Federal Initial Criminal Appearance – What to Expect

Hey, everybody. Happy Friday. I’m leaving the federal courthouse here in Plano. And it dawned on me that a good Friday video would be for some of these folks that have never had a federal criminal case before, never represented anybody federally, on what to expect on an initial appearance, because that’s what I just came from. So I’m goin to jump in the car, drive back to the office and then I’m going to give you guys the heads up on what you can expect on your first federal initial appearance.

All right. So, either you or someone you know or a client or a friend or a relative has been indicted on a federal case, and they have been set for an initial appearance. Right? So something we never hope happens, but it does happen from time to time. Unless you’re in my world, in which it happens pretty much every day.

So, what to expect at an initial appearance on a federal case. The judge, and it’s typically going to be in front of a magistrate judge. There are two in the Eastern district over here. There were a bunch down in the Northern district in Dallas and in Fort Worth. But it’s generally going to be in front of a magistrate judge. That magistrate judge is going to be concerned with really two issues. Okay. The first issue that that magistrate judge is concerned about is getting the defendant or your client to enter their plea of not guilty to the charges. So before that can happen, there are several things that that magistrate judge needs to do and your client needs to be prepared for it.

The first is going to be, the judge needs to ensure that the defendant is aware of and fully understands the charges against him or her. So that means that your responsibility as the lawyer or my responsibility as the lawyer, is to take a copy of the information or the indictment and go over that in detail with my client prior to this initial appearance. Read it to them, make sure they understand it. I typically say, “look, I’m not saying we have to agree that this is what happened. This is just what the government is saying. And I need to make sure you understand what their allegations are. Again, we may not agree with what their allegations are, but we understand what they’re saying, right? Yes or no?” And so, that’s step one, is the judge needs to make sure that the defendant is aware and understands the charges that are being brought against them.

Okay. So once that happens, the judge will tell the defendant that they have a right to have that information or that indictment read aloud in open court, or they can waive that and simply enter their plea of not guilty. I typically advise to waive the reading of the indictment, not necessarily because there’s any specific purpose. The only reason is those indictments are typically 10, 15, 20, sometimes even 40, 50, 60 pages long. And I don’t feel like anybody wants to be standing there for three hours while somebody reads a novel into a microphone that we’ve already read and gone over in detail. So they’ll waive the reading of the indictment.

The other thing the judge is going to make sure is that that individual is competent to enter a plea. So she’ll ask them things like, are you currently under the influence of any drugs or alcohol? Have you been diagnosed with any mental illnesses or disabilities? Are you currently under any psychotropic medications that affect your ability to understand and comprehend what’s going on around you? So she needs to establish a baseline that that person is competent. Once she is or he… Once the judge is convinced that that person is competent to enter a plea of guilty, the plea of not guilty will be entered into the record.

The second thing that the magistrate judge is concerned about at the initial appearance is the issue of detention. And what I mean by detention. Most people think of bond or bail, but in federal courts, it’s called the issue of detention. And the judge needs to ask the government first, “Government, are you moving to detain this defendant?” Because the government has the right to file a motion requesting that a judge keep an individual in jail pending trial, or if the government is not moving for detention, then the judge will release that individual on what are called conditions. Okay? And the conditions are simply a set of rules that that person has to follow while they’re out on release, waiting for this case to go to trial.

Now, if the government moves for detention, then your client will have two other options. They have a right to have a hearing on that issue. Now I’m not going to go into what a detention hearing is in this video. I’ll do that at a later video because that’s a whole different ball game. But they have a right to request a detention hearing, or they have a right to waive that detention hearing and simply say, I agree, and I’m going to be incarcerated pending outcome of this case.

And there’s a lot of strategic reasons why somebody might waive a detention hearing. So it’s important that you discuss these with a criminal defense lawyer prior to making that decision. Because like I said, it sounds like, why wouldn’t you request a hearing on every case? And I get that train of thought, but there are some strategic reasons why waving a detention hearing is the appropriate step in some cases. So once those two questions are answered, that will really be it. When you’ve got a defense lawyer, an AUSA, and had a magistrate judge that really knows what they’re doing, an initial appearance typically only lasts about five to 10 minutes. I mean, it’s something that you really just rip through.

But it’s when you get a defense lawyer in there that doesn’t necessarily know what the process is, doesn’t know what the judge is looking for and more importantly, if that defense lawyer hasn’t done the pre-work of explaining that indictment to their client ahead of time, and so then the client is up there kind of fumbling through these answers. And isn’t really sure what the judge is asking him. That’s when you can get into an issue where these things can kind of drag out and take a long time. And it’s just not efficient or convenient for anybody.

So hopefully that helps. That gets you a little bit of a snapshot. If you ever have to cover an initial appearance for anybody else, you kind of know what you’re walking into. There are some other kind of tips and tricks of the trade of what I tend to do on an initial appearance. Kind of how I approach it, how I approach the AUSA, that sort of thing.

I’m happy to kind of get into that in another video. If that’s something that you guys are interested in. Or shoot me an email, give me a call. I’m happy to let you know, kind of my process when I attend one of those, like what I did this morning. So hope you all had a great week. I hope you found some of this entertaining or interesting, or at the very least, I appreciate you just sticking around because you’re awesome and didn’t have anything else better to do on a Friday. Looking forward to seeing you next week, stay safe, stay warm, and let me know if you have any questions. Bye guys.