Rule 5.2 - Initial Appearance(a)Generally. Every person in custody and not under indictment shall be taken, without unnecessary delay and in accordance with Rule 5.1, before a judge for an initial appearance. At the defendant's initial appearance, the judge shall: (1) ascertain the defendant's true name, age, and address, and amend the formal charge if necessary to reflect this information, instructing the defendant to notify the court promptly of any change of address;(2) inform the defendant of the charges and provide the defendant with a copy of the charging affidavit;(3) if the arrest has been made without a warrant, determine whether there was probable cause for the arrest and note the probable cause determination for the record. If there was no probable cause for the warrantless arrest, the defendant shall be released;(4) if the defendant is unrepresented, advise of the right to assistance of an attorney, and that if the defendant is unable to afford an attorney, an attorney will be appointed as required by law. If the indigent defendant is unrepresented and desires representation, counsel shall be appointed pursuant to Rule 7.2, Rule 7.3 and local rule promulgated pursuant to Rule 1.9; and(5) advise the defendant of: (A) the right to remain silent and that any statements made may be used against the defendant;(B) the right to communicate with an attorney, family or friends, and that reasonable means will be provided to enable the defendant to do so; and(C) the conditions, if any, under which the defendant may obtain release.(b) Felony Cases. When a defendant is charged with commission of a felony, the judge shall also: (1) inform the defendant of the right to a preliminary hearing and the procedure by which that right may be exercised; and(2) if requested, set the time for a preliminary hearing in accordance with Rule 6.1.(c) Initial Appearance Not Required. In all cases where the defendant is released from custody, or has been indicted by a grand jury, the defendant shall not be entitled to an initial appearance.Comment
The purpose of Rule 5.2 is to insert the judicial process between the police and the defendant at the earliest practicable time in order to minimize the effects of carelessness, abuse of power, or unavoidable error in the police function. Rule 5.2 insures procedural compliance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and provides for the prompt determination of the conditions for release. This continues the policy contained in Mississippi Code Section 99-3-17 and former Rule 6.03 of the Uniform Rules of Circuit and County Court.
Pursuant to Rule 1.8, with the defendant's consent, initial appearances may be held via interactive audiovisual devices.
Rule 5.2(c) underscores that a defendant who has been released from custody, or who has been indicted, is not entitled to an initial appearance. This continues the practice provided in former Rule 6.05 of the Uniform Rules of Circuit and County Court.