A magistrate is a judicial officer who makes one of the most important decisions in any criminal case: whether there is probable cause to issue an arrest warrant.
If you are arrested, the magistrate is also the most important person after the initial contact with police because the magistrate makes the first bond determination. Your conduct can and will dictate whether the magistrate will give you a bond without needing to schedule a hearing in front of the judge. Clerks offices have varying policies on when defense counsel can set at a bond hearing and if the docket is already full, it can sometimes take weeks to get into court for a bond.
When you are building your defense, time is of the essence and the more time you spend out of custody before your trial will usually put you in the best position to assist your lawyer in fighting your case in court. Think about the number of times key witnesses who live in your neighborhood or are part of your social circles “disappear” even though they may be willing to testify on your behalf? Wouldn’t you like the opportunity to identify them and preserve that information for your attorney before the police talk to them?
My first job out of law school was working as a magistrate so here are 10 Dos and Don’ts everyone should follow:
1. DO remember that any statements you make to the magistrate are under oath.
I have seen clients hurt down the road in court because, in the heat of the moment, they told the magistrate one thing and later told the judge another. Magistrates also make it a point to write down positive comments when people treat them well.
2. DO remember that the bail determination hearing paperwork will eventually get to the judge.
Anything you tell the magistrate is liable to be written down and end up in front of the judge along with your warrants and booking information. In Spanish, one of the translations of magistrate is “judge of the first instance” which is important to remember: If you wouldn’t say it to the judge, don’t say it to the magistrate.
3. DON’T overshare.
For example, if you are charged with a misdemeanor offense such as disorderly conduct and the magistrate asks you where you work, “I don’t have a job but I sell drugs” is obviously a bad answer.
4. DO remember you have the right to remain silent.
Sometimes a magistrate will advise you of this right. When in doubt, politely decline to answer the question by invoking your constitutional rights.
5. DON’T forget that anything you say in front of the magistrate can and will be used against you.
If you apologize to the magistrate, make admissions that you committed the crime, or curse at the magistrate, assume the prosecutor and the judge will hear about it later when they read your paperwork. Steer clear of “And I’d do it again!”
6. DON’T dig yourself into a deeper hole before your attorney can start digging you out.
“Yeah, I did it but it was self-defense,” will not help you at this stage of the case. You should be aware that magistrates are not supposed to consider defenses in issuing warrants – just probable cause. Remember: the magistrate was hired to be a neutral, judicial officer. The magistrate is not your friend or advocate. Your advocate will be your attorney in court.
7. DO be respectful and courteous.
Remember: the police officer arrested you, not the magistrate and the magistrate is the make or break in whether you have to spend the night in jail. “Don’t you know who I am?” is never a good choice.
8. DO answer truthfully and completely but keep in mind Number 3.
The magistrate is making a determination of whether you are a danger to fail to appear in court and whether you are a danger to the community or the alleged victim in the case. The fact that you have consistently been working for the same employer or will be returning to classes at college if you are released on bond are important factors. You should be sure the magistrate knows this. But again, if you are unsure if what you have to say is appropriate, keep it to yourself.
9. DON’T argue.
Don’t argue with the police officer or the magistrate about anything. In the worst case scenario, you will be held without bail and see the judge for arraignment on the next business when the court is open. If you disagree with the magistrate’s decision regarding your charge(s) or decision to deny your bond, there is nothing you can do to challenge it in the moment. Try to remain as calm as possible and wait for the judge.
10. DO remember that the magistrate’s office is not the appropriate place to air your grievances.
If you think the police officer violated your rights or mistreated you, the best person to address your complaints with is your attorney.
While there are other factors that dictate whether you receive a bond from the magistrate, stay calm and in control of what you say and do – give yourself an advantage. You should also give yourself the additional advantage of hiring local trial counsel. Call LeCruise Law.