Changes in North Carolina’s First Appearance Process, Effective for Criminal Processes Served on or after December 1, 2021

On September 2, 2021, North Carolina Governor Roy Cooper signed Session Law 2021-138 (S300) into law. The law makes wide ranging changes to the state’s criminal law and procedure, including adjustments to satellite-based monitoring based on Grady v. North Carolina, limitations on the enactment of local ordinance crimes, and revised standards for the hiring, certification, and decertification of law enforcement officers. The law has various effective dates, depending on the particular provision. This post will concentrate on changes to first appearance requirements. My colleagues will address other aspects of the changes made by this law in future blog posts.

What is first appearance? In the first appearance, criminal defendants in custody prior to adjudication are taken before a judicial official for review of any bond previously set for them and a determination that detention is warranted before adjudication of their charges. Defendants are also typically advised of rights and informed about court process to follow. First appearance follows arrest and initial appearance, where a magistrate typically sets release conditions. Those conditions, such as bond, affect whether a defendant is detained or released prior to further adjudication. In Part XIV, S.L. 2021-138 makes changes in our first appearance process by amending G.S. 15A-601. These changes are effective for criminal processes served on or after December 1, 2021.

Session Law 2021-138 makes three key changes:

1) It expands first appearance to include defendants charged with misdemeanors who are in custody. Currently, first appearance applies only to criminal defendants with felony charges. G.S. 15A-601(a) is amended to include defendants charged with misdemeanors and held in custody via a magistrate’s order under G.S. 15A-511 or one of the criminal processes charging crimes covered by Article 17 (citation or warrant for arrest).

2) It changes the deadline for first appearance from 96 hours to 72 hours, by amending G.S. 15A-601(c) to state that a “first appearance before a district court judge must be held within 72 hours [now, 96] after the defendant is first taken into custody or at the first regular session of district court in the county, whichever occurs first.”

3) Current law provides that the default starting place for first appearance is a district court judge, and permits the clerk of superior court to conduct a first appearance if a district court judge is not available within the time deadline. S.L. 2021-138 amends GS 15A-601(e) to add magistrates as officials who may conduct first appearance if the clerk is not available. Like the clerk, the magistrate is to conduct a first appearance just as a district court judge would under the law.

Several North Carolina judicial districts have been running pilot projects with first appearance, experimenting with time guidelines shorter than the 96-hour maximum limit of the current statute and with providing first appearances to defendants charged with misdemeanors. See my colleague Jessica Smith’s previous posts on the topic of first appearance for all defendants here and in pretrial release pilot projects here. Other posts are also available by searching this blog site.