Initial Appearance
Purpose
After a criminal case begins, the defendant's first court appearance is known as the initial appearance. This occurs in the county where the alleged crime happened. During the initial appearance, the judge informs the defendant about the charges, possible penalties, and procedural rights available at this stage of the judicial process. Defendants may appear before the judge through different means, including citation, summons, or after an arrest followed by a complaint.
Legal Requirements
The law mandates that anyone arrested must be promptly brought before a judge in the county of the alleged offense. This right to a timely initial appearance is rooted in both the Wisconsin Constitution and the Fourteenth Amendment of the U.S. Constitution. However, what counts as a "reasonable time" for this appearance is not explicitly defined.
If arrested without a warrant, suspects have a constitutional right to a quick judicial review to confirm if the arrest was based on probable cause. Unless exceptional circumstances exist, this review should happen within 48 hours of arrest. This is referred to as a "Riverside probable-cause hearing," named after a Supreme Court ruling.
Consequences of Delays
Nonadherence to the Riverside timeline typically doesn't lead to complaint dismissal or reverse a conviction. Exceptions exist if delays were intentional and harmed the defendant's defense. If the initial appearance also serves as the Riverside determination, it must occur within 48 hours of arrest barring exceptional situations.
Investigative Delays
Delays might be justified for reasons like deciding on charge formalization, investigating claims by the suspect or witnesses, or gathering further evidence. However, deceitful tactics for confessions, unnecessary evidence collection, ill will, or deliberate delay are deemed unacceptable.
District Attorney's Role and Due Process
The district attorney must promptly file a complaint after an arrest without a warrant. Significant delays between arrest and initial appearance may violate due process rights and affect the admissibility of confessions.
Probationers
For probationers taken into custody for suspected probation violations, the law does not require immediate criminal charges for new crimes possibly committed during the same incident.
Duties of the Judge or Court Commissioner
Wis. Stat. § 970.02 outlines the responsibilities of a judge or court commissioner.
At an initial appearance, the presiding official is required to:
Inform the Defendant of the Charges: Provide a clear explanation of the charges against the defendant and supply a copy of the complaint.
Advise on the Right to Counsel: Make the defendant aware that they have the right to an attorney and, if they cannot afford one, an attorney will be appointed.
Set Conditions of Release: Discuss bail and other conditions of release, providing a thorough understanding to the defendant.
Set Trial Date for Misdemeanors: If charged with a misdemeanor and a trial date is requested, it should be set accordingly.
Preliminary Examination for Felonies: Inform the defendant of their right to this examination if facing a felony, and set a date (within 10 days of initial appearance if in custody, within 20 days if not in custody) if necessary. If waived, proceed to bind the defendant over for trial.
Inform of Penalties for Felonies: Clearly explain the potential penalties that could apply if convicted of the felony charge.
Refer Indigent Defendants to the State Public Defender: If the defendant appears or claims to be indigent, facilitate a referral for a determination of eligibility for state defense services.
Directive for Identifying Data Collection: Ensure that fingerprints, photographs, or other identifying data are collected if not already done so.
Order DNA Specimen Collection for Felonies: If applicable and not previously done, instruct that a DNA specimen be obtained from the defendant.
Advise on DNA Database Expungement: Inform the defendant on the procedure to seek expungement from the DNA database if the felony case does not result in a felony conviction.
Additional Practices
Arraignment in Misdemeanor Cases: Although not explicitly mentioned in Wis. Stat. § 970.02, it is the practice in Wisconsin to conduct the defendant’s arraignment concurrently with the initial appearance for misdemeanor cases. If no plea is entered, a not guilty plea is generally entered on behalf of the defendant.
Complaint Review for Probable Cause: It is common practice for the judge to review the complaint at the initial appearance to ensure that probable cause is stated, safeguarding the defendant's rights.
Release Prior to Trial
Rights Regarding Pre-Trial Release
Overview
The right to reasonable bail is built on the presumption of innocence. It comes into consideration under specific circumstances:
Assessment of Necessity: Release conditions are evaluated based on the complete situation, factoring in:
Previous convictions for violent crimes.
Risk of not appearing in court.
Protection of the community from serious harm.
Prevention of witness intimidation.
Consideration of potential defenses by the accused.
Legislative Authority: The legislature has the power to enable courts to revoke an individual's release if they violate release conditions.
Eligibility and Conditions
General Eligibility: All individuals, prior to conviction, qualify for release under conditions aimed to:
Ensure court appearance.
Protect community members from significant harm.
Prevent witness intimidation.
Monetary Conditions: Imposed only if there's a reasonable basis to believe they are necessary for ensuring court appearances, or in cases involving violent crimes.
Legal Basis
This summary is grounded in Article I, § 8(2) of the Wisconsin Constitution, outlining defendants' rights concerning pre-trial release.
Determining Bail and Conditions of Release
When deciding on bail and conditions for releasing a defendant pending trial, courts in Wisconsin are guided by several factors as outlined in Wis. St. § 969.01(4). These considerations are pivotal in ensuring that the decision is just and considers both the community's safety and the defendant's rights. The factors include:
Defendant's Ability to Post Bail: Evaluating the financial capacity of the defendant to post bail without unfairly detaining those unable to afford it.
Nature, Number, and Severity of Offenses: Considering how serious the offenses are, including their nature, the number of charges, and the potential penalties involved.
Violence of the Charges: Assessing if the charges carry elements of violence, which could influence the decision towards stricter conditions or denial of bail.
Defendant's Criminal History: Reviewing any prior criminal records to gauge the likelihood of re-offense or flight risk.
Character and Personal Background: Looking at the defendant's character, health, place of residence, and reputation within the community.
Strength of the Prosecution's Case: Evaluating the evidence presented against the defendant and the overall strength of the prosecution's case.
Corrections Supervision: Considering whether the defendant is already under supervision by the Department of Corrections, which may influence the decision on bail and release conditions.
Existing Bail Conditions or Releases: Checking if the defendant is already out on bail or under other release conditions in pending cases which might affect the current decisions.
Prior Preliminary Hearing Outcomes: Whether the defendant has been bound over for trial following a preliminary hearing can be indicative of the case's seriousness and may influence bail considerations.
Past Bail and Release Behavior: Assessing if the defendant has previously forfeited bail, violated release conditions, or was a fugitive at the time of arrest reflects on their reliability and risk level.
Policy Against Unnecessary Detention: Adhering to a policy that aims to prevent unnecessary detention of defendants pending trial, ensuring that the bail system is used fairly and judiciously.
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