Wisconsin, like other states, has procedures to ensure that people arrested for crimes aren’t held in custody for too long without appearing before a judge or court commissioner. The statutes require that a person be taken in front of a judicial officer within a "reasonable time,” without defining what is reasonable. (Initial appearances can occur via telephone or video feed, but the defendant doesn’t have to waive physical appearance.) (Wis. Stat. § 970.01.)
For more general information about initial appearances and arraignments, see Arraignment: Getting to Court.
Wisconsin follows the United States Supreme Court standard that a judicial officer must determine whether probable cause exists within 48 hours of arrest (if the arrest wasn’t pursuant to a warrant). (County of Riverside v. McLaughlin, 500 U.S. 44 (1991).) However, this determination is similar to the process by which judges issue warrants, meaning that the defendant usually isn’t present for the probable cause determination.
The authorities may prolong a pre-court appearance detention if good reasons exist. For example, the prosecutor deciding whether to file charges or the authorities gathering evidence may justify a somewhat prolonged detention. But holding a suspect too long before an initial appearance may have repercussions if the purpose of the delay is to obtain a confession from the defendant, or if the delay compromises the ability to defend the case. (Wagner v. State, 89 Wis. 2d 70 (1979).)
The state must present the defendant to a judge without unreasonable delay. In practice, this means the defendant makes an initial appearance within a day or two of the arrest, excluding weekends and holidays.
What Happens in Court?
Defendants have the right to counsel at an initial appearance to assist them with entering a plea, arguing bail amount and conditions, and examining the criminal complaint for defects. (State v. Mazur, 90 Wis. 2d 293 (1979) ("[I]t is clearly established that a person is entitled to the assistance of counsel 'at or after the time that judicial proceedings have been initiated against him.'").) The law requires, in part, that a judicial officer:
- inform the defendant of the charges and give him or her a copy of the complaint
- inform defendants who don’t have lawyers of the right to counsel, including the availability of a public defender for indigent defendants (the defendant may be entitled to a continuance for purposes of having a lawyer), and
- set future court dates
(Wis. Stat. §970.02.)
The judge will also typically set bail at an initial appearance. The judge will consider the defendant’s criminal history, any missed court dates, ties to the community, and the seriousness of the offense in determining the bail.
If the state is pursuing misdemeanor charges, the judge usually asks for a plea at the initial appearance. (See How should I plead at arraignment?) If the state charges the defendant with a felony, the judge will schedule a preliminary hearing unless the defendant waives it. (Preliminary hearings are an opportunity to challenge the charges, and can (but rarely do) result in dismissal.) The judge must usually hold a preliminary hearing within 10 days of the initial appearance if the defendant is in custody, and 20 days if the defendant is free on bail. The defendant can waive these time limits. (Wis. Stat. §970.03.)
If the charges are misdemeanors and the defendant either has a lawyer or waives the right to representation, arraignment usually occurs at the initial appearance. In felony cases, after the preliminary hearing, unless the judge has dismissed the charges, the court will schedule a time for arraignment. Arraignment must be in open court and the defendant must be present. (But misdemeanor defendants may be excused from attending if the court consents and the defendant has authorized in writing an attorney to appear on his or her behalf).
The judge must advise the defendant of the right to counsel if he or she doesn’t have an attorney. The court (or prosecutor) must read the charges and penalties, and give a copy of any information to the defendant. Most defendants waive the reading and enter a plea, which is almost always “not guilty.” (Certain motions must be brought and heard before the court takes a plea, however.) (Wis. Stat. §971.05.)
Get a Lawyer
If you have been arrested or charged with a crime, you should contact a criminal defense attorney in your area as soon as possible. An experienced lawyer can:
- fully advise you of the applicable law
- guide you through the court process
- assist in trying to get you out of jail, and
- advise you regarding charges, penalties, and any potential defenses.