Rule 5 Initial Appearance
Rule Text
(a) Initial appearance before a judicial officer. — A person arrested and in custody shall be taken without unnecessary delay before a judicial officer of the court from which the warrant issued or if no warrant has issued before a judicial officer of the court where the charging document will be filed with the initial appearance to be in person or by video conferencing, at the discretion of the judicial officer. Use of video conferencing at initial appearance shall be governed by W.R.Cr.P. 43.1(b)(1). A person arrested without a warrant shall be released from custody unless probable cause for the arrest is established to the satisfaction of a judicial officer without unnecessary delay, but in no more than 72 hours. When a person arrested without a warrant is brought before a judicial officer an information or citation shall be filed at or before the initial appearance and, unless a judicial officer has previously found probable cause for the arrest, probable cause shall be established by affidavit or sworn testimony. When a person, arrested with or without a warrant or given a summons, appears initially before the judicial officer, the judicial officer shall proceed in accordance with the applicable subdivision of this rule.
(b) Offenses not required to be tried in district court. — If the charge against the defendant is not one which is required to be tried in district court no preliminary examination shall be held. The defendant may be arraigned at the initial appearance or at a later time. Arraignment shall be conducted in open court and shall consist of reading the information or citation to the defendant or stating to the defendant the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the information or citation and any supporting affidavits before being called upon to plead. In addition, the judicial officer shall inform the defendant of the following:
(1) The defendant’s right to retain counsel and, unless the defendant is charged with an offense for which appointment of counsel is not required, of the right to appointed counsel;
(2) That the defendant is not required to make a statement and that any statement made may be used against the defendant;
(3) Of the defendant’s right to a trial by jury; and
(4) If the defendant is in custody, of the general circumstances under which pretrial release may be secured.
(c) Offenses charged by information or citation and required to be tried in district court. — If the charge against the defendant is required to be tried in district court, the defendant shall not be called upon to plead until arraignment in district court. At the initial appearance, the defendant shall be given a copy of the information or citation and any supporting affidavits. The judicial officer shall read the information or citation to the defendant or state to the defendant the substance of the charge, and shall explain the defendant’s right to retain counsel or to request the assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. The judicial officer shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant. The judicial officer shall also inform the defendant of the right to a preliminary examination. The judicial officer shall allow the defendant reasonable time and opportunity to consult counsel and shall detain or conditionally release the defendant as authorized by statute or these rules. A defendant is entitled to a preliminary examination, unless waived, when charged by information or citation with any offense required to be tried in the district court. If the defendant waives preliminary examination, the case shall be transferred to the district court. If the defendant does not waive the preliminary examination, the judicial officer shall schedule a preliminary examination. Such examination shall be held within a reasonable time but in any event not later than 10 days following the initial appearance if the defendant is in custody and not later than 20 days if the defendant is not in custody, provided, however, that the preliminary examination shall not be held if the defendant is indicted before the date set for the preliminary examination. With the consent of the defendant and upon a showing of good cause, taking into account the public interest in the prompt disposition of criminal cases, time limits specified in this subdivision may be extended one or more times by a judicial officer. In the absence of such consent by the defendant, time limits may be extended by a judicial officer only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice. Rule 5(c) does not apply to offenses for which a grand jury has issued an indictment.
Amendment history: Amended July 22, 1993, effective October 19, 1993; amended July 24, 2001, effective November 1, 2001; amended and effective April 22, 2008; amended August 21, 2018, effective January 1, 2019. Compare. — Rule 5, Fed. Rules Cr. Proc. Purpose of rule is to prevent officers from illegally obtaining statements during a defendant’s initial confinement prior to appearance before a magistrate (now judicial officer). Cherniwchan v. State, 594 P.2d 464, 1979 Wyo. LEXIS 406 (Wyo. 1979). Rule does not cover probation revocation proceedings. — Schepp v. Fremont County, 685 F. Supp. 1200, 1988 U.S. Dist. LEXIS 4206 (D. Wyo. 1988), aff’d, 900 F.2d 1448, 1990 U.S. App. LEXIS 4606 (10th Cir. Wyo. 1990). Investigative reports need not be delivered prior to plea. — Delivery of law enforcement investigative reports to a defendant before entry of a plea is not required under W.R.Cr.P. 5(b). Ingalls v. State, 2002 WY 75, 46 P.3d 856, 2002 Wyo. LEXIS 85 (Wyo. 2002). Burden to prove violation of rule. — The burden is on the defendant to prove a violation of this rule. Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh’g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977); Raigosa v. State, 562 P.2d 1009, 1977 Wyo. LEXIS 246 (Wyo. 1977). Confession as waiver of rule. — A confession given under a full Miranda warning operates as a waiver of this rule. Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh’g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977). Miranda requirements have decreased the importance and softened the impact of subdivision (a). — Raigosa v. State, 562 P.2d 1009, 1977 Wyo. LEXIS 246 (Wyo. 1977). Reduction of oral admission to writing. — This rule is not automatically violated by the reduction to writing of an oral admission. Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh’g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977). Dismissal of charges. — Failure to provide timely preliminary hearing did not mandate dismissal of charges with prejudice, where defendant entered unconditional guilty pleas to those charges. Blankinship v. State, 974 P.2d 377, 1999 Wyo. LEXIS 24 (Wyo. 1999).