Criminal Justice Procedures - Initial


Following the commission of an act recognized by statute as being a criminal violation, the accused, if arrested, will enter the criminal justice system. If the alleged crime was witnessed by someone or a person has a knowledge of a criminal offense, they can go to a magistrate to have a complaint filed. A complaint is a written statement of essential fact, constituting a public offense, made upon an oath before a magistrate.

If the magistrate does issue a complaint, or if upon the presentation of a Grand Jury indictment, a warrant or a summons is issued to notify the defendant of the alleged charge against him or her and the date and time he or she is to appear at his or her initial appearance. The summons is to be used if the offense charged is bailable and has reason to believe that the defendant will respond; otherwise, an arrest warrant is issued. Another process by which a defendant can be arrested is by a police officer without a complaint having been filed. This normally occurs when a defendant is arrested at the scene of the crime or in close proximity, in which case the arresting officer would not have time to get a complaint filed before the arrest.


After a defendant has been arrested, he or she will be taken to jail. Whether the charge is a misdemeanor or felony and where the crime occurred will determine where the defendant will be taken after the arrest. A misdemeanor is punishable by up to six months in jail. A felony is punishable by death or imprisonment in the state prison. If the defendant is charged with a felony or misdemeanor, he or she is transported to the jail for booking. Arrest for misdemeanors outside of the city will either be taken to the nearest jail facility or holding facility in that area. When the defendant arrives at the jail, he or she will be booked in (photographed, fingerprinted, and given a receipt for items or money he or she had in his or her possession at the time.) After booking procedures are completed, the defendant will be placed in a holding cell to await his or her initial appearance in court.

Initial Appearance Hearing

The Arizona Rules of Criminal Procedure require that following arrest the defendant must be taken before a magistrate within 24 hours. At the initial appearance the magistrate will:
  • Ascertain the defendant's true name and address
  • Inform him or her of the charges against him or her
  • Inform him or her of his or her rights to counsel and to remain silent
  • Appoint counsel
  • Determine the conditions of release
Pretrial Services is an arm of the court. In some jurisdictions Pretrial Services will speak to the defendant and will try to get defendants' criminal history, so they can advise the judge about whether the defendant should be released, danger of flight, etc.

Procedure at Initial Appearance

The judge speaks to the defendant, who appears on closed-circuit TV from the jail or in person.
The judge informs the defendant of the charges against him or her, appoints counsel and sets a preliminary hearing date.

Indigence Determination

All defendants are entitled to representation by counsel in criminal proceedings, except in those petty offenses where there is no prospect of imprisonment after a judgement of guilty. This rule also provides that an indigent defendant will be entitled to have an attorney appointed to represent him or her, at County expense, throughout the judicial process of the case.

The definition of indigence recognized by the court is rather vague "An indigent is a person who is not financially able to employ counsel." The indigence determination is made after the defendant is interviewed and the information is verified, if possible, to determine whether or not he or she is financially able to employ private counsel.

Release Determination

Whether or not the defendant will be released while his or her case is pending trial, and the conditions that will be imposed, are important decisions first made at the initial appearance. There are several different types of releases that the court can use in granting pretrial release:
  • Own Recognizance
    The defendant's own promise that he or she will return to court when required is sufficient to insure his or her appearance
  • Supervised O.R. Release
    These conditions may include avoiding contact with an alleged victim, entering a drug program, reporting in person or by telephone to the Supervised Release Program, until disposition of the case.
  • Third Party Custody
    This is an own recognizance release with a third party co-signing the release order, stating that every effort will be made to see that the defendant appears. The third party is also responsible in seeing that if any conditions of the defendant's release are violated, the court is promptly notified.
  • Unsecured Appearance Bond
    The defendant is released without having to post a cash bond; however, he or she does sign an order stating he or she will execute an appearance bond, binding him or her to pay the state of Arizona a designated sum of money should he or she fail to appear.
  • Secured Appearance Bond
    The defendant must deposit with the court either property or cash in the amount set forth in the order before he or she will be released.
  • No Bond
    Under the following circumstances, a defendant can be held without a bond:
    • Capital Offenses: when the proof is evident or the presumption great.
    • Felony Offenses: committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.
When making the release decision, the judge is provided with a form four filled out by the arresting police officer. The form provides information relevant to the nature and circumstances of the offenses charged, the weight of evidence against the accused and other factors that the police feel might affect the defendant's appearance in court. In addition to this form, a representative of the County attorney's office may be present in court to take a position and make a recommendation on certain cases.

After the Initial Appearance

The release conditions and indigence decision made can be changed after reconsideration by the judicial officer presiding at subsequent court proceedings. The next step after the initial appearance for felony matters is the preliminary hearing. (Unless the case was initiated by Grand Jury indictment, in which case there would be no preliminary hearing.) The purpose of the hearing is to determine if there is probable cause to require the case to go to trial in the Superior Court. The preliminary hearing is held in the justice of the peace jurisdiction where the offense allegedly occurred. If the defendant is held in custody, he or she must have his or her preliminary hearing within 10 days after his or her initial appearance, or 20 days if he or she is not in custody. After the preliminary hearing, the defendant's attorney can make a motion to have the release or indigence decision made at the initial appearance reevaluated by the justice of the peace. The County Attorney is also present at this proceeding and will take a position either opposing or having no objection to a change in the release or indigence status.

Grand Jury

There are nine to 15 jurors (nine needed to indict) who decide whether there is probable cause to bind the defendant over on the charges.

This proceeding is secret, very quick and the prosecutor presents its side without the defendant or his counsel present. The prosecutor asks the officer to tell the grand jurors the facts underlying the changes, and the grand jurors decide whether to indict. If the grand jury indicts, this is called a "true bill," and the foreman will sign what will become the indictment. The grand jurors can also add charges, and/or indicts the defendant on some charges but not all. If the grand jury chooses not to indict, the state can use the preliminary hearing method, and vice versa.

Preliminary Hearing

Unlike grand jury, a preliminary hearing occurs in front of a judge, who decides whether there is probable cause. This is a "hearing" where the state presents witnesses, the defendant is present and the defense counsel can cross-examine the witnesses. This is more time consuming and it is open to the public.

The state would choose this route when it wants to preserve the testimony of a witness. The state also gets a preview of what that witness' testimony will be the day of trial. Some witnesses recant prior to the preliminary hearing, and the state is forced to impeach that witness with police reports, 911 tapes and/or prior statements the witness made to police. At trial, the preliminary hearing testimony may sometimes be used in lieu of testimony it the witness does not appear and it provides impeachment material for the prosecutor and defense counsel at trial.

After the indictment or information, the defendant will usually file a motion to remand the case, arguing that there should be a redetermination of probable cause. If the defense or state receives an unfavorable ruling, the losing party will often file a pretrial petition for special action to the Court of Appeals.


Within 10 days of indictment or information and the defendant is present, the judge:
  • Ascertains the defendant's plea of guilty, not guilty, or no contest;
  • Hear motions regarding conditions of release (generally not done in Coconino County.)
  • Sets the date for a trial or pre-trial conference;
  • Advise parties of future proceedings and important deadlines;
  • Advises the defendant of right to be present at all proceedings; that the proceedings will continue in his absence if he is voluntarily absent, a warrant may be issued for his arrest, and that the defendant has a right to a jury trial, if applicable.