How does a defendant appear in court?
The first step is an initial appearance (often referred to as a first appearance), before a judge of a lower court or a magistrate. If the defendant is in custody, jail officers will bring him or her to court. The police may not hold a defendant for more than a reasonable period of time without an initial or first appearance. In some jurisdictions, this may be twenty-four or forty-eight hours; in others, it may be seventy-two hours. A defendant on pretrial release must come to court as ordered. If a defendant fails to appear, the judge issues a bench warrant. A police officer locates the suspect and places him or her under formal arrest.
The purpose of the first judicial appearance is to ensure that the defendant is informed of the charges and made aware of his or her rights. It is also an opportunity for the defendant to end the proceedings quickly with a guilty plea. If the defendant was arrested without a warrant, as is common, this is the time at which the judge will determine probable cause to arrest.
The procedure for a first appearance for a misdemeanor and a felony is outlined below.
Misdemeanors
The charge or charges are read to the defendant, and penalties are explained.
The judge or magistrate advises the defendant of his or her right to trial, and right to trial by jury if applicable.
The right to counsel (legal representation) is explained, and the judge or magistrate appoints a lawyer if the defendant requests one and is found to be indigent (too poor to afford a private lawyer).
The defendant enters a plea. If counsel has been requested and appointed, or if the defendant indicates that private counsel will be retained, a plea of not guilty is entered. If the defendant enters a not guilty plea, a trial date will be set.
If the defendant pleads guilty, either a date will be set for sentencing or the magistrate or judge will impose probation, fines, or other sentences immediately. In some jurisdictions, in some cases, the judge or magistrate may allow a defendant to plead nolo contendere, or no contest. In many jurisdictions, a plea of no contest is equivalent to a guilty plea, except that the defendant does not directly admit guilt.
Assuming the defendant has pled not guilty, the judge or magistrate sets the amount ofbail (see page 569).Felonies
The process is quite similar here, except that there is the additional step of the preliminary hearing, as a safeguard warranted by the more serious nature of the charges. The charge or charges are read to the defendant, and the penalties are explained.
The defendant is advised of his or her right to a preliminary hearing and the purpose of that procedure, as well as his or her right to trial, and right to trial by jury in trial court.
The right to counsel (legal representation) is explained, and the judge or magistrate appoints a lawyer if the defendant requests one and is found to be indigent.
In most jurisdictions, the defendant does not enter a plea.
The matter is set forpreliminary hearing. This is a hearing to establish if a crime has been committed and if there is probable cause to believe that the defendant committed the offense(s) alleged in complaint.
The judge or magistrate sets the amount of bail.
American Bar Association Family Legal Guide Copyright © 2004 American Bar Association