110.1Initial Appearance & First Appearance
- Defendant is entitled to have an “initial appearance” promptly after arrest so that a judicial official (usually a magistrate) can inform the defendant of the charges against him and his right to counsel, and set pretrial release conditions.
- Defendants charged with felonies are also entitled to have a “first appearance” (usually before a district court judge) for the court to review charges and release conditions, advise defendant of his rights, and schedule a probable cause hearing.
- Failure to provide defendant with a proper and timely initial or first appearance will not typically bar subsequent prosecution of the defendant, unless he was prejudiced by the failure.
Difference Between “Initial Appearance” and “First Appearance”
A law enforcement officer making an arrest for a misdemeanor or a felony with or without a warrant must take the arrested person before a judicial official for an initial appearance. See G.S. 15A-511; G.S. 15A-501(2). A magistrate usually conducts the initial appearance.
A defendant must also be given a first appearance if the charge against the defendant is a felony (or one of the accompanying misdemeanors described in G.S. 7A-271). See G.S. 15A-601 - 606. Effective December 1, 2021, first appearances are also required for defendants charged with misdemeanors who are held in custody under a magistrate's order, warrant, or citation. G.S. 15A-601(a). The first appearance is usually held within the next day or two before a district court judge, except when the original charge is an indictment, in which case the first appearance should be held in superior court.
No Right to Counsel
Because neither the initial appearance nor first appearance is a “critical stage” of court proceedings, a defendant does not have a right to counsel or entitlement to court-appointed counsel at these proceedings, but he or she will likely be appointed counsel following the first appearance for all future proceedings, unless private counsel has already been retained. G.S. 15A-601(a); see also the related entry on Right to Counsel – When Right Applies.
Initial Appearance Overview
- When to Hold It
The initial appearance must be held “without unnecessary delay” after defendant is arrested. G.S. 15A-511(a)(1). A limited period of delay will be permitted between the arrest and initial appearance if it was necessary and reasonable. See, e.g., State v. Reynolds, 298 N.C. 380 (1979) (defendant was not under arrest until after officers began questioning him; he confessed within 40 minutes after questioning began and he was fully informed of his rights twice within that 40 minutes and waived counsel; he was taken to a magistrate as soon as the confession was recorded about two or three hours later); State v. Chapman, 343 N.C. 495 (1996) (ten-and-one-half hour delay was proper); State v. Littlejohn, 340 N.C. 750 (1995) (thirteen-hour delay was proper); State v. Daniels, 337 N.C. 243 (1995) (half-hour delay was proper); State v. Sings, 35 N.C. App. 1 (1978) (interim period of seven hours was spent recovering the stolen goods and attempting to locate co-defendant); see also State v. Hunter, 305 N.C. 106 (1982) (no causal relationship between delay in taking defendant before a judicial officer and defendant's confession – motion to suppress confession denied).
- Basic Requirements/Procedure
- Inform defendant of charges against him or her, and right to communicate with counsel. G.S. 15A-511(b).
- Determine probable cause if arrest was without a warrant. G.S. 15A-411(c).
- Set bail and inform defendant of release conditions. G.S. 15A-411(e). See related entries on Pretrial Release.
- A magistrate may appoint counsel for a non-capital charge, if the magistrate is so authorized by the chief district court judge. G.S. 7A-146(11); 7A-292(15).
First Appearance Overview
- When to Hold It
A first appearance must be held before a district court judge or, if unavailable, before a superior court clerk (or a magistrate, if the clerk is also unavailable), within 72 hours from the time that the defendant was taken into custody or at the first regular session of district court held in the county, whichever occurs first. G.S. 15A-601(c), (e) (effective December 1, 2021; prior to this date, the time limit was 96 hours and magistrates were not authorized to conduct a first appearance). The 72-hour time limitation does not apply if the defendant has been released from custody or was never taken into custody. G.S. 15A-601(c).
- Basic Requirements/Procedure
- Waiver of first appearance. G.S. 15A-601(d). Note that defendant may not actually “waive” a first appearance, but the defendant need not personally appear if represented by counsel at the hearing. G.S. 15A-601(d).
- Judge must warn defendant of right against self-incrimination. G.S. 15A-602.
- Judge must assure defendant’s right to counsel. G.S. 15A-603, 15A-606(e), and 15A-1242.
- Judge must examine charge, inform defendant of charge, and provide defendant with copy of charge. G.S. 15A-605.
- Judge must notify prosecutor if charge is improper or defective. G.S. 15A-604.
- Judge must set or review pretrial release conditions. G.S. 15A-605(3); G.S. 15A-531 through 536.
- Scheduling of probable cause hearing. G.S. 15A-606. Judge must schedule the hearing not sooner than five working days following first appearance (unless defendant and prosecutor consent to earlier scheduling) and not later than 15 working days following first appearance (unless no session of district court is scheduled in the county within that time, in which case judge must schedule the hearing for the first day of the next session). Judge must schedule a probable cause hearing unless defendant in writing waives his or her right to such hearing, with the written consent of his or her attorney, in which case the judge must transfer case to superior court. If a true bill of indictment is returned by the grand jury before the probable cause hearing takes place, then no hearing is required. See State v. Lester, 294 N.C. 220 (1978).
Use of Audio and Video Transmission for First Appearance
G.S. 7A-49.6 broadly authorizes the use of audio and video transmission to conduct "all types" of court proceedings as long as the presiding judge and participants can see and hear each other, there is no objection made for good cause, the videoconferencing application used has been approved by the Administrative Office of the Courts, and the procedures "safeguard the constitutional rights of those persons involved in the proceeding and preserve the integrity of the judicial process," including preserving the defendant's right to confer confidentially with counsel and confront witnesses, if applicable. G.S. 7A-49.6 was established by S.L. 2017-47 (S.B. 255), effective June 18, 2021, which also repealed the provisions of G.S. 15A-601 that had previously limited the use of remote audio and video transmission to noncapital cases only.
Failure to Follow Initial Appearance or First Appearance Procedures
Failure to hold an initial or first appearance, or failure to follow the procedures described in G.S. 15A-501 and G.S. 15A-511 concerning conducting the initial or first appearance, does not affect the validity of a trial, unless defendant shows that his or her constitutional rights were prejudiced as a result. State v. Reynolds, 298 N.C. 380 (1979); State v. Pruitt, 42 N.C. App. 240 (1979).