The initial appearance generally starts the criminal process in court. At this first hearing—sometimes referred to or combined with an arraignment or advisement hearing—defendants learn of the charges filed against them and their constitutional rights. This hearing is likely just the first of many hearings to come.
What Is the Initial Appearance?
The initial or first appearance sets the ball in motion, so to speak—it signals the start of the criminal case. A primary purpose of this hearing is to provide the defendant with important information, including:
- the criminal charges filed against them—what crimes the prosecutors believe the defendant committed and their possible penalties, and
- their basic constitutional rights, including the right to counsel, the right to a jury trial, and the right to remain silent.
Depending on the jurisdiction, the first appearance might be called an arraignment or advisement hearing. Other states hold separate arraignment hearings to handle such issues as appointing counsel and taking the defendant's plea.
When Is the First Appearance Scheduled?
Timing of the initial appearance is most crucial for defendants who are sitting in jail. These in-custody defendants must typically be brought before a judge within 48 to 72 hours of being arrested. Getting in-custody defendants in front of a judge quickly is meant to prevent suspects from sitting in jail indefinitely without being informed of the charges and their constitutional rights.
Out-of-custody defendants—those who bail out shortly after arrest or haven't been arrested—might wait a few days or weeks for their initial appearance. Timing here is still important but not as critical as for those who are still behind bars.
What Happens at the First Appearance or Arraignment?
As important as the initial appearance is, it usually flies by fast and a lot can happen. Here's a brief rundown.
Charges and rights. The judge will inform defendants of the criminal charges brought against them and certain constitutional rights, such as the right to counsel.
Right to counsel. If the defendant doesn’t have an attorney, the judge will explain the right to counsel and ask whether the defendant plans to hire counsel or needs court-appointed counsel (often a public defender).
Bail and custody status. Defendants or their lawyers might request bail or make a pitch for a lower bail amount or release on the defendant’s own recognizance (O.R.). Release O.R. means you get out of jail on your promise to appear at future hearings—without paying bail.
Depending on the jurisdiction, a few more matters might be handled at the initial appearance. In other states, these additional matters might be handled at a second hearing—the arraignment.
Probable cause. If the police arrested the defendant without a warrant, the initial appearance or arraignment may be combined with what’s called a “probable cause” hearing. Here, the court determines whether sufficient evidence exists to hold the defendant. If the judge decides that not enough evidence exists to reasonably suspect that a crime was committed and the defendant committed it, the judge will dismiss the case.
Plea. The court might take the defendant’s plea—guilty or not guilty—at this point. Unless a defendant has a lawyer who’s already worked out a plea deal with the prosecutor, the defendant typically pleads not guilty and can change the plea later. In some states, the judge won’t ask for the defendant to enter a plea until counsel is appointed.
Scheduling. Finally, the judge will likely set dates for future appearances. such as hearings on pretrial motions.
When Can I Talk to My Court-Appointed Lawyer?
Every jurisdiction handles court-appointed attorneys differently at this first appearance. If the defendant doesn’t have an attorney, the court will ask whether the defendant plans to hire an attorney. For those that do, the judge may grant them a continuance for a brief period of time to find and secure an attorney. More often, the defendant will ask for a court-appointed lawyer.
Some jurisdictions automatically provide a public defender to in-custody defendants at their first appearance. Other courts may have a public defender available to consult with defendants who plan to request court-appointed counsel. And in other courtrooms, the judge may order a continuance so the defendant can fill out a public defender application and have time to speak with counsel.
Importance of Having an Attorney
All of the above can happen in a matter of minutes. If possible, it’s best to have a lawyer by your side. A criminal defense lawyer can guide you through the process, make arguments to get you out of jail or reduce bail, and protect your constitutional rights.
If you’re representing yourself at this point, seek clarification from the judge when you don’t understand something. You can also ask the judge for a continuance and additional time to find a lawyer or, if you can’t afford an attorney, ask for court-appointed counsel.