1. POST ARREST
For our purposes, suppose the police arrested Mr. Smith based on an eyewitness statement that Mr. Smith entered a home, seemingly without consent, caused some property damage, and took some property from the home. After a brief investigation, the police locate Mr. Smith and arrest him. The police drive Mr. Smith to the police station and advise him of his Miranda warnings. Smartly, Mr. Smith invokes his right to an attorney and refuses to answer any questions. The arresting officers drive Mr. Smith to the local jail and turn him over to the custody of the sheriff.
What happens now? Well, since the police arrested Mr. Smith for a felony he will be ineligible for bail/release for 2-4 days depending the county where the offense occurred. If the police arrested Mr. Smith for a misdemeanor he would be able to post bail (typically a couple hundred dollars) and could be released as soon as that money is posted.
From the police officer’s perspective, his or her main focus post arrest will be finishing the police reports. Once those reports are finished, a police officer will deliver them to the local district attorney’s office and ask for criminal charges to be issued. Importantly, the police arrest information and criminal referral is only a recommendation to the prosecutor regarding a charging decision. Prosecutors are not bound by the crimes that the police officers would like to see issued. For example, in our scenario, the police would send the reports to the prosecutor indicating that they arrested Mr. Smith for Burglary (felony) and Criminal Damage to Property (misdemeanor). The prosecutor could decide to issue both charges, issue only one of the charges, or not issue any charges at all if there was not sufficient evidence to support a conviction.
2. POST ARREST UP TO THE INITIAL COURT APPEARANCE
Again, in our example, the police arrested Mr. Smith for at least one felony so he would be ineligible for bail for up to 48 hours from the time of arrest. Thankfully, in our country we do not hold people in custody indefinitely while the case is pending. The law requires that a judge or judicial court commissioner must review the circumstances surrounding a person’s arrest and the legitimacy of his or detention within 48 hours.
This proceeding is called a Riverside Hearing. In most jurisdictions, the Riverside Hearings are accomplished by the arresting officer drafting an affidavit that summarizes why the police believe the arrestee committed one or more crimes. The judge then reads the affidavit and makes a “probable cause determination.” The probable cause determination simply means that the judge believes that the affidavit alleges sufficient facts to indicate that the person “probably committed” a certain crime. All things considered, it is a very low standard that is met in 99% of cases. Keep in mind; this is a much lower standard of proof than what would ultimately be required to support a conviction at trial.
If the judge finds probable cause, he or she will authorize the continued detention of an arrestee for up to an additional 2-3 days again depending on the particular county where this incident occurred. During this timeframe, the arrestee is ineligible for bail and must wait in custody for his or her initial appearance in court. In our example, if the police arrested Mr. Smith for a misdemeanor, and he posted bail, he would receive a summons and a copy of the complaint in the mail or personally served upon him. A summons is simply a court order to appear in court on a certain date and time. The complaint is the formal legal charging document that initiates every criminal case.
3. INITIAL COURT APPEARANCE
The initial court appearance is usually pretty brief (1-10 minutes). The main actions that occur at the initial appearance are:
- The judge will provide the defendant with a copy of the criminal complaint. The complaint will list the charge or charges and the maximum possible penalty upon conviction.
- The judge will make an initial probable cause determination. Put simply, the judge will review the complaint and determine if the “facts” alleged by the State indicate that the defendant probably committed the charged offenses.
- If the defendant appears in court without an attorney (referred to as proceeding pro se), the judge will inform the defendant of his or her right to counsel. If the defendant could not afford an attorney s/he may be eligible to receive an attorney from the State Public Defender’s Office.
- For defendants like Mr. Smith who are charged with one or more felonies, the judge will inform the defendant of his or right to a preliminary hearing. The preliminary hearing will be discussed in more detail in a future blog.
- The judge will set Mr. Smith’s bail.
This last action warrants additional discussion. Perhaps the most important action at the initial appearance is the initial judicial determination regarding bail. Generally speaking, the two most commons options for bail are either a signature bond or cash bail. A signature bond means that the defendant will simply sign his or her bail form and agree to return to court at all future court dates.
Cash bail means that the judge believes the defendant will need a further incentive to voluntarily return to court in the future. As such, the judge will require the defendant to post a certain amount of money before he or she will be released from custody. Once the money is posted (either by the defendant or a third party) the defendant will be released and the money will be held on deposit until the case is over. One important point to consider is that if there is conviction in the defendant’s case, any bail money would be used to pay the court costs and possibly restitution at the end of the case. Thus, if a third party posts Mr. Smith’s bail, there is a chance that person would not get any money back at the end of the case depending on the amount of bail posted and the total amount of court costs and restitution.
Besides deciding between a signature bond and cash bail, the judge may also impose certain non-monetary conditions of bail such as a no-contact order with one or more persons, a prohibition against consuming drugs or alcohol and the like. The non-monetary conditions of bail should be tied to the specific facts and circumstances of the case.
In most counties, the commissioner will first ask the prosecutor for his or her bail recommendation. Generally speaking, the prosecutor’s recommendation carries a lot of weight with the judge or commissioner depending on the county. After the prosecutor gives his or her argument the defendant or his or her attorney will get an opportunity to make an argument for what the defense believes should be appropriate bail conditions. Once both parties have made their respective arguments, the judge will make his or her decision and announce the bail conditions. If the defendant does not agree with the bail determination, the defense attorney can file a motion to modify conditions of bail and make additional argument as necessary at a future court date. Most counties will not review bail for 3-5 days after that initial determination however.
For felony defendants, the next step in the process will be the preliminary hearing. For those charged with misdemeanors, a status conference or final pretrial conference will be the next step. Both will be discussed in future blogs.
4. PRACTICE POINTERS
If you are charged with a crime, here are some recommendations to make sure your criminal case gets off to the best possible start.
- If you have been released from custody and given a future court date for the initial appearance, be sure to attend court. If you fail to appear in court the judge will issue a warrant for your arrest. Missed court appearances will also increase the likelihood that the judge will impose cash bail.
- Consult with an experienced criminal defense attorney as soon as practical. As a general rule, the earlier you can get an attorney on board and fighting for your rights the better off you will be.
- Develop a plan for bail. Whether a person is arrested and held in custody until the initial court appearance or released from custody and summoned back to court, the odds of obtaining favorable bail conditions improve greatly if you can demonstrate: (1) a stable residence, (2) ties to the community or unlikely risk to flee the jurisdiction, (3) proof of employment, and (4) any efforts at counseling or treatment. The importance of these factors will vary by case.
- Keep all of your court documents. Anything you are provided in court is an important document for you to review and understand. Upon completion of the initial appearance you should receive and retain a copy of the criminal complaint and your bail form. These documents can also be shared with an attorney during discussions regarding representation if you were unable to consult with an attorney prior to court.
Each case is different and presents its own challenges. Likewise, each jurisdiction has its own wrinkles to the main actions discussed above. Thus, it is important to consult with an attorney that knows the local practices and can accurately advise you as to the specific actions likely to occur during your court appearance. I hope you found this information helpful. Please feel free to contact me at email@example.com with any questions or concerns.