R.I. Super. Ct. R. Crim. P. 5
R.I. Super. Ct. R. Crim. P. 5
1972 Notes
Subdivision (a), though based upon the federal rule, differs in some important aspects. For one, under the proposed Rhode Island rule a person arrested pursuant to a warrant shall be taken before a judge of the District Court as commanded in the warrant, which, pursuant to Rule 4(b)(1), ordinarily will be a judge of the division in which the crime was committed; under the federal rule the return is to be made before the nearest available commissioner or other appropriate judicial officer.
The proposed rule also requires that a person who is arrested without a warrant is to be taken before a judge of the District Court for the division in which the person was arrested or in which the crime was committed. This varies from the practice authorized under G.L. 1956 (1969 Reenactment), § 12-7-13 (Supp.1970) which provides that an arrestee is to "be brought before a judge of the district court," without specifying the division. The Rhode Island rule also differs in this respect from its federal counterpart which provides that a person arrested without a warrant be brought before the nearest available commissioner or other appropriate judicial officer.
One of the more significant changes this rule introduces into Rhode Island procedure is the requirement, taken from the federal rule, that an arrestee be brought before a judge "without unnecessary delay." Under current Rhode Island law the police may wait at least twenty-four hours and as much as seventy-two hours before taking an arrested person before a judge. G.L. 1956 (1969 Reenactment), § 12-7-13 (Supp.1970). See also G.L. 1956 (1969 Reenactment), § 12-2-6 (Supp.1970) (railroad and steamboat police). The proposed rule (which incorporates the standards developed by the federal courts in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and their progeny), would change this practice by abolishing these specific time periods and replacing them with a more flexible provision which in most, though not all, instances would reduce the permissible period between arrest and appearance before a judge of the appropriate division of the District Court. The purpose of this requirement is to assure that the arrestee is provided with an adequate statement of his constitutional and statutory rights as soon after arrest as possible, thereby minimizing the possibility of an unwitting waiver of important rights--particularly the protection against self-incrimination. See 1 Wright, Federal Practice and Procedure § 72 (1969). Failure to bring an arrestee before a judge as required by the rule would result in exclusion at the trial of all incriminatory statements or other inculpatory evidence obtained from the person during the period of unnecessary delay. See Wright, supra §§ 73-75. In reality, adoption of this provision should have little, if any, tangible effect upon the outcome of criminal trials in Rhode Island. After the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), confessions obtained in violation of a person's right against self-incrimination are inadmissible. Under Miranda, the statement of rights that Rule 5 requires a neutral judge to give to the arrestee must now be given by the police at the time of arrest if they wish to interrogate. Furthermore, even if that requirement has been met, an incriminating statement purportedly obtained after the accused has knowingly waived his right to remain silent and to assistance of counsel will probably be inadmissible if it comes after "lengthy interrogation or incommunicado incarceration," which the Court views as "evidence that the accused did not validly waive his rights" and as "inconsistent with any notion of a voluntary relinquishment of the privilege." Id. at 476. Thus, any confessions which might be obtained by delaying appearance before a magistrate, in all likelihood would not be admissible. See Wright, supra § 76. Under these circumstances there is no persuasive reason, practical or other, for not requiring that an arrested person be brought before an appropriate judicial officer "without unnecessary delay."
The final three sentences of subdivision (a), relating to bail, have no direct counterpart in the federal rule. These provisions are intended to assure to all arrested persons the right to a prompt bail hearing. When an arrested person is brought before a judge of the District Court after arrest, that judge will hold the hearing unless the offense charged is one of those bailable only by a Justice of the Superior or Supreme Court. See G.L. 1956 (1969 Reenactment), § 12-13-5. If, however, there is a delay between the time of arrest and appearance before a judge of the District Court, the rule provides that the arrestee is entitled to a prompt bail hearing, before some other officer authorized to bail persons--typically, a justice of the peace specially designated by the Chief Judge of the District Court pursuant to G.L. 1956 (1969 Reenactment), § 12-10-2 (Supp.1970). Under present practice justices of the peace who conduct bail hearings are not paid for this service by the State; instead, they are compensated by the persons for whose benefit the hearing is held. Typically these hearings are required when an arrest has been made at night or during the weekend when judges of the District Court are not available. Presumably, under existing practice if an arrested person is unable, or unwilling, to pay the fee for a special bail hearing, he will not be considered for release on bail until he is brought before a judge of the District Court on the next regular court day. This practice falls heaviest on persons who may be unable to pay the fee but are entitled to release. The Justices of the Superior Court and the Judges of the District Court recommend that this problem be ameliorated by enactment of legislation under which justices of the peace who conduct special bail hearings will be compensated entirely by the State on a fee basis for their services. Adoption of this type of legislation will bolster the policy of the Rhode Island Constitution and these rules that defendants receive early consideration for release on bail.
The final portion of this sentence also provides that if a defendant has been arrested pursuant to a warrant which has the amount of bail pre-indorsed upon it pursuant to Rule 4(b)(1), he is entitled to be taken before any officer authorized to accept bail, including bail commissioners and justices of the peace. See G.L. 1956 (1969 Reenactment), §§ 12-10-2 and 12-13-4 (Supp.1970).
The last two sentences of subdivision (a) are designed to streamline the procedure for affording a bail hearing to a person charged with an offense which by statute is bailable only by a justice of the Supreme or Superior Court. G.L. 1956 (1969 Reenactment), § 12-13-5. At present, a person who is held by the District Court pursuant to a complaint charging treason, murder, robbery, rape, arson, or burglary must institute a habeas corpus proceeding in the Superior Court in order to receive a bail hearing. This procedure is cumbersome and results in unnecessary delay. Under the provisions of Rule 5(a) the judge of the District Court before whom is brought a defendant charged with one of these offenses will enter an order which will assure that the defendant will be brought before a justice of the Superior Court within forty-eight hours, not counting Saturdays, Sundays and holidays. Whenever possible, the defendant should be brought before the Superior Court as quickly as is practicable. The maximum period of forty-eight hours is intended to cover those situations where a defendant who is bound over in an outlying county is to be brought before a Superior Court justice in Providence; in that situation extra time is required for the papers in the case to reach the court in Providence.
This procedure is intended to obviate entirely the use of habeas corpus proceedings in order to obtain a bail hearing in cases that fall within G.L. 1956 (1969 Reenactment), § 12-13-5. The rule is not intended in any way to modify the jurisdiction of the Superior Court to issue writs of habeas corpus. See G.L. 1956 (1969 Reenactment), § 8-2-16.
Subdivision (b) is essentially the same as the federal rule. There are no specific statutory provisions in Rhode Island directing a judge to make the statements required under this provision. Moreover, although a felony defendant who is indigent or otherwise unable to obtain legal assistance has a constitutional right to appointment of counsel at his initial appearance (White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)), existing Rhode Island law does not expressly provide for appointment of the Public Defender at the District Court level. See G.L. 1956 (1969 Reenactment), § 12-15-3. A procedure has been developed, however, for appointment of counsel in the District Court in proceedings involving felonies.
Subdivision (c) is essentially the same as the federal rule and accords generally with existing Rhode Island requirements governing preliminary proceedings in the District Court. See G.L. 1956 (1969 Reenactment), §§ 12-10-4, 12-10-5, 12-10-10, 12-10-11; §§ 12-10-6 through 12-10-9 (Supp.1970).
1973 Notes
The rule has been amended to bring it into conformity with G.L. 1956, § 12-13-1.1 (1969 Reenactment) which was adopted in 1972 after the promulgation of the District Court Rules of Criminal Procedure. Prior to the adoption of § 12-13-1.1 only justices of the Supreme and Superior Courts could bail persons charged with the offenses enumerated in G.L. 1956, § 12-13-5 (1969 Reenactment). Thus, it was necessary at the time the Criminal Rules were adopted to provide a procedure for expeditiously bringing all defendants charged with one of these offenses before the Superior Court. Under § 12-13-1.1 judges of the District Court may now bail these defendants, provided a sufficient record of the proceeding is made for purposes of review. The amendment to Rule 5 brings the District Court and the Superior Court Rules of Criminal Procedure into conformity with the General Laws.