LITIGATION LESSONS The first 72 hours: judicial appearances

time to remind you about an important constitutional rule: every detained person must be given a first appearance before a judge without unnecessary delay. Te Fourth Amendment requires a determination of prob- able cause to detain, by a judicial officer, as a condition for any significant pretrial liberty restraint. Tis is sometimes referred to as the “72-hour rule,” but the rule as expressed in Rule 8.1 of the Arkansas Rules of Criminal Procedure says, “An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial of- ficer without unnecessary delay.” Te rule applies whether a person is arrested by warrant or without a warrant — all ar- restees are entitled to a prompt judicial appearance, without unnecessary delay. Arkansas Rule 4.1 requires a “reasonable cause determi-


nation” by a judge within 48 hours of an arrest without a warrant, but that determination “may be made at the first ap- pearance of the arrested person pursuant to Rule 8.1.” Tus, you need not distinguish between arrests with or without a warrant, if you follow the rule applicable to all arrestees/ detainees: every detained person must be given a first appear- ance before a judge without unnecessary delay. Failure to ensure a prompt first appearance violates the detainee’s constitutional rights — regardless of whether the detainee was arrested by or being held for a different agency, whether a prosecutor wants a person detained at length, or whether a judge is available for a prompt first appearance. When a detainee’s constitutional rights are violated by detention without a prompt first appearance, liability falls on the “keeper of the keys.” Again, regardless of whether the detainee was arrested by a different agency, regardless of any hold requests, and regardless of whether judges make themselves available, if a court determines that a detainee was held for too long without a prompt judicial determination of probable cause at a first appearance, YOU are liable. In Arkansas, creative lawyers have convinced courts to autho-

rize class actions against jails that have repeatedly failed to ensure prompt first appearances for detainees. For systemic and wide- spread failures, these cases can result in hundreds of thousands of dollars in damages assessed against the county and county officials. Tis is why I preach about this issue ad nauseum. To my knowledge, Arkansas counties are doing a great job of ensuring prompt first appearances for detainees, as constitutionally required. To ensure ongoing compliance and limit the risk of liability, we recommend that you have a written policy requiring that all detainees be provided a


reetings, sheriffs, jail administrators, deputies, and jailers. I have spoken to many of you at CLEST trainings and other gatherings about first judicial appearances. But it’s never a bad

first judicial appearance with- out unnecessary delay — always within 72 hours of the beginning of detention. We recommend that your policy and custom be to notify your court every day about those in need of an appearance and to transport each detainee to court for a first appearance every day until it happens. Document every effort made to secure a first

Colin Jorgensen Risk Management Litigation Counsel

appearance for each detainee, including communications with the court and transports. First appearances can be done by video conference and can be

performed by a district judge with authority from the adminis- trative circuit judge of your judicial district. Video first appear- ances are an excellent solution for everyone involved — cheaper, logistically easier, and faster. Talk to AAC Risk Management Services about the Justice Bridge program if you are not already doing first appearances by video conference. If you are unable to secure a first judicial appearance for a detainee within 72 hours (hopefully quicker in most cases), we recommend that your policy be to release the detainee at 72 hours, with notification to the court and prosecutor. Prosecu- tors and judges may not like this policy, but they will not be held liable for unconstitutional detention because they are not the keeper of the keys. And when they realize that you will not hold detainees longer than three days without a first judicial appearance, they may take action to ensure that you are able to provide prompt first appearances, such as scheduling a routine time on Saturdays or Sundays for first appearances. Finally, I cannot fully cover release and alternative commit- ment in a single article along with first appearances, but it is worth noting that Arkansas sheriffs have authority to release detainees under certain circumstances — separate from the recommended release of arrestees if they do not have a first judicial appearance within three days. If the jail is at capacity, there is no duty to accept and detain any arrestee. If an ar- restee is charged with only a misdemeanor or misdemeanors, you can cite and release the arrestee rather than detain. If an arrestee is charged with a felony, you can cite and release the arrestee with the prosecutor’s approval. And if not prohibited by a court order, you can utilize alternative commitment for convicted detainees — allowing them to serve their sentence outside the jail via electronic monitoring, community ser- vice, home confinement, or weekend commitment. If you have any questions about the issues discussed

above, please feel free to contact me at (501) 372-7947 or at Tank you for your service, as always.


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