BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 1 - Criminal Pre-Trial

        1.01 Initial Appearance (FRCRP 5)

        1.01.1 Initial Appearance: General Principles
        1.01.2 Initial Appearance: Other Sources

If the alleged offense was committed in another district, see infra section 1.05: Commitment to another district (removal proceedings)

The first appearance of the defendant after arrest is usually before a magistrate judge. If the defendant consents, the initial appearance may be conducted by video teleconferencing (FRCRP 5(f)).

[Note: If you have any doubts about the defendant’s ability to speak and understand English, consider appointing a certified interpreter in accordance with 28 USC 1827. If the defendant is a foreign national, regardless of immigration status, advise the defendant of the right to consular notification and access. FOOTNOTE 1]

B. For a felony charge, inform the defendant

1. of the nature of the complaint against him or her and of any affidavit filed therewith;

2. of the defendant’s right to employ counsel or to request the assignment of counsel if he or she is unable to employ counsel (see infra section 1.02: Assignment of counsel or pro se representation);

3. of the defendant’s right to have a preliminary hearing (FRCRP 5(d)(1)(D) and 5.1; 18 USC 3060);

4. under what circumstances the defendant may secure pretrial release;

5. that the defendant is not required to make any statement;

6. that if the defendant has made a statement, he or she need say no more;

7. that if the defendant starts to make a statement, he or she may stop at any time (Miranda v. Arizona, 384 U.S. 436 (1966)); and

8. that any statement made by the defendant may be used against him or her.

FRCRP 5(d)(1).

D. Determine whether the defendant has had a reasonable opportunity to consult with counsel. Allow further consultation if needed. FRCRP 5(d)(2).

G. For release or detention of a material witness, see 18 USC 3144.

H. If the person is before the court for violating probation or supervised release, see FRCP 32.1. Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973); FRCRP 5(a)(2)(B).

I. If the offense was committed in another district, see FRCRP 5(c)(3) and infra section 1.04: Offense committed in another district. If the defendant was arrested for failing to appear in another district, see FRCP 40 and infra section 1.05: Commitment to another district (removal proceedings).

FOOTNOTES:

1.    For more detailed guidance relating to the arrest and detention of foreign nationals, see Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them on the U.S. Department of State website, http://travel.state.gov/consul_notify.html. See particularly the  sections “Steps to Follow When a Foreign National Is Arrested or Detained” and “Suggested Statements to Arrested or Detained Foreign Nationals.”