Initial Appearance and Detention
Three Initial Appearances:(1) Initial Appearance; (2) Probable cause / Gerstein; (3) Preliminary Examination.
Initial Appearance: Rule 5(a); Functions: told of charges, warned of right to refrain from self-incrim., appt. of att. If D asserts indigency, pre-trial release or detention, right to prelim. Hearing. Rule 5(a): arrest w/out warrant or arrest under warrant shall take arrested person without unnecessary delay before the nearest available fed. mag. & w/out warrant requires pc to be promptly filed. Failure to abide by “unnecessary delay” and confessions: McNabb Mallory Rule / 18 USCA 3501(c): failure to follow unnecessary delay is not an automatic exclusion to a confession, court looks at 5 factors if the confession was voluntary: (1) time between arrest and arraignment; (2) whether D understood the charge; (3) if D knew or was advised of right to remain silent and anything said could be used against him; (4) If D was advised of right to attorney; (5) If D had assistance of counsel during confession. Right to PC Determination: Gerstein:held 4th Amend. requires a prompt pc hearing as a prereq. to detention and does not require an adversarial hearing. In formal, ex parte. PC to arrest. Reasoning: when stakes are high such as detention, the detached judgment of a neutral mag. Is essential if the 4th Amend. is to furnish meaningful protection from unfounded interferences with liberty. Adversary not required b/c pc is not a critical stage in prosecut
rally, comply with the promptness requirement of Gerstein. (Rebuttable presumption). A determination may not be prompt, however, even if within the 48 hour guideline if it was delayed unreasonable, such as a delay to gather additional evidence to justify the arrest or motivated by ill will or just for delay’s sake. Powell: SC held statements did not have to be excluded when pc hearing was after 48 hours b/c Judge did not rely on those statements in making determination. SC said that had the pc hearing been within 48 hours, the same info. Would have been presented and same result and thus not prejudicial. Reasonable Suspicion: leval of belief where officer has enough knowledge to lead reasonable person to believe criminal activity is occurring. (Probable cause, preponderance of the evicence. clear and convincing, proof beyond a reasonable doubt). (1) Gerstein, (2) Initial Appearance, (3) Preliminary hearing to prosecute. PC to Arrest: reasonably trustworthy info sufficient to warrant a prudent man to believe that D had committed or was committing a crime. PC to prosecute: P must prove enough evidence so average person could conclude D is guilty of crime charged. See page 2 of outline for Preliminary hearing to prosecute. Preliminary – can be waived, only felonies, don’t get if have grand jury.
