Chapter Four Initial Appearance Chapter Four Initial Appearance It’s better to enter the mouth of...

Chapter FourInitial Appearance

Chapter FourInitial Appearance

It’s better to enter the mouth of a tiger than a court of law.It’s better to enter the mouth of a tiger than a court of law.— — Old Chinese ProverbOld Chinese Proverb

Procedures in the Justice System, Ninth EditionBy Cliff Roberson, Harvey Wallace, and Gilbert Stuckey

© 2010 Pearson Higher Education, Inc.Pearson Prentice Hall - Upper Saddle River, NJ 07458

• Arraignment• Bail• Bounty Hunters• Complaint• Demur• Exoneration of Bail• Initial Appearance• Material Witness

Key terms to understand for this chapter…

KEY WORDS



OBJECTIVES

After completing this chapter, you should be able to…

• Describe the purpose of an initial appearance.• Understand the legal requirements of a complaint.• Discuss the restrictions on bail.• Explain the various pretrial release mechanisms.• Discuss the problems with bounty hunters.• Explain what happens when the defendant violates the

conditions of his or her bail.



• Although not mentioned in our Bill of Rights, it is a basic right of an arrested person to be taken before a magistrate without unnecessary delay. – included in federal rules of procedure and laws of states

Purpose of the Initial Appearance

Attorney Gary Cirilli, right,confers with his client, Rhinelander High School band director Joshua Jameson, Tuesday, May 27, 2003, duringJameson’s initial appearance in OneidaCircuit Court in Rhinelander, Wis.

Jameson, 28, was charged with one count ofsecond degree sexual assault of a child andtwo counts of sexual assault of a child by aschool instructional staff person.



• Initial appearance, also called arraignment, consistsof the accused’s appearing before a magistrate to be advised of certain rights to which he or she is entitled.

• A magistrate may be defined as anyone having authority to issue an arrest warrant or a search warrant– generally a judge of an inferior court who spends much

of his/her time conducting initial appearance hearings


Major Players and Issues in Criminal Trial.



• At the initial appearance, the accused will be officially informed of the charge against him or her. – the charge is often changed between the time of the

arrest and the initial appearance

• In some states, the accused is permitted to enter a plea.– which adds to tendency to call the appearance an arraignment

• If the offense is one for which bail may be posted, an amount is set and the be informed of the right to make bail if he/she is not already out on bail.

• If the accused is not represented by an attorney, rights to remain silent and of counsel will be explained.




• For many years, neither the courts nor law enforcement agencies were particularly concerned about the timing of the initial appearance.– it is now provided that an arrested person appear

before a magistrate without unnecessary delay

Purpose of the Initial AppearanceTiming

Milwaukee, July 25, 1991; Mass Murder Suspect Jeffrey Dahmer appears in Milwaukee County Circuit Court for his initial appearance to hear the charges being brought against him.

He was charged with four counts of first-degree intentional homicide. Police suspected him of as many as seventeen slayings.



• Time within which an initial appearance must occur and penalties attached for delay were given emphasis by the 1943 landmark decision in McNabb v. US.

• Facts of the case reveal some of the defendants were held for six days after the arrest before being arraigned.– during that time confessions were obtained from them and

introduced in their trial for the murder of a federal officer

• The conviction was appealed to the US Supreme Court on grounds the confessions had been involuntary. – the Court concluded there was an unnecessary delay in the

arraignment resulting in an involuntary confession

Purpose of the Initial AppearanceMcNabb v. US.



• To discourage delay in arraignments, the Court held any confession obtained during unnecessary delay would be inadmissible as evidence.

• A few states have adopted McNabb’s rule of excluding a confession obtained during a delay in arraignment.

• It becomes important to determine what, if anything, might be considered a necessary delay in arraignment.

• Prior to the McNabb decision, the test of admissibility was voluntariness in giving the confession. – the Court attached significant penalty to delay in arraignment

Purpose of the Initial AppearanceMcNabb v. US.



• Generally, delay in an initial appearance/arraignment is insufficient grounds for reversal of conviction on appeal.– unless shown the delay deprived the defendant of a fair trial

• Many states hold that a public officer who willfully delays bringing a defendant before a magistrate forthe arraignment is guilty of a misdemeanor.

• It has been held that once the time limit has beenreached wherein an arrested person must be takenbefore a magistrate, any detention beyond thatperiod is illegal.

Purpose of the Initial AppearancePenalties of Delay



• Laws of many states provide a private person who arrests another must take that person before a magistrate without unnecessary delay.– or deliver the arrested to a peace officer who will

in turn see that the accused is taken before a magistrate

• The usual procedure is that the private person will deliver the arrested person to a peace officer. – creating a problem of how far the officer should go in

determining legality of arrest before accepting the accused

• If the officer incorrectly concludes the arrest waslegal, he/she could possibly be held civilly liable.

Purpose of the Initial AppearanceAccepting the Accused…



• Prior to the initial appearance, a legal document must be filed with the court setting forth the charge against the accused, who will be referred to as the defendant hereinafter in relation to the judicial procedure. – in most instances, this legal document will be a complaint

• The complaint must contain enough facts to enable the judge to determine if a crime has been committed.– and reasonable cause to believe the defendant committed it

• If the defendant is not in custody, a warrant of arrest will be issued on the basis of this complaint.

Complaint



• In most states, a person named as accused in an accusatory pleading (indictment, information, or complaint) may demur to the pleadings. – formal mode of disputing sufficiency in law of the pleadings

• Grounds upon which a demur may be based include:– the grand jury issuing the indictment had no legal authority

– the accusatory pleadings do not conform to required provisions of the state’s penal code

– more than one offense is charged(in states that require a separate pleading for each charge)

– facts stated in the pleading do not constitute a public offense

ComplaintDemurrer to Complaint



• A demur must be in writing, signed by the defendantor by his/her counsel, and filed with the court. – distinctly specifying grounds of objection to the pleading

• When a demur is filed, the court will generally hold a hearing and make an order overruling or sustaining it.– if the demur is overruled, a court must allow the

defendant to plead– If sustained, a court must, if the defect can be corrected,

allow the indictment to be resubmitted to the grand jury

• If the demur is sustained and pleading not correctable, the court must dismiss the charge.

ComplaintDemurrer to Complaint



BailInherent Right

Houston, Texas, 24-hour bail bonds office.

A strip mall including Sonia’s Shoes and Fashions and a bail bonds service with signs with a beat-up pickup truck parked in front.

– Right of an arrested person to postbail to obtain release from custodyis an inherent right.



• As stated in Stack v. Boyle:– “This traditional right to freedom [by posting bail] before

conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction…

– Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuriesof struggle, would lose its meaning.”

BailRight to Bail - Stack v. Boyle



• Right to bail is not guaranteed in the Bill of Rights. • The Eighth Amendment to the Constitution merely

provides that “excessive bail shall not be required,”– implying that not all offenses are bailable

• By constitutional provision or by statute, the right to post bail by someone arrested under certain conditions is granted by all states.

• If the defendant has not been released on bail by the time of the initial appearance, the right to post bailwill be explained to him or her at that time.

BailRight to Bail



• The origin of the term bail has been obscured by time.• Some believe the term is from the old French word

baillier, meaning “to deliver”. • Others hold it originated from the common law

procedure of bailments.– the deposit of something of value with another for a

particular purpose —as for the release of one in custody

• By the time of the Norman Conquest in a.d. 1066, posting of a form of security to obtain release of an accused was a common practice.

BailHistorical Development of Bail



• Today, we continue to place arrested persons in jailto make sure they will be available for trial.– if we can obtain surety by permitting bail, they are entitled

to release from custody until found guilty of the accusation

• The only purpose of bail is to secure release from custody of one who has been arrested.– on promise to appear at proceedings related to the offense

• Statutes of many states include provisions that one charged with a capital offense may be denied bail.– if the proof of guilt is great

BailPurpose of Bail



• In the past, a few jurisdictions denied bail to anarrested person if release would endanger the public. – based on an interpretation of the Eighth Amendment by

the US Supreme Court in the Carlson v. Lando

• In Carlson, Court interpretation rested on common law:– “…The Eighth Amendment has not prevented Congress from

defining the classes of cases in which bail shall be allowedin this country.”

– “In criminal cases bail is not compulsory where thepunishment “may be death.”

– “Indeed, the very language of the Amendment fails to say[that] all arrests must be bailable.”

BailDenial of Bail for Protective Reasons



• In recognition of the Court’s interpretation, in response to problem of crimes committed by persons on bail, Congress enacted an the Bail Reform Act of 1984. – a federal officer may detain, pending trial, an arrestee

who may be a danger to another person or community

• Before the arrestee can be detained, a hearing must determine that no condition will assure safety of a person or community if the arrestee were released.

• Constitutionality of this act was questioned by the defendant in the case of US v. Salerno.– Salerno alleged the act violated his right to Due Process

BailDenial of Bail - US v. Salerno



• The US Supreme Court did not agree and stated the application is was limited to the most serious offenses.– and the arrestee is entitled to a prompt hearing, to counsel,

witness cross-examination & testimony in his/her own behalf

• The Court held this procedure fulfills Due Process.• The defendant also alleged the act violated his right

against excessive bail, from the Eighth Amendment. – the Court reiterated the government may deny bail &

detain individuals believed to be dangerous to society

• Many states have enacted similar statutes permitting the detention pending trial of dangerous individuals.

BailDenial of Bail - US v. Salerno



• To post bail is to deposit an acceptable object of value with the court to ensure appearance of the accused. – generally cash, US or state bonds, or equity in real property

• If real property is pledged, most states require the value of the property be twice that of the amount of bail. – because of fluctuations of real estate values and

difficulty of converting real property into cash

• Since most arrested persons do not have these forms of security, they rely upon someone to post bail for them.

• The person, (a surety), may be a friend or relative, but in many cases, a bail bondsperson, posting for a fee.

BailForm of Bail



• Should the accused fail to appear, the surety bond guarantees bail payment in cash to the court. – fee this service is about 10 percent of the bail amount

• If risk not appearing is too great & no one aids by depositing collateral funds, a bondsperson may refuse to post bail, and the accused will be detained. – deposit of bail entitles an accused to immediate release

• The law is silent in most jurisdictions on the amountof time a defendant may be free on bail.– it is generally assumed that he/she is entitled to be free

through all proceedings up to the time of conviction

BailForm of Bail



BailForm of Bail

Michael Jackson wears pajama pants and is aided by bodyguards as he arrived over an hour late with his father, Joe Jackson, right, for his child molestation trial at the Santa Barbara County Courthouse in Santa Maria, March 10, 2005.

Judge Rodney Melville threatened to revoke Michael Jackson’s bail and arrest him for being late for court.

Jackson claimed to have spent the morning in a local hospital with back pain.

– at his or her discretion,a judge may commit a defendant during the trial



• The defendant is not guaranteed the right to be free during an appeal time.

• Upon conviction, the defendant is no longer presumed to be innocent but rather to be guilty.– again, a judge, at his/her discretion, may permit a

defendant to post bail during the appeal proceedings

• In some states, bond is issued by a professional agency, for a limited time & requiring periodic renewal of bail.

BailForm of Bail



• Bail required is the amount that will ensure appearance.– anything above that amount could be considered excessive

• To determine bail, a judge may consider seriousness of the crime; criminal record; if the defendant was a fugitive or wanted elsewhere, and evidence of guilt.

• The court will also review financial burden he/she may suffer by not appearing & whether the defendant has more to gain than to lose by not appearing.

• Bail amount will not necessarily remain the same. – circumstances may justify an increase/decrease in amount

BailAmount of Bail



• Amount of bail will not necessarily remain the same throughout the proceedings. – circumstances may justify an increase/decrease in amount

BailAmount of Bail

Justice Thurgood Marshall (shown in his chambers) was appointed to the Supreme Court by President Lyndon Johnson and served from 1969 to 1991.

Prior to becoming a justice, he was a lawyer who was best remembered as counsel in the Brown v. Board of Education, which established separate public schools for black and white students denied black children equal educational opportunities.



• In some cases, especially drug offenses or fraud, the trial court will require the defendant to establish that the money to secure the bail is from a legitimate source, and not fruits of the crime.

BailSource of Bail

Former Tyco International CEO Dennis Kozlowski is surroundedby members of the media as he left Manhattan Supreme Courtin New York, September 27, 2002 following a bail hearing.

Kozlowski, who was charged with looting $600 million from Tyco International, which he headed from 1992 until June 2003, was allowed to remain free on $10 million bail put up by his ex-wife.



• Courts have held for bail to be excessive, it must be unreasonably great and clearly disproportionate tothe offense involved. – a defendant may apply to the court for a reduction and may

appeal the matter for review on a writ of habeas corpus

• Many states have procedures whereby judges agree upon bail amounts considered equitable on each misdemeanor violation. – listed in a schedule, & acting as guidelines for judges

• It has been recommended, and a few states have adopted, a similar schedule for felony charges.

BailExcessive Bail/Schedules



• If, without sufficient cause, an accused fails to appear when lawfully required to do so, bail will be forfeited.– security posted is confiscated & deposited in an official fund

– in felony cases particularly, the court will issue a bench warrant for immediate arrest of the accused

• On arrest, the defendant is tried on the original charge, and can also be charged with “failing to appear.” – or, as it is more commonly known, bail-jumping

• If a defendant does not appear a minor misdemeanor, or most traffic violations, a judge may forfeit the bail, consider it equivalent of the fine & dismiss the charge.

BailForfeiture of Bail



• The surety who posted bail may surrender him/her to the court any time before bail is forfeited. – on surrender, the surety is relieved of responsibility

and entitled to have the security returned to him or her

• For the purpose of surrendering the defendant, the surety may arrest the defendant, an extension to the power of arrest by a private person.

• If the defendant appears at all times required, bail has served its purpose & the surety entitled to its return.

• This return is known as the exoneration of bail.

BailSurrender of Surety/Exoneration of Bail



• If the defendant appears at all times required, bail has served its purpose & the surety entitled to its return.

• This return is known as theexoneration of bail.

BailSurrender of Surety/Exoneration of Bail

Justice Sandra Day O’Connor served as an Associate Justice of the Supreme Court of the United States from 1981 until her retirement from the bench in 2005.

The first woman to serve on the Supreme Court, she was a crucial swing vote on the Court for many years because of her case-by-case approach to jurisprudence and her relatively moderate political views.

She was known as a hard-working and strong-willed Supreme Court justice.



• Judges have developed a practice of releasing those charged with minor offenses without posting bail.– merely upon their promise to appear

• Known as releasing one on his/her own recognizance– the OR release

• Statutes of most states extend this to any bailable offense, including felony charges.

• Laws provide for release on recognizance if it appears the defendant will appear as directed.– but do not give the right to release on recognizance

BailRelease on Recognizance



• Prior to release, the defendant must agree in writingto appear at all times & places ordered by the court.– if he/she does not appear and is apprehended in another

state, the defendant waives extradition proceedings

• In most states, the defendant who fails to appear as agreed can be charged with the failure to appear. – if the original charge was a felony, the defendant can

be charged with a felony for failure to appear – if a misdemeanor, then misdemeanor failure to appear

• It has been suggested greater use be made of OR, for release of those unable to post bail for financial reasons.

BailRelease on Recognizance



• Laws of most states permit a judge to demand a material witness to a felony deposit security for appearance.– if the judge believes the witness will otherwise not appear– if unable to post bail, a witness may be held in custody

• Detention of a witness unable to post bail is unusual, as it permits incarceration of one not charged with a crime. – for this reason, it is not used extensively

• Many jurisdictions allow a material witness unable to deposit to incorporate his/her testimony in a deposition. – a written statement taken under oath before a magistrate, with

both prosecution and defense having right to be present

BailBail for a Material Witness



• Bounty hunter Michael Kole has nabbed more than 100 fugitives from justice.– but arrested on burglary charges after entering the

home of a third party without permission.

• Ohio law provided that a bounty hunter could arresta defendant at any time and any place, and approvedMr. Kole’s right to enter the home to arrest a defendant. – other courts have ruled against the rights of bounty

hunters and in favor of third-party rights

• Bail bondspersons hire bounty hunters to track down defendants who skip out on court appearances.

BailBounty Hunters



• According 1872’s Taylor v. Taintor, bounty hunters may pursue a fugitive into another state and, if necessary, break & enter his/her house for an arrest.– common law dating to medieval England included

the right of bounty hunters to arrest bail jumpers

• Most states require bounty hunters to receive approved training of arrest procedures and use of firearms.– in some states, the bounty hunter must give police

advance warning before making an arrest

• Most are part-timers with law enforcement experience.– ex-convicts are excluded from being bounty hunters

BailBounty Hunters - Taylor v. Taintor



• The initial appearance of a defendant is sometimes referred to as an arraignment.

• At the initial appearance, the defendant will be informed of the charges against him or her and advised of his or her rights.

• An accused should be taken before a magistrate without unnecessary delay.

SUMMARY

Important topics for this chapter…



• Prior to the initial appearance, a legal document must be filed with the court setting forth the charge or charges against the accused.

• A demurrer to a complaint is a formal mode of disputing the sufficiency in law of the pleadings.

• Originally, the purpose of bail was to ensure the presence of the accused at trial. Presently, bail can be denied for protective reasons.

(cont.)


SUMMARY



• There are several types of bail. The most common is money bail.

• Excessive bail is a violation of the US Constitution.• Bail may be forfeited if the defendant does not appear

as promised.• If the defendant makes his or her required court

appearances, bail may be exonerated.

(cont.)SUMMARY


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