A magistrate is a sworn judicial officer who makes one of the most important decisions in a criminal case: whether there is probable cause to issue an arrest warrant against a person. In most cases, after a person has been served with a warrant, a magistrate will be the first judicial actor who can determine whether that individual will receive a bond on the criminal charge.
There are many important do’s and don’ts for interacting with magistrates that can have a significant impact on your criminal case before you even get to court.
Remember that statements you make to the magistrate are under oath. Clients can be hurt down the road because they say things to the magistrate in the heat of the moment after being arrested but say something else to the judge later in the case. For example, if you tell the magistrate you have been unemployed for 6 months during the initial bond hearing but present documentation to the judge from an employer you claim to have had for one year, this can put your honesty into question with the court and be problematic.
Keep in mind that the bail determination paperwork will eventually get to the judge and is often one of the first documents a judge reviews in court even before you have an attorney. 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. One of the Spanish translations of magistrate is “judge of the first instance” which is important to remember: If you would not say it to the judge, do not say it to the magistrate.
Remember that you have the right to remain silent. However, sometimes a magistrate will not advise you of this right. Anything you say in front of the magistrate can and will be used against you in court. For example, if you apologize to the magistrate or make admissions that you committed the crime, you should assume the prosecutor and the judge will read these details later on your paperwork. Be sure that you know 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.
Although it will be a very stressful experience, it is vital to remember that the police officer arrested you and the magistrate did not. Magistrates will be the make or break as to whether you will have to spend the night in jail. Try not to argue with the police officer or the magistrate. If you think the police officer violated your rights or treated you unfairly, the best person to address these complaints with is your attorney or with an internal affairs report instead of in the moment at the magistrate’s office.
After you are released on bond by the magistrate (or if you need an attorney to schedule a bond hearing with the court), be sure to consult with an experienced Hampton Roads defense attorney.