After being charged and arrested, a defendant will make their first appearance in court. If a defendant has not bonded out, they will appear in court in custody by the authorized police officers. If a defendant has bonded out, they will be required to be at court at the date and time listed on their bond paperwork. A failure to appear at this court hearing (or future hearings) can result in the bond being revoked and a new arrest warrant issued.

Timing of First Appearance

Section 22-2901 lays out the parameters of first appearances. These appearances must happen quickly. Usually a defendant is seen by a judge the next day the court is open but that is not a set deadline. Instead, factors including circumstances of the arrest, investigation, and charges filed will determine whether there is an “unnecessary delay.” In State v. Nading, the defendant was arrested early on Saturday morning, the charges were filed later that day, but he was not seen by a judge until Tuesday. The Kansas Supreme Court held this was not an unnecessary delay based upon the investigation’s circumstances. Therefore, as a general rule, the first appearance is usually the next “business day,” but the following day is also within reason.

In the case a defendant is held too long before being first appeared before a judge, they would have a valid complaint under Section 22-2901. The court could suppress evidence that was gathered during the unnecessary delay. Often this information is an information learned while the police interrogated the defendant. Courts have recognized that a person is likely to say whatever they need to say to try to be released the longer they are left in custody. In State v. Crouch, the court relied on that rationale when it suppressed a confession from a defendant who had been in jail for almost two weeks without their first appearance. The Kansas Supreme Court has also stated that in extreme cases, a dismissal of the charges may be warranted. However, no case, including Crouch, has yet to have an excessive, unnecessary long delay to warrant a dismissal of the charges.

Purpose of First Appearance

First appearances have a specifically limited purpose. In felony cases, the defendant is not asked to offer any defense or explanation of the incident, nor are they asked to plead guilty or not guilty. Rather, this appearance is to safeguard the defendant’s rights as held in by the Kansas Supreme Court in State v. Wakefield. Included in these rights is the checking of the investigation to ensure probable cause was present to warrant the arrest. The court desires to know that there is adequate support to keep the defendant in custody as well as to re-visit the previous set bond. The court also wants to ensure that it stops any unlawful attempts to inappropriately compel the defendants into waiving their rights by law enforcement. Finally, the defendant will be advised of what the specific charges are against them as well as their right to request an attorney.

First appearances can also be seen as a “housekeeping” or “table setting” hearing for the preliminary examination. The objective is that the defendant and their attorney will be prepared for the preliminary examination. The preliminary examination is where the defense will challenge the prosecuting attorney’s evidence which gave probable cause to filing the complaint. This challenging can only happen when the defendant has an attorney and that attorney has had ample time to prepare. Therefore, a major point of the first appearance is to determine whether the defendant wants to hire legal counsel, represent themselves (called pro se), or if they qualify for a public defender.

The dilemma of public defenders is well known. These lawyers often have huge caseloads and can become overburdened by the amount of work. This sometimes leads to inadequate legal representation that a criminal case normally demands. It can be quite difficult to find and hire private legal counsel while a defendant is in custody. Therefore, family members and friends can reach out to attorneys to hire them for an incarcerated individual. The quicker an attorney is contacted and hired, helps ensure that a case does not become delayed and that the defendant is not held in custody for longer than what is necessary.