The Rule 5 Hearing
When a person is arrested on allegations that he/she has committed a federal crime, the first step in the process is called an initial appearance, which is commonly referred to as a “Rule 5 Hearing”. This appearance will occur within 24 hours of the arrest. Typically, neither the accused nor his family has had time to retain legal counsel, so at this initial step the accused usually appears unrepresented. The following is what the law says about the initial appearance under Rule 5 of the Federal Rules of Criminal Procedure.
Rule 5. Initial Appearance
(a) In General.
(1) Appearance Upon an Arrest.
(A) A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise.
(B) A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.
(2) Exceptions.
(A) An officer making an arrest under a warrant issued upon a complaint charging solely a violation of 18 U.S.C. §1073 need not comply with this rule if:
(i) the person arrested is transferred without unnecessary delay to the custody of appropriate state or local authorities in the district of arrest; and
(ii) an attorney for the government moves promptly, in the district where the warrant was issued, to dismiss the complaint.
(B) If a defendant is arrested for violating probation or supervised release, Rule 32.1 applies.
(C) If a defendant is arrested for failing to appear in another district, Rule 40 applies.
(3) Appearance Upon a Summons. When a defendant appears in response to a summons under Rule 4, a magistrate judge must proceed under Rule 5(d) or (e), as applicable.
(b) Arrest Without a Warrant. If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)’s requirement of probable cause must be promptly filed in the district where the offense was allegedly committed.
(c) Place of Initial Appearance; Transfer to Another District.
(1) Arrest in the District Where the Offense Was Allegedly Committed. If the defendant is arrested in the district where the offense was allegedly committed:
(A) the initial appearance must be in that district; and
(B) if a magistrate judge is not reasonably available, the initial appearance may be before a state or local judicial officer.
(2) Arrest in a District Other Than Where the Offense Was Allegedly Committed. If the defendant was arrested in a district other than where the offense was allegedly committed, the initial appearance must be:
(A) in the district of arrest; or
(B) in an adjacent district if:
(i) the appearance can occur more promptly there; or
(ii) the offense was allegedly committed there and the initial appearance will occur on the day of arrest.
(3) Procedures in a District Other Than Where the Offense Was Allegedly Committed. If the initial appearance occurs in a district other than where the offense was allegedly committed, the following procedures apply:
(A) the magistrate judge must inform the defendant about the provisions of Rule 20;
(B) if the defendant was arrested without a warrant, the district court where the offense was allegedly committed must first issue a warrant before the magistrate judge transfers the defendant to that district;
(C) the magistrate judge must conduct a preliminary hearing if required by Rule 5.1;
(D) the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if:
(i) the government produces the warrant, a certified copy of the warrant, or a reliable electronic form of either; and
(ii) the judge finds that the defendant is the same person named in the indictment, information, or warrant; and
(E) when a defendant is transferred and discharged, the clerk must promptly transmit the papers and any bail to the clerk in the district where the offense was allegedly committed.
(4) Procedure for Persons Extradited to the United States. If the defendant is surrendered to the United States in accordance with a request for the defendant’s extradition, the initial appearance must be in the district (or one of the districts) where the offense is charged.
(d) Procedure in a Felony Case.
(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following:
(A) the complaint against the defendant, and any affidavit filed with it;
(B) the defendant’s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel;
(C) the circumstances, if any, under which the defendant may secure pretrial release;
(D) any right to a preliminary hearing; and
(E) the defendant’s right not to make a statement, and that any statement made may be used against the defendant; and
(F) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant’s request, a treaty or other international agreement may require consular notification.
(2) Consulting with Counsel. The judge must allow the defendant reasonable opportunity to consult with counsel.
(3) Detention or Release. The judge must detain or release the defendant as provided by statute or these rules.
(4) Plea. A defendant may be asked to plead only under Rule 10.
