C. The Initial Appearance

Rule 5 of the Federal Rules of Criminal Procedure governs the procedures that are invoked upon the arrest of a person suspected of having violated federal law.

If John Doe, our hypothetical bank robber, is arrested on the basis of a warrant issued upon a complaint, he will thereafter be taken, without unnecessary delay, before the nearest available magistrate for the purpose of entering his initial appearance into the federal system. If a complaint and warrant has been issued in Georgia and the subject is located in California, the subject is required under these rules to be taken before the nearest available magistrate or judicial officer.  The arresting officer, familiar with his/her district, will know where the magistrate’s office is located and will normally take custody of the prisoner and advise when he expects to arrive with his prisoner before the magistrate.

The arresting officer may elect to book the subject either before or after the initial appearance. Traditionally, this takes place before the initial appearance. Accordingly, after completion of the booking process, which usually takes no more than half an hour, the subject technically is ready to enter his initial appearance before the Court.

Succinctly stated, the purpose of the initial appearance is to advise John Doe of the charges against him, to advise him of his Sixth Amendment right to counsel and the right to a preliminary examination as set forth in the Federal Rules of Criminal Procedure, and also to establish and set bail in the case. The provisions of Rule 5 were enacted to ensure that an accused’s rights are protected and fully explained to him by a judicial officer. Additionally, this rule incorporated another right afforded to a criminal defendant by the United States Constitution in the Eighth Amendment: the right to apply for and make bail and to be released from custody pending trial. The right to apply for bail does not confer upon the applicant a concomitant and automatic entitlement to bail, although the vast majority of all federal defendants are admitted to bail at their initial appearance.

When John Doe, the Georgia bank robber, appears before a magistrate in California, he will be advised that a complaint and warrant have been issued by a magistrate in Georgia that has authorized his arrest. He will typically be provided with a copy of the complaint and the warrant if copies are available. If not, the magistrate will orally advise him of the charges. Additionally, to make sure that the defendant does not feel compelled to incriminate himself, the rules require that the magistrate before whom the initial appearance is made, advise the defendant of his Fifth Amendment right to remain silent and of the fact that if he does choose to say anything, his statements could be used by the government as evidence against him. After doing so, the magistrate will usually inquire whether the defendant has an attorney and whether he has contacted him. If the defendant has not had sufficient time in which to consult with his attorney prior to the initial appearance, he will be entitled to a continuance in the proceedings so that he may do so. If a particular defendant cannot afford to hire an attorney and he is able to convince the Court of this fact, the magistrate will appoint counsel free of charge to represent the defendant so as to insure that his rights are protected.

In the usual case where a subject has been arrested, a pre-trial services officer interviews him before he is brought before a magistrate for his initial appearance.  A pre-trial services officer is an agent of the Court, usually a member of the United States Probation Office, whose function in this context is to interview the subject prior to his initial appearance so as to assist the Court in determining in advance whether Court appointed counsel would be needed and what an appropriate bond might be. Like the Court itself and because his role is to be its impartial agent, the pre-trial services officer is solicitous of the defendant’s constitutional rights. He will advise the subject of his rights against self-incrimination and then the pre-trial services officer will advise of his desire to interview the subject so that he can obtain from him certain background information.  Of course, and because of his Fifth Amendment right, the defendant does not have to consent to this interview. If he does his job correctly, the pre-trial services officer will point this out to the subject. He will likely also explain, however, that it is not his desire or function to question the defendant about the facts of the offense with which he has been charged and that he desires the interview only to assist the magistrate in making preliminary determinations as to whether appointed counsel will be needed and what type of bail might be appropriate. Thus, in many cases, the magistrate will know in advance whether the defendant seems able to afford counsel or whether he has retained an attorney to represent him.  If he needs court appointed counsel, the magistrate’s office will make arrangements to have an attorney consult with the accused, if possible, prior to the initial appearance.

As the reader might guess, all of the above takes time. Even if a subject can afford counsel, he may not have conferred with counsel prior to his scheduled initial appearance. The indigent defendant may not have seen his court appointed attorney prior to his scheduled initial appearance because there was insufficient time to arrange for appointment of counsel and secure his attendance to the location where the subject is being held. Whenever possible, however, every effort is made to accomplish all of the above within the same day so that a defendant may apply for bail that day.

If counsel’s presence can be secured on the day of the initial appearance, either counsel retained or court appointed, the defendant will be afforded an opportunity to consult with him so that he may receive independent advice regarding the nature of the proceedings, the charges against him and his rights. Typically, after John Doe is arrested, booked, interviewed by a pre-trial services officer and afforded an opportunity to consult with counsel, he is then brought before a magistrate for his initial appearance. If an attorney’s presence cannot be secured on the same day of the arrest, the defendant will still typically be brought before the magistrate pursuant to Rule 5. In this instance, the magistrate himself will advise the subject of the nature of the proceedings and explain to him his various constitutional and procedural rights. The magistrate, however, will advise the defendant that he has an absolute right to continue the proceedings until he has had an opportunity to consult with an attorney. If John Doe exhibits an understanding of all of his rights and wishes to proceed without counsel, he will be advised he may do so without waiving his right to counsel at future proceedings. In short, if a defendant does not have an attorney at the initial appearance, it is the magistrate’s duty and obligation to protect the defendant’s right until such time as he does have the assistance of counsel.

As indicated in Rule 5, after the arrestee is advised of the charges pending against him and of his Fifth and Sixth Amendment rights, he is next advised of his rights to a preliminary hearing and his rights regarding bail. As specified in Federal Rule of Criminal Procedure 5.1, a preliminary hearing is a hearing held by the magistrate before whom the defendant makes his initial appearance for the purpose of determining whether there is probable cause sufficient to hold the defendant on the charges filed against him and to “bind him over” for grand jury action. Thus, even though the government has already made a showing under oath before a magistrate that there is probable cause to believe that a federal offense has been committed and that the defendant committed it, and even though a magistrate has already concurred in this finding by virtue of the issuance of an arrest warrant for the subject, nonetheless, the defendant is entitled under Rule 5 and 5.1 to contest these findings and, as is usually the case where a rule has been codified, common sense and basic notions of fairness dictate this policy.  It is possible that the wrong John Doe may have been arrested. Moreover, the facts in the complaint may be in error. At the initial appearance, therefore, the magistrate will advise the defendant of his right to a preliminary hearing so that he and his attorney may “examine” the information being used to hold him on the charges.

If the defendant indicates that he does desire such a hearing, the magistrate will set a date for the hearing no later than 14 days from the date of the initial appearance, if the defendant is in custody, and within 21 days if the defendant is not in custody per Rule 5.1(c).  The rule ensures that if a mistake has been made and a defendant does not make bail, that no more than 14 days shall elapse before the accused can examine the evidence being used to hold him.

John Doe has now been advised of the charges against him. He has conferred with a pre-trial services officer and his attorney. He has asked for a preliminary hearing. Before a date for the hearing can be set, it must next be determined by the magistrate whether he is entitled to be released on bail. As indicated, this determination controls when the preliminary hearing must be scheduled.

Next Section: D. The Bail Determination

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