Nuts & Bolts #2: Initial Appearances

An initial appearance is the very first time a person charged with a crime appears before a judge. It is a formal proceeding attended by the judge, the prosecutor, and the criminal defendant. The defendant can have an attorney present if he or she hires an attorney in advance of the court date. But that’s not always possible because the person may have been incarcerated in advance of their initial appearance or lacked the funds to afford counsel.

There are two basic goals of an initial appearance on a misdemeanor (max. penalty is less than 1 year in jail) charge: (1) to set bail and bond conditions; and (2) to take the criminal defendant’s plea. The order of operations is as follows:

1. The criminal defendant arrives at the courtroom or appears via video link.
2. The prosecutor arrives and sits at a table before the judge.
3. The judge appears. The bailiff orders everyone to rise. The judge tells everyone to sit.
4. The judge identifies himself, starts the formal record of the proceeding by identifying the date and nature of the proceeding.
5. The judge reads a list of the constitutional rights available for criminal defendants to all of the criminal defendants present. The reading of these rights is slow and boring. But each defendant should pay close attention.
6. The judge starts calling cases by defendant’s name.
7. The defendant’s case gets called.
8. The judge will explain the charge or charges against the defendant and ask for a plea: guilty, no contest, or not guilty.
9. If the defendant pleads not guilty, the judge will collect biographical information on the defendant: home address, phone number, age, date of birth, place of employment, employment status, etc.
10. The judge will then address bail and bond conditions.
    1. The State, through a prosecuting attorney, will make a recommendation. Some bonds, such as “personal recognizance” or “own recognizance” bonds, do not require a defendant to deposit money with the Court. Others, “cash” bonds or “surety” bonds, will require some money to be deposited to ensure the defendant’s appearance at future hearings and proceedings.
    2. The bond conditions are almost always uniform. For example, in battery or assault cases, the defendant will be ordered to have no contact with the alleged victim. In DUI cases, the defendant will be ordered to abstain from alcohol consumption and to complete a substance use assessment and any recommended counseling. Every defendant will be required to refrain from further violations of any law.
    3. The most important aspects of this process for a defendant to focus on are: (1) amount and type of bail/bond; and (2) travel restrictions. A defendant needs to be able to afford their bail to stay out of jail and, depending upon their work and personal obligations, they will need the ability to leave the county/state.
11. For misdemeanors, that is all that occurs. At no point should a criminal defendant attempt to argue their case at an initial appearance.

For felonies, the initial appearance is different. In Wyoming, initial appearances for felonies take place in circuit courts. Circuit courts lack jurisdiction over felonies. So, the only issue for the circuit court to resolve is bail and bond conditions. The circuit court will not take your plea or ask you how you plead.

Instead, the circuit court will set the case for a preliminary hearing or preliminary examination–referred to as a “prelim” by attorneys and judges. That hearing is designed simply to see if the State has sufficient evidence to show that the felony charge is supported by probable cause. If the State successfully makes this showing, the felony will be bound over to the district court for arraignment, or the hearing where a defendant gives his or her plea (not guilty, no contest, or guilty).

A final note about pleas. To best preserve a criminal defendant’s rights, she should always plead “not guilty” and ask for a jury trial (if available for the charge) at her initial appearance. This plea allows the person to explore legal representation and see if there is a way to obtain a better outcome than whatever the prosecutor and the judge come up with on the spot. Plus, many criminal charges have collateral consequences that a person cannot anticipate just by pleading guilty on the spot. The best option is to buy time to consider the implications of the charge on all facets of the person’s life before pleading guilty.

While most people have a working understanding of guilty and not guilty pleas, “no contest” is a little different and can be confusing. A person who pleads no contest is not admitting to any facts or conceding his or her role in the alleged crime. Rather, a no contest pleader is telling the court she is not contesting the charge or charges against her and she is waiving her right to a trial. The person will be convicted, but without conceding his or her role in the matter.

The benefit of this plea is realized in related civil cases. By not conceding anything in the criminal case, a criminal defendant has not undermined her position in a later-filed civil matter related to the act or acts that formed the basis of the criminal charge. Think of a lawsuit filed for personal injury after a drunk driver hit another car.

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That about sums up “initial appearances.” The key takeaway is that each criminal defendant is best served by pleading not guilty and asking for a jury trial. The time purchased by this plea will give the defendant the chance to really think about what the criminal charge may do to his or her life.