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Explanation of Making the Initial Appearance in Federal Court

Posted by John Rogers | Jan 08, 2021 | 0 Comments

The first appearance before a judge in a federal criminal case is called the initial appearance. A criminal defendant can be charged by way of indictment or complaint. The initial appearance is arguably one of the most important hearings in federal court because a judge will decide whether to release or permanently detain the defendant.

An accused my appear via summons. This occurs when a defendant has been formally charged and the court informs the defendant by mail to appear in court at a certain date and time. Ordinarily, a defendant appears after receiving a summons when there is no issue of the defendant being a flight risk or danger to the community. Notice to appear by way of summons is very common for federal misdemeanor cases.

However, when felony charges are brought against a defendant, the accused is typically surprised early in the morning with agents at their front door. The purpose is either to arrest the defendant or arrest and search their home for evidence. When an accused is arrested for a federal crime, it is usually during the early morning hours. The accused is then immediately transported to court for processing and to make their initial appearance that afternoon.

If a suspect retains counsel, then the attorney can arrange a surrender date with the prosecutor to avoid the public embarrassment of agents surprising the accused at their home or work.

Before an accused makes their initial appearance before the magistrate judge, they are interviewed by a member from U.S. Pretrial Services. Pretrial services is not a party to the case, but rather a division of the court. A pretrial services officer will question the defendant about their background and subsequently make a determination about whether the accused should be released and the terms of their release.

The pretrial services officer will ask about the defendant's prior criminal history, bank accounts, assets, place of birth, employment information, alcohol or drug dependency, and the nature of the charges. The officer will then draft a report to the judge of their findings and recommendation. After questioning the defendant, the pretrial services officer will then contact a third party to corroborate the defendant's representations. This is usually a spouse, family members, or close colleague.

In the interim period from when the accused is interviewed by pretrial services and before appearing before the judge, the defendant must review and acknowledge a statement of their constitutional rights. A designation of attorney of record must also be filled out and filed with the clerk.

The judge will call the case after the court reviewed the pretrial services report. The pretrial services report is confidential, but the prosecutor and defense attorney are entitled to review the report.

If the defendant is charged in a complaint, the court will set a date for preliminary hearing and a date for arraignment. If the defendant is charged in an indictment, the defendant will plead not guilty, then the case will be assigned to a U.S. District Judge for trial. A trial date will be set within 70-days from the date of the defendant's arraignment on the indictment.

The judge will then inquire about bond. The parties will have the opportunity to present arguments about their respective positions regarding the defendant's release. The judge is not required to follow the recommendation of pretrial services. If the judge believes the defendant is neither a flight risk or danger to the community, then the defendant will be ordered released on certain terms and conditions. If the defendant is found to be a danger or has motivation to flee, then he or she will be permanently detained pending trial.

The initial appearance in federal court is extremely important because it is the hearing to determine whether the accused is able to go home that day. In this unfamiliar and daunting situation, someone facing federal charges must secure competent counsel. Contact us today to schedule a risk free consultation with an experienced federal criminal defense attorney.

About the Author

John Rogers

*State Bar Board Certified Specialist in Criminal Law *Top 40 Under 40 by the National Trial Lawyers Association *Selected “Rising Star” by Super Lawyers Magazine *Federal Criminal Defense Representation Nationwide *Personalized Attention & 24/7 Accessibility


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