking ahead, advocacy groups will continue public education efforts to highlight the extent of the problem. Impact litigation and legal challenges to unconstitutional delays also hold promise for spurring change. Legislative reforms are needed in most states to comply with Supreme Court standards, and those campaigns are gaining momentum.

Collaboration between courts, law enforcement, defenders, policymakers, and community groups will be key to implementing solutions. Innovation and technology, such as virtual appearances, can increase efficiency but must be thoughtfully implemented.

Above all, the intrinsic human rights and dignity of presumptively innocent defendants must remain at the forefront. Justice delayed is justice denied. By joining together to reform the broken initial appearance process, we can restore this vital constitutional safeguard and bring us closer to an equitable system for all.