What Happens at an Initial Appearance in Georgia?

Find information about the early goings in Georgia criminal cases, including determinations of bail and "probable cause."

By , Attorney Northwestern Pritzker School of Law

In Georgia, the defendant's first appearance before a judge is often called an "initial appearance." "Arraignment" refers to the hearing at which the prosecution announces the charges it has filed; at that point, the defendant typically responds by pleading either guilty or not guilty.

Timing of the Initial Appearance

An arresting agency or county sheriff's department must bring someone who's been arrested without a warrant before a judicial officer (a magistrate or judge) within 48 hours—unless the person has already bailed out of jail. (Ga. Code § 17-4-62; Ga. Unif. Super. Ct. R. 26.1.) The timeframe is 72 hours if there was a warrant for the arrest. (Ga. Code § 17-4-26; Ga. Unif. Super. Ct. R. 26.1.) (For someone 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.)

Informing the Defendant

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.)

The 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).)

Setting Bail

At the initial appearance, the judicial officer typically sets bail. Importantly, though, bail isn't always required—defendants are sometimes released on their own recognizance.

Initial appearances usually occur in magistrate courts. But only superior courts (the highest trial courts in Georgia) have jurisdiction over felony trials, and only superior court judges can set bail on many felonies. (Ga. Const. Art. VI, § IV, para. 1; Ga. Code § 17-6-1; Ga. Unif. Super. Ct. R. 26.1(H).)

If only a superior court judge can set bail for the charged crime, the defense can petition the superior court, asking for release on bail. The court then notifies the district attorney and sets a date for a hearing within 10 days of receiving the petition. (Ga. Code § 17-6-1(d).)

Determining Probable Cause

One 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 whether 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.

The Effect of Delay

Georgia law normally 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 officers getting a warrant even after arrest, as long as they do so within the 48-hour period, meets legal requirements. (Ellison v. State, 242 Ga. App. 636 (2000).)

A defendant not brought to an initial appearance within the legally required time might not have many options. (Someone in this position, like anyone facing charges, should try to consult a defense attorney as soon as possible.) For instance, Georgia courts have indicated that the government's failing to bring a defendant to court on time doesn't have to result in evidence being suppressed. (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).)

Getting Legal Help

If you've been arrested or charged with a crime, seek the help of an experienced attorney as soon as possible. This article provides just a broad overview; a lawyer familiar with your court system should be able to explain all the relevant court processes, which can be complex.

An experienced lawyer can also tell you about the law that applies to your case, including any recent changes in the law and any local rules that apply (for example, rules specific to the city you're in). Such an attorney should also be able to help in trying to get you out of jail, advise you as to what plea to enter, and otherwise guide you through the court process.

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