Chapter Four

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Chapter Four Initial Appearance
Its better to enter the mouth of a tiger than a
court of law.
Old Chinese Proverb
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KEY WORDS

• Key terms to understand for this chapter

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

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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.

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Purpose of the Initial Appearance

• 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

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Purpose of the Initial Appearance

• Initial appearance, also called arraignment,
  consistsof the accuseds 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
  muchof his/her time conducting initial
  appearance hearings

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Purpose of the Initial Appearance

• 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
  thearrest 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.

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Purpose of the Initial AppearanceTiming

• 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
  appearbefore a magistrate without unnecessary
  delay

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Purpose of the Initial AppearanceMcNabb v. US.

• 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

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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 McNabbs 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

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Purpose of the Initial AppearancePenalties of
Delay

• Generally, delay in an initial appearance/arraignm
  ent 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.

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Purpose of the Initial AppearanceAccepting the
Accused

• 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
  willin 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.

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Complaint

• 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.

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ComplaintDemurrer to 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 states 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

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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
  thedefendant 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.

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BailInherent Right

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

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BailRight to Bail - Stack v. Boyle

• 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.

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BailRight to Bail

• 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.

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BailHistorical Development of 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.

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BailPurpose 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 entitledto 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

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BailDenial of Bail for Protective Reasons

• 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 bythe 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 saythat all arrests must be bailable.

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BailDenial of Bail - US v. Salerno

• In recognition of the Courts 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
  arresteewho 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

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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.

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BailForm of Bail

• 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.

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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

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BailForm of Bail

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

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BailForm of Bail

• 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
  adefendant 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.

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BailAmount 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

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BailAmount of Bail

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

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BailSource of Bail

• 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.

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BailExcessive Bail/Schedules

• 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.

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BailForfeiture of Bail

• 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.

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BailSurrender of Surety/Exoneration 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
  responsibilityand 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.

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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.

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BailRelease on Recognizance

• 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

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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
  anotherstate, 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 canbe 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.

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BailBail for a Material Witness

• 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

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BailBounty Hunters

• Bounty hunter Michael Kole has nabbed more than
  100 fugitives from justice.
• but arrested on burglary charges after entering
  thehome of a third party without permission.
• Ohio law provided that a bounty hunter could
  arresta defendant at any time and any place, and
  approvedMr. Koles right to enter the home to
  arrest a defendant.
• other courts have ruled against the rights of
  bountyhunters and in favor of third-party rights
• Bail bondspersons hire bounty hunters to track
  down defendants who skip out on court
  appearances.

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BailBounty Hunters - Taylor v. Taintor

• According 1872s 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
  includedthe 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
  policeadvance warning before making an arrest
• Most are part-timers with law enforcement
  experience.
• ex-convicts are excluded from being bounty hunters

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SUMMARY

• Important topics for this chapter

• 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.

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SUMMARY
(cont.)

• 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.

41
SUMMARY
(cont.)

• Important topics for this chapter

• 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.