13 Initial Appearance of Defendant

13. INITIAL APPEARANCE OF DEFENDANT

13.1 CONDUCT OF HEARING

13.11 Initial Appearance [URMC § 25.1]:

CHECKLIST

NOTE - Hold no later than 48 hours after arrest if initial arrest was without warrant, or 72 hours if initial arrest was with a warrant, unless accused is released previously on unconditional bond [OCGA 17-4-26, -62].

A. At the first appearance of the defendant the judge should determine:

1. The defendant's true name;

2. The defendant's age;

NOTE - Juvenile defendants - Unlike arrest warrants (see 11.36C), there is no authority in the juvenile code which has been construed to recognize the authority of courts of inquiry to hold initial appearance or commitment hearings in juvenile cases. Thus, it is questionable whether magistrates have any jurisdiction to such hearings for juveniles, including those which will be tried in superior court as adults. It is recommended that magistrates not conduct such hearings unless designated to act as superior court judges (see 42 U.S.C. 1988(b) for liability for judicial actions clearly in excess of the courts' jurisdiction).

3. The offense charged;

4. The defendant's education;

5. The defendant's ability to speak, understand, read and write English;

6. If the defendant is represented by counsel;

7. If the charge has been read to the defendant;

8. If the defendant wants the charge read aloud; AND

9. If the defendant understands the nature of the charge.

B. The judge should then inform the defendant of the:

1. Right to representation by counsel;

2. Right to a reasonable time to obtain the services of counsel before a preliminary hearing is held;

3. Fact that counsel will be provided if defendant is determined to be financially unable to retain one;

4. Right to counsel during all questioning;

(See Appendix C5 - RIGHT TO COUNSEL)

5. Right to remain silent;

6. Fact that any statement made by defendant can be used as evidence at hearings or trial;

7. Right to indictment by Grand Jury for most felonies, or to accusation if misdemeanor; if charge is OCGA Chapter 16-8, art. 1 (thefts), Chapter 16-9 (forgery and fraudulent practices), Chapter 16-10, art. 3 (escape and other offenses related to confinement), 16-11-131, 16-13-30, or 40-5-58, inform defendant that if the commitment hearing is waived, expressly or by posting an unconditional bond (see 14.3), prosecution may proceed by accusation [OCGA 17-7-70.1]; also state when next Grand Jury meets;

8. Right to a speedy trial and to trial by jury;

9. Right to confront witnesses;

10. Right to call witnesses on own behalf and at no cost;

11. Presumption of innocence;

12. Penalty provided for the crime charged (i.e., whether crime is misdemeanor or felony);

13. Inform accused that commitment hearing may be waived.

C. After having informed the defendant of his/her rights, the judge should ascertain if defendant:

1. Has any questions;

2. Understands right to an attorney;

3. Wishes and is able to provide own counsel;

4. Wants the court to appoint counsel;

5. Wants to proceed without counsel.

See Appendix C5 - RIGHT TO COUNSEL

D. Schedule preliminary (commitment) hearing (if not waived). [OCGA 17-4-26; Godfrey, 204 Ga.App. 58, 418 SE2d 383 (1992)]. Allow reasonable time to prepare and for defense to obtain counsel if desired [OCGA 17-7-24].

NOTE - The magistrate has no authority to take a guilty plea. [1983 GA. CONST., Art. 6, Sec. 3, Par. 1; OCGA 15-10-2; Simmons, 260 Ga. 92, 390 SE2d 43 (1990)]. The former provision in the Uniform Rules for inquiry about guilty pleas has been eliminated.

E. Set bail, if bailable before magistrate (See Bail Section below, Chapter 14).

F. State may be represented at hearing by law enforcement officer [see URMC § 25.1]:

1. State agent's authority to petition the court on behalf of the State with regard to a matter within the scope of his or her employment is not unlawful practice of law [Wolcott, 278 Ga. 664, 607 SE2d 147 (2004)];

2. No constitutional separation of powers issue because officer is employee of executive branch [see Wolcott, id.].

13.12 Initial Appearance - DIALOGUE:

This is the first appearance calendar for the Magistrate Court of ___________ County,

Georgia, held this ___________ day of ___________, 20___________.

I will begin by reading the warrants containing the charges involved in these cases so that each individual will know what crime he or she is supposed to have committed. Then I will give you information about what appearance and committal hearings are and how they fit into the overall criminal justice procedure. I will then ask you some questions about whether you want lawyers and about when and...