Rule 26. Pre indictment proceedings.

Rule 26.1. Bonds and first appearance.

Rule 26.2. Commitment hearing by court of inquiry

Rule 26.3. Delayed indictments.

Rule 26.1. Bonds and first appearance.

Immediately following any arrest but not later than 48 hours if the arrest was without a warrant, or 72 hours following an arrest with a warrant, unless the accused has made bond in the meantime, the arresting officer or the law officer having custody of the accused shall present the accused in person before a magistrate or other judicial officer for first appearance.

At the first appearance, the judicial officer shall:

(A) Inform the accused of the charges;

(B) Inform the accused that he has a right to remain silent, that any statement made may be used against him, and that he has the right to the presence and advice of an attorney, either retained or appointed;

(C) Determine whether or not the accused desires and is in need of an appointed attorney and, if appropriate, advise the accused of the necessity for filing a written application;

(D) Inform the accused of his or her right to a later pre indictment commitment hearing, unless the first appearance covers the commitment hearing issues, and inform the accused that giving a bond shall be a waiver of the right to a commitment hearing;

(E) In the case of warrantless arrest, make a fair and reliable determination of the probable cause for the arrest unless a warrant has been issued before the first appearance;

(F) Inform the accused of the right to grand jury indictment in felony cases and the right to trial by jury, and when the next grand jury will convene; [In state court, see State Court Rule 26.1(F).]

(G) Inform the accused that if he or she desires to waive these rights and plead guilty, then the accused shall so notify the judge or the law officer having custody, who shall in turn notify the judge.

(H) Set the amount of bail if the offense is not one bailable only by a superior court judge, or so inform the accused if it is.

Rule 26.2. Commitment hearing by court of inquiry

(A) At the commitment hearing by the court of inquiry, the judicial officer shall perform the following duties:

(1) Explain the probable cause purpose of the hearing;

(2) Repeat to the accused the rights explained at the first appearance;

(3) Determine whether the accused intends to plead "guilty," or "not guilty," or waives the commitment hearing;

(4) If the accused intends to plead guilty or waives the hearing, the court shall immediately bind the entire case over to the court having jurisdiction of the most serious offense charged;

(5) If the accused pleads "not guilty" the court shall immediately proceed to conduct the commitment evidentiary hearing unless, for good cause shown, the hearing is continued to a later scheduled date;

(6) Cause an accurate record to be made of the testimony and proceeding by any reliable method.

(7) The judicial officer shall bind the entire case over to the court having jurisdiction of the most serious offense for which probable cause has been shown by sufficient evidence and dismiss any charge for which probable cause has not been shown.

(8) On each case which is bound over, a memorandum of the commitment shall be entered on the warrant by the judicial officer. The warrant, bail bond, and all other papers pertaining to the case shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense for delivery to the district attorney, Each bail bond shall contain the full name, telephone number, residence, business and mailing address(es) of the accused and any surety.

(9) A copy of the record of any testimony and the proceedings of the first appearance and the commitment hearing shall be provided to the proper prosecuting officer and to the accused upon payment of the reasonable cost for preparation of the record.

(10) A judicial officer, conducting a commitment hearing, is without jurisdiction to make final disposition of the case or cases at the hearing by imposing any fine or punishment, except where the only charge arising out of the transaction at issue is the violation of a county ordinance.

(B) At the commitment hearing, the following procedures shall be utilized:

(1) The rules of evidence shall apply except that hearsay may be allowed;

(2) The prosecuting entity shall have the burden of proving probable cause; and may be represented by a law enforcement officer, a district attorney, a solicitor, a private attorney or otherwise as is customary in that court;

(3) The accused may be represented by an attorney or may appear pro se; and,

(4) The accused shall be permitted to introduce evidence.

Rule 26.3. Delayed indictments.

The district attorney shall notify the chief judge in writing of the name of any unindicted accused who has been in custody under criminal felony charges for 45 days within 2 business days after said 45 day period has run. The chief judge may take any action deemed necessary or appropriate under the circumstances.