When someone is arrested in Maryland, they are taken before a judicial officer for an initial appearance. This is their first chance to win their release and begin to fight the charges.
What is an Initial Appearance?
Once the police complete the booking process, they will bring the defendant before a District Court commissioner. This is called an initial appearance because it is the defendant’s first time in court on the charges. The initial appearance has several purposes.
- Appointing a defense attorney.
- Formally notifying the defendant of the charges.
- Advising the defendant of their legal rights.
- Determining whether there was probable cause for the arrest.
- Setting bail or other conditions of release.
What is the Role of the Commissioner?
Maryland uses commissioners rather than judges to handle most initial appearances. The commissioner has the full authority to complete each initial appearance task listed above. You can read the checklist they use here.
The purpose of using commissioners instead of judges is to speed the process and allow eligible defendants to be released sooner. If a commissioner makes a ruling against the defendant, that decision is subject to review by a fully-qualified judge.
How Does the Commissioner Make His or Her Decision?
The commissioner makes two key decisions — probable cause and pretrial release.
Probable cause comes into play when a defendant was arrested without a warrant (a warrant means that a judge already found probable cause). In an initial appearance, probable cause is often found unless the allegations clearly don’t meet the requirements of the law. More in-depth arguments against probable cause are typically reserved for the preliminary hearing and legal motions.
If the commissioner does not find probable cause, the defendant must be released on recognizance. This means they are released only with a promise to come back to court as scheduled, and no bail can be set.
Pretrial release is generally considered to be a right except in the most serious of cases. A defendant is presumed to be eligible for release either with bail or on recognizance. The commissioner considers the following factors in setting bail.
- The seriousness of the charges. For the most serious felonies, a commissioner cannot grant bail at an initial appearance, and a judge will later make a bail determination.
- The strength of the evidence.
- The potential sentence.
- The defendant’s previous record of appearing for other court cases.
- The defendant’s community ties, financial resources and other factors that make it more or less likely the defendant will appear in court.
- Any danger posed by the defendant to the alleged victim, another person, the community as a whole, or himself/herself.
While some cases will warrant higher bail than others, it is unconstitutional for the commissioner to set bail so high that it is impossible for the defendant to afford it.
How Can an Experienced Towson Criminal Defense Attorney Help?
Maryland only recently guaranteed the right to have an attorney in an initial appearance to all defendants. Previously, courts said a defense attorney was not needed because a judge can later review the commissioner’s decisions.
However, initial appearances impact a defendant’s ability to:
- have baseless charges immediately dismissed,
- keep their job if high bail causes them to miss work, and
- meet with their defense attorney and others who can help in their defense.
Further, the commissioner’s decision rests almost entirely on legal arguments that someone who is not a trained lawyer would probably not know how to make. If the commissioner does ask about the facts of the case, the defendant may risk giving up their right to remain silent if they speak on their own behalf rather than having their attorney speak for them.
For these reasons, you should strongly consider talking to a Baltimore County criminal defense attorney before your initial appearance.