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A criminal defendant may encounter three types of pretrial proceedings: (1) the probable cause, or Gerstein, hearing; (2) the initial appearance; and (3) the preliminary examination. These hearings perform separate functions and are compelled by different mandates, although they may be combined.744 The Gerstein hearing is a judicially-created, permissive proceeding for reviewing the police determination that probable cause exists to detain an arrestee.745 In contrast, the Federal Rules of Criminal Procedure require both the initial appearance, held to advise an arrestee of her rights and the charges against her,746 and the preliminary examination, held to determine whether probable cause exists to bind the arrestee for trial.747
Gerstein Hearings. In Gerstein v. Pugh,748 the Supreme Court held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest."749 The accused is entitled to a Gerstein hearing prior to being detained without bond or otherwise experiencing a significant restraint of liberty unless the arrest is supported by a warrant750 or a grand jury indictment.751 Only "a brief period of detention to take the administrative steps incident to arrest" may precede the hearing.752 In County of Riverside v. McLaughlin,753 the Supreme Court held that jurisdictions providing a probable cause determination within forty-eight hours of arrest are immune from systemic challenges of undue delay;754 however, when an individual is detained for more than forty-eight hours without a Gerstein hearing, the delay is presumed excessive and may only be justified by "a bona fide emergency or other extraordinary circumstance."755
The sole issue at a Gerstein hearing is whether a prudent person would believe that the suspect committed an offense.756 A judicial officer may conduct this probable cause hearing in a nonadversarial fashion757 without counsel758 or the suspect present.759 Hearsay and written testimony are admissible.760 Although a suspect can challenge the existence of probable cause for arrest and detention prior to trial,761 a subsequent conviction will not be vacated solely on the ground that the defendant was improperly detained.762
Initial Appearances. Rule 5 of the Federal Rules of Criminal Procedure requires the arresting officer to bring the accused before the nearest available federal magistrate judge763 without unnecessary delay.764 Rule 5(c) establishes the procedures for an initial appearance.765 The magistrate judge must...