Defendant Appears in Court

Within hours of the defendant’s arrest, he or she will make an initial appearance in court. Defendants are typically not represented by counsel at this hearing. They are advised of the charges they face, their rights are explained to them by the judge, and counsel is appointed if defendants cannot afford to hire their own lawyer. Defendants will be remanded to the custody of the U.S. Marshals Service at the conclusion of this hearing unless they are released, in which case conditions of release will be set.

Defendants are provided with the services of a court interpreter in all courtroom appearances when language is a barrier to the effective administration of justice.

If no indictment has been issued, the defendant will next have a preliminary examination hearing, at which the government will present its evidence. If the judge finds there is probable cause (or if an indictment has already been returned), there will then be a detention hearing, where it will be determined whether the defendant needs to be held in jail until trial. Both sides may present evidence at this hearing, as well as cross-examine the other side’s witnesses.

The decision whether to release the defendant is governed by the Bail Reform Act of 1984 and subsequent amendments to it. The law presumes that defendants should be released on personal recognizance or unsecured personal bond (that is, without putting up any money or other asset as security) unless the judge determines “that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”

The judge can put restrictions on defendants – such as requiring a secured bond, forfeiture of a passport, electronic monitoring of defendants’ location, requiring they remain in their home, etc. But the judge must choose “the least restrictive … condition, or combination of conditions, that … will reasonably assure the appearance of the person as required and the safety of any other person and the community.”

There are exceptions to the presumption that defendants should be released pending trial. The Act creates a rebuttable presumption that defendants should not be released under the following circumstances:

The defendant is accused of one of a list of crimes listed in the statute, and was previously convicted of committing one of the specified crimes while free on bail.

The judge finds there is probable cause the defendant committed a federal drug offense that carries a penalty of 10 years or more in prison.

The judge finds there is probable cause the defendant used a firearm to commit a felony.

To rebut the presumption and release a defendant, the judge must find that some condition or combination of conditions of release will assure defendants’ appearance at trial and safeguard the community.

Prior to the detention hearing, a member of the court’s Pretrial Services office will speak to the defendant and as many family members as possible. The officer will file a report with the judge, prosecutor, and defense counsel that makes a recommendation whether the defendant can be released and, if so, under what conditions. This is a recommendation only, and it is not binding on the judge.

A decision to release or detain a defendant that is made by a magistrate judge may be reviewed by a district judge on the motion of either party. (This is a kind of appeal, though the word “appeal” is not used to describe it.) Detention orders may also be appealed to the court of appeals after a district judge rules on them.

The last of the early hearings in a criminal case is the arraignment. The defendant’s counsel is asked three questions:

Does the defendant waive a formal arraignment, at which the indictment would be read in its entirety?

How does the defendant plead, guilty or not guilty?

Does the defendant request a trial by jury? (If not, the case will be decided by the judge in what is known as a bench trial.)

If a formal arraignment is waived – as it almost always is – the hearing can be over in five minutes.

At the arraignment, some judges also schedule the trial date and dates for motion hearings. Under the Speedy Trial Act, criminal defendants are entitled to a trial that begins no later than 70 days from the date the indictment or information was filed, or from the date the defendant appears before a judge, whichever is later. The defendant can waive the right to a speedy trial, or the judge can waive the requirements of the Act by finding that the interests of justice require it.

These four hearings can be held at a single time under certain circumstances. In some courts magistrate judges hold all of these hearings; in other courts, some are held by magistrate judges while others are held by District Court judges. In most courts, the District Court judge who will handle the trial is assigned to the case after the initial appearance; check with the clerk’s office for that judge’s name. Judges are assigned to cases at random, to avoid the possibility that prosecutors might “judge shop” their case to a jurist considered friendly to prosecution arguments.


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