Initial Appearance

The term "initial appearance," has a very specific meaning in some jurisdictions. So you may or may not technically be making an "initial appearance," but you will have a first appearance of some sort.


You will be nervous

You will be nervous, that's ok. It is to be expected. You may get dry mouth, also very common. You may get tongue tied or flustered. At which point, take a moment, take a deep breath and try and compose yourself. It is quite rare in my experience for a judge or court commissioner to get angry with a defendant who is merely scared or intimidated, but remains polite.



ALWAYS BE POLITE. To everyone. To the clerk or bailiff who checks you in, to the Court reporter if he/she asks you to repeat something, to the DA if they make a statement and absolutely to the Judge or Court Commissioner. Always answer, "Yes, your honor", or "no your honor." The better judges are the least caught up in this, and the lowest court commissioners are the most caught up in this. It costs you nothing and can gain you quite a bit. Also judges are aware of how you treat their staff, whom they are very dependent on. And a clerk who likes you can sometimes make your life a whole lot easier, and one who doesn't like you can sometimes make your life miserable. Many judges give considerable power to their clerks in terms of scheduling, etc. This may become very important to you.


Speaking in Court

Hopefully you have representation and therefore will need to say nothing or almost nothing. And hopefully you will have met with your attorney beforehand. If not, and you are meeting your attorney for the first time or awaiting an appointment of counsel, it is not terribly unusual. You don't need to rush to get out your whole story. Generally this first appearance is to set bail and/or enter a plea. If you really haven't had time to talk with your attorney at all, he should ask for an adjournment or at least to have "the case passed," meaning the judge will move on to the next matter and come back to you, so the Court isn't waiting. What your attorney needs to know at the very beginning is quite limited. He should plead not guilty, (see below), or you should. If asked directly by the judge or court commissioner. Simply say, "Not guilty your honor."


Your Plea, part 1

In all probability you will be pleading not guilty. There is almost never a reason to do differently. A not guilty plea can be changed to a guilty plea at any time very easily. In most jurisdictions a not guilty plea can later be changed to a not guilty by reason of mental disease or defect plea, (a so called NGI plea), at a later time, perhaps after the client is psychologically evaluated. However, the opposite is not true. It is often very difficult, sometimes impossible, to withdraw a guilty plea and plead not guilty. Besides why would you want to surrender without ever firing a shot or seeing what the other side has? If you plead guilty, it's over, you go to sentencing. Why not at least find out what the DA is offering? You almost always have literally nothing to lose. (Unless you are in custody now, are unsure if you will get released on bail and are certain that a guilty plea will result in a sentence requiring no further time served-a very rare occurrence).


Your Plea, part 2

In that very rare case, your attorney should conference with the DA, get their best offer and you can still plead guilty that day or the next, if you so choose. Also, be aware that a not guilty plea is an exception to the general rule about lying to the court. In general, don't lie to the court. Instead keep your mouth shut, (more on that later). But it is understood that a not guilty plea is not a statement of fact but rather a combination of fact and opinion as to whether you committed all of the elements of the offense charged AND whether the prosecution can prove that you did. I have never heard of anyone charged with perjury for pleading not guilty, even if they later plead guilty and admit to the facts of the criminal complaint. In fact if you stand mute, (don't speak), or the Court has questions about your competency, the judge will, in all likelihood, enter a not guilty plea on your behalf.


Bail, part 1

Your attorney will need to know some facts in order to argue for bail/bond. If you are showing up for court on your own, pursuant to a ticket, warrant, or order, then the fact that you showed up speaks well for you. If you are in custody then it will be more difficult. This varies dramatically from jurisdiction to jurisdiction. Some jurisdictions rarely, if ever give bail in a homicide case. That is not true in Wisconsin. Some jurisdictions require cash bond from nearly everyone or everyone not from the community. Many don't. Bond varies from "O.R./P.R." (Own recognizance or personal recognizance), where you are released on a promise to appear for future proceedings; to a signature bond, which may have a monetary value attached, say $500.00. In which case you don't have to post any money up front, but if you fail to show up, you forfeit the bond and owe the Court that amount of money. The most stringent requirement is to post cash, (or sometimes they take credit cards).


Bail, part 2

You are usually allowed a phone call at that point to call someone to "bail you out." Often there is no argument or objection by the prosecution to an O.R. release or a signature bond. But your attorney may need to know some facts to help him argue for a lower bond. These would include: your previous criminal record, or lack thereof; the time that has passed since you did commit a previous offense; if you successfully completed probation or parole; your job status; your family status, especially if you are responsible for taking care of your children; and anything else that tends to indicate that you will show up for future proceedings. Bail/Bond is supposed to depend on only two factors: 1) The likelihood of the defendant returning to Court as ordered and 2) The potential harm to the community while free on bond. Often other factors are considered, like the seriousness of the alleged crime, but they are not supposed to be, and a good attorney will argue that.


Bail, part 3

If you are representing yourself, be prepared to mention these factors. But wait for the Court to ask. The DA may not object to lenient terms and you may not have to make any arguments.


Conditions of Bail

Be prepared for conditions of bail. These typically include: no contact with the alleged victim or witnesses; no further violations of the law, (something we are all supposed to be doing anyway); possibly complete sobriety, especially if the charge involves drugs or alcohol; an alcohol assessment, (in those same types of cases); sometimes restrictions on driving; possible periodic, even daily reporting to some official; to an ankle bracelet linked to a phone or GPS. There could be others; the judge has wide leeway in setting conditions. Be sure that you understand all the conditions before you leave, so that you don't accidentally violate one and get yourself in further trouble.


Dress appropriately

Some people would say, "Dress for Church," but I have seen such an extreme range of attire, from suits, to ridiculously inappropriate "daisy dukes" shorts, to ripped "metallica" T-shirts, that I don't tell my clients that anymore. I am very specific; a suit is not necessary, but a shirt and tie certainly won't hurt. At the very least: no shorts, no T-shirts, (a shirt with a collar), nothing very revealing, especially for females. I would see the reasonable optimum as a collared shirt and tie and either dress paints or khakis with dress shoes or casual leather shoes, not tennis shoes. However, I have seen people in nice jeans without rips and in tennis shoes, where it didn't seem to hurt them. And I have seen people dressed ridiculously and I don't know if it hurt them. Err on the side of caution. No hats. No gum chewing; it makes you look cavalier and disinterested. Take your coat off inside. Otherwise, it looks like you can't wait to get out of there. (Even if that is true).


Talking in Court

Keep your voice down. The last thing that you want is to draw the judge's attention or anger while he is dealing with another case and you are yakking loudly. Observe and follow the norm. In some courtrooms people are routinely coming and going, even while a witness is on the stand or the judge is speaking. In other Courts that is strictly forbidden. Wait and see what the norm is. Always err on the side of caution, and if you do enter or leave, close the door gently behind you so as to minimize the disruption. If your attorney asks you questions while you are waiting, you should certainly answer them, but both of you need to keep your voices down or step outside to have an extended conference; otherwise you may draw the attention of the judge or at least a bailiff. If you do, then simply apologize and then shut up. Don't explain or make excuses. It will only tend to make things worse. ). Follow any instructions of the bailiff or clerk.


Be on Time

Be on time or at the very least call the judge's clerk and/or your attorney if you are unavoidably delayed. If you tell no one, you will likely have a warrant issued for your arrest. If you tell your attorney or the clerk and reason is a good one and/or you appear reasonably soon after, you probably will be ok. (No guarantees from me). But why risk it? Try to be early, not just on time. That being said, be prepared to wait. The judge may be running behind, often severely, your attorney may be running behind or stuck in another courtroom. If so, be sure you check in with the bailiff or clerk and explain you are waiting for your attorney. Many courts have "cattle calls," where a whole group of defendants are told to show up at the same time. Obviously some of them are going to wait for a while. The general rule is, first to check in is first to be heard, but attorneys trump, so cases with lawyers get heard first. Sit and wait quietly, unless your name is called.


Addressing the Judge

Speak only when spoken to, and then preferably, "yes, your honor," "no, your honor," or "not guilty, your honor." Let your attorney do the rest unless the judge addresses you directly, which he may do to ask for a plea; to ask if you understand your rights; to ask if you are voluntarily waiving certain rights; or to ask if you wish to make a statement before sentencing. If you do speak, don't mumble, don't cover your mouth with your hand, speak clearly and into the microphone, (if there is one). And during your whole time at the defense table, keep your hands out of your lap. It makes the bailiff nervous and makes it seem as if you have something to hide.


Speaking at Sentencing, part 1

The worst possible statement you could make before sentencing is a series of excuses. Believe me, the judge has heard every one of them before. If any of them is valid, then your attorney should already have argued it for you, if he or she forgets, quietly slip them a note or whisper to them when there is a pause. Do not speak out. It is your attorney's job to minimize your culpability and the seriousness of the alleged offenses. Let him or her do it, and if they don't then get a new attorney. If you attempt to give the judge excuses and do not take responsibility for your actions, you will only make things much worse. Keep it short and simple. For example, "I am truly sorry your honor for what I have done and the trouble I have caused. I hope that I can get a second chance to prove that this was an aberration, (or to prove that I can do better in the future)." That's it. Don't mention sentence length, that's for your attorney to argue or negotiate.


Speaking at Sentencing, part 2

If you can not bring yourself to make a reasonable, respectful, short statement to the Court, then simply say, "I have nothing further to add your honor. My attorney has stated my case very well." That will at least do minimal damage. Judges like to see remorse and see defendants take responsibility. But words are cheap and fake words or emotions are usually transparent to the Court. Saying nothing or essentially nothing, as above, is not ideal but it is a whole lot better than making excuses, which will always hurt you.


Speaking at Sentencing, part 3

If you have plead no contest, or in some states what is called an Alford-type plea, where you admit there is enough evidence to convict you, but you do not admit to the acts, then you are in a delicate situation. Many judges will ask why you are pleading no contest, not guilty? Your attorney should answer if there is a reason, such as possible civil liability, which most judges will accept. If there is no particular reason then you and your attorney should discuss this beforehand., as some judges take this very seriously and others don't care at all, since the end result is the same. But be prepared with a reason. If you do plead no contest, you probably want to be even more careful in what you say to the court, perhaps simply saying that you are sorry for the whole circumstances or that you were stupid to put yourself in this position and that you will not be making the same mistake twice. That statement alone involves no admission to a specific criminal act.


"Alford"-type pleas

If you are entering an Alford-type plea, then I must assume you have counsel, because this is quite tricky and some judges won't accept them. But if you do, since you are not taking responsibility for your actions, your attorney has to walk a very fine line in sentencing arguments. Your best bet at that point is, don't screw it up. Say essentially nothing: "No, your honor, my attorney has stated everything important." Or say nothing: "No thank you, your honor." Otherwise you are likely to either contradict your plea or to risk angering the judge by reinforcing the fact that you are not taking responsibility for your actions. These pleas are somewhat rare and difficult to pull off, but I will assume your attorney has done the groundwork and his homework and your job is to look humble, contrite and respectful and to say as little as possible.


When Your Sentence is Pronounced

Some people advise that when you hear your sentence, show no reaction whatsoever. That is certainly safe advice. But we are all human, and if you have "won" by receiving a relatively light sentence or lighter than expected, or best of all a not guilty verdict, then showing some joy is to be expected. Smiling, shaking your attorney's hand, even hugging your spouse, will probably not be a problem. On the other hand, if it is bad news, if you have received a stiffer sentence than expected or hoped, then show as little reaction as possible. You can certainly look down, look sad, etc. But DO NOT show anger, you will likely provoke a reaction from the bailiffs and possibly get in more trouble and why show the prosecution that they have gotten to you. Simply stay quiet. If given a moment, speak to your attorney and no one else. Your attorney should be able to go over your options with you. These will vary depending on how you got to this point. But there are always options.


After Sentencing

Jailhouses are full of snitches and "jailhouse lawyers," who fancy themselves expert in the law. (If they are so expert why are they sitting in jail?) If there is not time immediately after sentencing, ask your attorney to come see you and discuss your options. He or she will likely volunteer to do this anyway. Keep your chin up, there is always hope, and there are always Courts of Appeal.


Parting Advice

I hope that this guide has helped and I wish you luck in your proceedings. You will find many caring, compassionate, knowledgeable people throughout this process, but you will also find idiots and people who don't give a damn. I wish that I could say that all defense lawyers fell into the first category. I can not. But most that I know, do. If not, get rid of them and find another lawyer. There are plenty out there. Ask friends and family for referrals. Go to websites with reviews. In general don't be swayed by slick TV ads, those guys are rarely the best that you can do. Good Luck.