In Georgia, the defendant’s first appearance before a judge is called an “initial appearance.” “Arraignment” refers to the hearing at which the prosecution announces the charges it has filed; at that point, the defendant responds by pleading either guilty or not guilty.
(For more information on arraignment and initial court appearances, see Arraignment: Getting to Court.)
Unless an arrestee has already bailed out of jail, the arresting agency or county sheriff’s department must bring him or her before a judicial officer (a magistrate or judge) within 48 hours after a warrantless arrest. (Ga. Code § 17-4-62.) The timeframe is 72 hours if there was an arrest warrant. (Ga. Code § 17-4-26.) (For an arrestee who has bailed out of jail, the next court appearance—either a commitment hearing or an arraignment—may be several days or a couple weeks later.)
At the initial appearance, the judicial officer typically begins by:
- reading the charges
- informing the defendant of the right to remain silent and the right to an attorney, and
- determining whether the defendant can afford an attorney or needs one appointed.
In Georgia, defendants accused of felonies have a right to indictment by grand jury. The judge or magistrate will inform the defendant of this right at the initial appearance and of the time the next grand jury will convene. (Ga. Unif. Super. Ct. R. 26.1.)
Right to Counsel
If, at the initial appearance, the defendant exercises the right to counsel, the judicial officer doesn’t need to provide a lawyer immediately. But if the defendant exercises that right and no attorney is present, the officer can’t initiate any “critical stage” of the proceedings, such as taking a plea. (O’Kelley v. State, 278 Ga. 564 (2004), disapproved of on other grounds in Stinski v. State, 286 Ga. 839 (2010).)
At the initial appearance, the judicial officer sets either bail or a date for a commitment hearing for the setting of bail. A defendant who remains silent while the judge sets bail waives the right to a commitment hearing. (The defendant can, however, later petition for a lower bail.) (Ga. Unif. Super. Ct. R. 26.1(H).)
Initial appearances usually occur in magistrate courts. But since only superior courts (the highest trial courts in Georgia) have jurisdiction over felonies, only a superior court judge can set bail on a felony. (Ga. Unif. Super. Ct. R. 26.1(H).) That means that the judicial officer presiding over a defendant’s initial appearance in magistrate court has to set a date for a commitment hearing. (Ga. R. Unif. Mag. Ct. R. 25.1(4).) If the officer doesn’t set such a date, the defendant’s attorney has to file a bond motion in order to ensure that bail is set.
The primary purpose of the initial appearance is to provide judicial oversight for an arrest. For a warrantless arrest, the judicial officer will make a probable cause determination—that is, determine that there’s a valid basis for the arrest. (Ga. Code § 17-4-62; Ga. R. Unif. Mag. Ct. R. 25.1(6).) The judge may consult a sworn police report or affidavit to make this determination or take the testimony of an officer who is present for the appearance. However, this determination is unnecessary if the arresting officers have obtained a warrant after the arrest but prior to the initial appearance. (Ellison v. State, 242 Ga.App. 636 (2000).)
Taking a Plea
With some misdemeanor and traffic offenses, a defendant may be able to plead guilty or no contest and receive a sentence at the initial appearance, even without an attorney present.
Some defendants plead guilty at arraignment, but in most cases, that’s not a good idea without the representation of a lawyer. (For a discussion of how defendants plead at initial appearances or arraignment, see How should I plead at arraignment?)
Effect of Delay
Georgia law requires that authorities release a defendant whom they haven’t brought before a judicial officer within 48 hours of warrantless arrest. (Ga. Code § 17-4-62) But if a judicial officer has issued a warrant after arrest but within the 48-hour period, the arrest is deemed to have been made pursuant to a warrant. (Ellison, supra.)
A defendant’s only remedy for not being brought to an initial appearance within 72 hours of an arrest pursuant to a warrant may be a civil suit. Failure to grant a timely initial appearance doesn’t result in the dismissal of charges or the suppression of evidence. (Chisholm v. State, 231 Ga.App. 835 (1998), overruled on other grounds in Murphy v. State, 270 Ga. 72 (1998) and called into question on other grounds in Blaylock v. State, 242 Ga.App. 195 (2000).)
If 48 hours have passed since a warrantless arrest, the arrestee can petition for release. But if the government obtains a warrant or an indictment before the defendant can secure release, then it may continue to hold him.
Get Legal Help
If you’ve been arrested or charged with a crime, seek the help of an experienced attorney as soon as possible. An experienced lawyer can help in trying to get you out of jail, advise you of the applicable law (including changes in it), and guide you through the court process.