Rule 5 Appearance Before a Judicial Officer

(a) In General. When a person arrested with or without a warrant, or served a citation or summons, is brought or appears before a judicial officer as provided in Rules 3 and 4, the judicial officer shall proceed in accordance with this rule. All proceedings except those under subdivision (b) of this rule shall be taken down by a court reporter or recording equipment.

(b) Temporary Release Pending Appearance. The Presiding Judge of each unit shall establish procedures and standards by which persons arrested with or without warrant other than during normal business hours may be released pending appearance under this rule. The procedures shall provide for setting conditions of release at any hour. Each court shall maintain a schedule that provides which judge, clerk or designee is available to set conditions of release on each date. The appearance of a person released under this subdivision shall be held as soon as possible after release.

(c) Initial Determination of Probable Cause. If the defendant was arrested without a warrant or appeared in response to a citation issued under Rule 3 and the prosecution is upon information, the judicial officer shall determine in the manner provided in Rule 4(b) for issuance of summons or warrant whether there is probable cause to believe that an offense has been committed and that the defendant has committed it. If the judicial officer does not find probable cause, the judicial officer shall dismiss the information without prejudice and discharge the defendant. Upon conclusion of proceedings under this rule, the judicial officer shall file the indictment or information and affidavit or sworn statement in a unit having jurisdiction of the offense.

(d) Statement by the Judicial Officer. The judicial officer shall inform the defendant before taking any further action under this rule.

(1) Of the charge against the defendant and the minimum and maximum punishments for it and provide the defendant with a copy of the indictment or information and affidavit or sworn statement;

(2) Of the defendant’s right to retain and consult counsel before making any statement or answering any questions at the present hearing or subsequently; in an appropriate case, of the defendant’s right to request the assignment of counsel at state expense if the defendant is financially unable to retain counsel; and of the defendant’s right to communicate with counsel, family, or friends;

(3) That the defendant is not required to make any statement or answer any questions at the present hearing or subsequently and that anything the defendant says may be used against the defendant;

(4) Of the general circumstances under which the defendant may secure pretrial release;

(5) If the defendant is not represented by counsel, of the nature and approximate schedule of further pretrial proceedings to be taken in the case and of the defendant’s rights to discovery; and

(6) Pursuant to 13 V.S.A. § 8005(a), of the information required to be provided regarding collateral consequences of conviction.

(e) Advisement of Pretrial Risk Assessment and Needs Screening; Use of Results Thereof. The judicial officer must inform an eligible defendant that:

(1) If the defendant participates in a pretrial risk assessment or needs screening, the results will be provided, in accordance with 13 V.S.A. § 7554c(e), to the defendant and his or her attorney, the prosecutor, and the court; and

(2) At arraignment, the court may order the defendant to:

(A) Meet with a pretrial services coordinator on a schedule set by the court;

(B) Participate in a needs screening with a pretrial services coordinator; and

(C) Participate in a clinical assessment by a substance abuse or mental health treatment provider and follow the recommendations of the provider; and

(3) The court may order the defendant to engage in pretrial services; and

(4) In accordance with 13 V.S.A. § 7554c(e), information provided by the defendant during the risk assessment or needs screening only may be used for determining bail, conditions of release, and appropriate programming for the defendant in the pending case; and

(5) Information provided by the defendant during the risk assessment or needs screening will be otherwise exempt from public inspection and copying as a public record; and

(6) The defendant will have use and derivative use immunity for information related to the present offense or offenses gained as a proximate result of the risk assessment or needs screening.

(f) Assignment of and Consultation With Counsel. No further proceedings shall be had until counsel has been assigned, if the case is an appropriate one for such assignment, and until the defendant and the defendant’s counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to be represented by counsel.

(g) Determination of Arraignment Date. If the defendant is not discharged under subdivision (c), the judicial officer shall, upon consultation with the prosecuting attorney and the defendant or the defendant’s counsel, set a date and time for arraignment which shall be within a reasonable time, but in no event less than 24 hours, after the time of such determination, except at the request of the defendant. The judicial officer may, if the defendant so requests, conduct the arraignment forthwith as part of the proceedings under this rule. Otherwise, the judicial officer shall either order the defendant to appear before him or her at a later date and time or order the defendant to appear for arraignment in the court having jurisdiction in the unit where the offense occurred at the date and time set.

(h) Pretrial Release. If the defendant has been arrested and is not released upon citation under Rule 3(c) or discharged under subdivision (c) of this rule and the prosecuting attorney does not stipulate to the release of the defendant on his or her own recognizance, the judicial officer shall determine whether and on what conditions the defendant shall be released pending trial in accordance with the standards provided in Rule 46.

(i) Review of Probable Cause Determination. Upon request of the defendant, the judicial officer shall review the finding of probable cause. The review shall be solely on the affidavits or sworn statements taken pursuant to Rule 4(a), (b) or 5(c).