Rule 5 Initial Appearance.
Rule Text
(a) Appearance Upon an Arrest.
(1) A law enforcement officer within the Virgin Islands making an arrest shall take the arrested person promptly and without unnecessary delay before the court.
(2) If a person arrested without a warrant is brought before the court, a sworn statement prepared by a law enforcement officer supporting probable cause for the arrest shall be filed with the court. (2A) In cases of extradition or rendition, the person arrested must be brought before a judge with all practicable speed, regardless of whether a complaint under oath has been prepared by the date of arrest. Either at the initial appearance of the person arrested, or as soon as practicable thereafter, a complaint under oath must be made against the person arrested, setting forth the ground for the arrest as provided in 5 V.I.C. § 3813 and § 3814. Further proceedings in fugitive, extradition or rendition cases shall comply with statutory requirements of Chapter 331 of Title 5 of the Virgin Islands Code and with Rule 40-1 of these Rules of Criminal Procedure.
(3) Before taking an arrested person before the court, a law enforcement officer may perform any recording, fingerprinting, photographing, or other preliminary police duties required in the particular case, and if such duties are performed with reasonable promptness, the period of time required therefor will not constitute delay within the meaning of this rule.
(b) Determination of Probable Cause.
(1) Probable Cause Finding. The court shall consider any affidavit or information then filed, and shall examine the arresting officer, and/or any other witnesses to the crime under oath at the Initial Appearance Hearing. The defendant may cross-examine witnesses against him. If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the judge or magistrate shall forthwith hold the defendant to answer the complaint. The finding of probable cause may be based upon hearsay evidence in whole or in part.
(2) Probable Cause Not Found. If the judge or magistrate judge determines at the Initial Appearance hearing that there is no probable cause to believe that any offense has been committed or that the accused committed it, the court shall dismiss the proceeding, discharge the accused, and exonerate any bail posted. The discharge of the accused shall not preclude the Government from instituting a subsequent prosecution for the same offense based on additional facts or evidence.
(c) Advice of Rights. If probable cause is found, the court shall inform the defendant of the complaint against him and advise the accused of rights, including the following:
(i) The right to remain silent and that if a voluntary statement is made, it could be used against the accused;
(ii) the right to counsel;
(iii) if unable to hire a lawyer, one would be provided without cost if the affidavit by the accused or the accused's parents, etc., satisfies the court of this need;
(iv) the right to consult with a lawyer before answering any questions and to have the lawyer present during any questioning;
(v) if willing to make a statement, defendant has a right to stop at any time;
(vi) the right to bail; and
(vii) the right to obtain the court's assistance in serving witnesses on defendant's behalf.
(d) Preliminary Bail and Scheduling Arraignment. At the initial appearance hearing, the court shall set such bail as is appropriate consistent with Rule 5-1 and shall schedule the matter for arraignment which shall be held not later than 10 days from initial appearance if defendant is in custody, nor later than 20 days from initial appearance if defendant is not in custody, except for good cause shown. Time limits specified in this rule may be extended with the consent of the defendant and the court, or by the court without the consent of the defendant, but only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.
(f) Video Teleconferencing. Video teleconferencing may be used to conduct an appearance under this Rule.
Effective December 1, 2017 (Promulgation Order 2017-010); ); amended effective January 1, 2020 (Promulgation Order 2019-013)