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What to Expect on Your First Day in Federal Court: A Short Explanation of the “initial Appearance” and the “arraignment”

Kish Law LLC

It was a bad day recently here in Atlanta when I learned that some clients had been indicted for some federal crimes, even though we have been trying for years to convince the prosecutors that no charges should be brought.  Sometimes, criminal defense lawyers fail to adequately explain their clients about  the process that happens on the first day in court.  Many people have never been through the criminal justice system, so they are completely unfamiliar with the process.  I always try my best to make sure that my clients are aware of the various things that will happen on the first day, and this post is a summary of what my conversation is like for such clients.  The process is basically the same in the federal courts here in Georgia and throughout the country (with a few unique local features from time to time).

Most times, there is an “indictment”, which is the formal document that sets out the charges.  In the majority of cases, this leads to an arrest warrant.  I always try to convince prosecutors to let me surrender my clients to the agents who have the job of carrying out the arrest warrant.  This way, we avoid having the agents go to the house for a surprise arrest, which is both unnerving to the client (and their family) as well as being dangerous for everyone nearby (how would you feel if you saw armed people sneaking around your neighbor’s house in the early morning hours?)

After the arrest, the agents take the clients to the United States Marshal’s office, for booking.  This generally consists of a photograph and fingerprints.

Next, a United States Pretrial Services Officer generally will interview the clients.  Most times this results in a report in which that Officer makes a recommendation about release on bail, and the conditions of any bond that must be posted for the client’s release.  Under the Bail Reform Act of 1984, the Court can let the person out of custody after posting bail, with various conditions attached to that release order.  In very serious cases, the prosecutor has the authority to request “detention”, which means no bail at all.  When a prosecutor makes such a request, there has to be a special proceeding called a “detention hearing.”  At such a hearing, the prosecutor tries to convince the federal Magistrate Judge  that the accused person is either a “danger to the community” or a “risk of flight.”  The defense attorney often has very little time to prepare for the detention hearing, and many times will ask for a several-day continuance so as to be prepared to fully explain why his or her client is neither a danger nor a risk of fleeing.

In most non-violent criminal cases, the Defendant is released on bail.  Sometimes, the Magistrate Judge requires that the person get a bail bondsman to post the bail.  Other times, the person can secure the bond with a cash deposit with the Court, or by pledging real estate.  Also, the Judge can set the bail, but then make it “unsecured”, meaning that the Defendant signs his or her name only.  No matter what type of bond is set, the accused person is obligated to appear in court when ordered to do so, and not move or leave without permission.  Failing to comply with bail conditions can be grounds for revoking bail, or even can lead to new criminal charges.

Another aspect of the Initial Appearance is the “arraignment.”  This is when the Defendant formally answers to the charges in the indictment.  For the most part, a Defendant can only enter a “not guilty” plea in front of the Magistrate Judge.  In most Districts, anyone who wants to plead guilty has to schedule another hearing on a different day in front of a District Judge.

After the bail is set, the person is generally taken back to the US Marshal’s office, where they do one final check to see if there are any other pending cases involving the Defendant.  If not, then the accused individual is released, and then needs to go to the US Pretrial Services office.  Those folks will set up a schedule for someone to make a home visit.  Also, in many situations the Magistrate requires that the Defendant surrender his or her passport as a condition of bail.  The passport is generally given to the Pretrial Services officer.

The first day in court is stressful, especially for people who have never previously been accused of a crime.  If you feel uncertain about the process, make sure that your attorney answers your questions.

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