If you are arrested for a criminal offense, you cannot be held in jail forever without seeing a judge. The 36 and 48-hour rules protect against such inhumane scenarios. If someone you know has recently been arrested, understanding these time limitation rules and how each county applies them, will help you understand when that person may see a judge or be released.
36-Hour Rule: Appearance Before a Judge
Within 36 hours of arrest, a person must be brought in front of a judge without unnecessary delay. Importantly, the 36 hours does not include the day of arrest, Sundays, or legal holidays. For example, if you are arrested at 11:30 p.m. on a Tuesday, your thirty-six hours will start running at midnight on Wednesday and expire Thursday at noon. If you are arrested on Saturday at 11:30 p.m., the 36 hours will start running at midnight on Monday and expire Tuesday at noon.
What happens if a person is held in jail in violation of the 36-hour rule and you have not seen a judge yet? In felony, gross misdemeanor, and misdemeanor cases (DWI), the person arrested must be released if the 36-hour rule is violated. The court may order an extension of time “for cause” in some cases (See Rule 34.02).
48-Hour Rule: Probable Cause Determination
Within 48-hours of arrest, a judge must make a probable cause determination without unnecessary delay. Unlike the 36-hour rule, the 48 hours starts immediately upon arrest and includes the day of the arrest, Sundays, and legal holidays. If charges are filed within 48 hours, or probable cause for the charge is found during that time period, then the person will remain in custody. However, the 36-hour rule will still apply in that scenario.
In practice, probable cause for continued detention is often found within 48 hours of arrest (also known a PC hold). In that event, the 36-hour rule will then take over. In serious felony cases, prosecutors may request a time extension for cause if they are unable to get charges filed within the applicable time period. Sometimes within 36 or 48 hours of arrest, bail is set either by a judge, the jail, or with help from the defendant’s lawyer.
If you are trying to figure out when will bail get set for someone, the quickest way to find out is to either call a criminal defense lawyer or call the sheriff’s office where the offense occurred. Most criminal defense attorneys worth their salt will have an idea of when bail may get set or at least be able to find out without too much difficulty. Most sheriff’s offices can also be helpful in giving you information about when bail may be set for someone.
The other variables in determining when bail may get set for someone depend on the level of the offense and the jurisdiction where the offense occurred. The vast majority of misdemeanor level offenses, such as 4th Degree DWI, Disorderly Conduct, and Criminal Damage to Property do not require bail in most counties. For those crimes, most officers will give someone a citation and release them after a brief period of time.
A majority of Gross Misdemeanor level offenses will require bail, conditions of release, or both. Examples of Gross Misdemeanors are 2nd and 3rd Degree DWI and aggravated Domestic Assault crimes. In some counties, bail will automatically be set for offenses such as these. In other counties, an on-call judge may be available to request bail being set. Another possibility is that a reviewing judge will examine all the recent in-custody cases and determine on their own whether they should set bail. In a fair number of counties, a judge will not set bail unless and until the person appears in court. Importantly, a person recently arrested cannot be held in jail indefinitely without seeing a judge. The 36- and 48-hour rules require that a person be charged, released, or seen by a judge within a certain period of time.
In the vast majority of felony cases, people will be held until they see a judge at a Bail Hearing to determine whether bail should be imposed. However, the same 36- and 48-hour rules also apply in felony cases. Some jurisdictions will not get a person charged within the required time period. In those situations, the person may still be charged later and may be required to pay bail or abide by conditions of release at their First Appearance.
In Minnesota, a person has a constitutional right to unconditional bail in a criminal case (State v. Pett). This means that if the maximum amount of bail imposed by the court is paid, then the person will just need to appear at all future court appearances and potentially abide by a no contact order – if the case warrants one.
For most misdemeanor offenses, the person arrested will often be released from custody after a few hours. This includes Fourth Degree Misdemeanor DWI, Misdemeanor Theft, Misdemeanor Drug Possession, Disorderly Conduct, and minor traffic offenses. If you are trying to figure out how to get someone out of jail that was arrested for one of these offenses, then you can call the jail, sheriff’s office, or police department where the incident took place (often county jail, county sheriff’s office, or city police department). If you are lucky enough to have someone answer the phone, you can simply ask when they expect the person you are calling about to be released.
On few of those misdemeanor offenses described above, the jail requires a very small amount of bail to be paid before they allow the person to be released. This often has to be paid in an exact amount of cash or certified funds.
Some misdemeanor offenses, such as assault and domestic assault, will most frequently result in a longer custody stay. In those cases, the person arrested will wait to see the judge on the next scheduled court day, or the day after. At that court appearance, the judge will often impose conditions of release on the person arrested, such as a no contact order with the alleged victim among other conditions. Bail is also a possibility in that scenario.
In many Gross Misdemeanor cases, the person arrested will also have to wait and see the judge for conditions and possibly bail to be set. In some Gross Misdemeanor DWI cases, such as 2nd Degree DWI and 3rd Degree DWI, an attorney may be able to get bail set over the weekend or during a non-court day. Depending on the county and its procedures, the attorney may be able to contact a judge to get bail set during those times. In some other counties, a judge will come in and review cases of people who have been recently arrested and determine on their own whether bail will be set. Furthermore, in some counties a conditional release officer will come by and ask the person whether they want to accept conditions of release, such as no-use of alcohol or non-prescribed drugs to get out of jail.
In the overwhelming majority of Felony cases, the person arrested will have to wait to see a judge to find out whether bail will be required or if they will be allowed to be released on their own recognizance and promise to appear at future court hearings. The more serious the felony, the more likely bail will be set along with conditions of release while the court process plays out.
A Morrissey Hearing is another name for a contested probation violation hearing. When a person is placed on probation and allegedly violates the conditions of their probation, they are entitled to have a hearing where the prosecution has to prove by clear and convincing evidence that the conditions of probation were violated.
Before you get to a Morrissey Hearing, there is an initial probation violation hearing often referred to as an admit-deny hearing where you can either admit or deny the allegations. If you admit the allegations, a disposition (or sentence) may be imposed at the same hearing or at a later time. If you deny the allegations, then the court will schedule the Morrissey Hearing. At the Morrissey Hearing, you have the right to present evidence, call witnesses on your behalf, testify, challenge the prosecution’s evidence, and cross examine the prosecution’s witnesses. The Minnesota Rules of Evidence also apply at the hearing.
Because probation violations often have profound consequences, the need to challenge and argue against such violations can be incredibly important. Sometimes, the prosecution will seek to revoke stays of adjudication, stays of imposition, request significant jail time and even prison in some circumstances. Before a violation hearing takes place, there is generally a probation violation report filed with the court. The report will include the allegations of what probationary conditions were violated and a recommendation for the sanction. The prosecution will often support probation’s recommendation, but they are not required to. You, or your attorney, can talk to the prosecution and see if you can negotiate a recommended sentence to the court. Even in that scenario, however, the judge can sentence as they see fit on a probation violation. But the judge is more willing to sentence according to an agreement by both sides.
The term Morrissey Hearing stems from the United Supreme Court case: Morrissey v. Brewer. In that case, the United States Supreme Court decided that the Due Process Clause of the Fourteenth Amendment requires that the State afford an individual some opportunity to be heard prior to revoking their parole. The Court reasoned that “liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.” The United States Supreme Court decided Morrissey in 1972 and has provided individuals with constitutional protections ever since.
In Misdemeanor cases, the Pre-Trial Hearing generally takes place after the arraignment (sometimes referred to as the first appearance). At this hearing, the prosecution usually makes a plea offer for you to consider resolving your case. This plea negotiation can sometimes happen on the day of the Pre-Trial Hearing and sometimes it is made in advance of the Pre-Trial Hearing for your consideration before the hearing even takes place. In either event it is important to consider your options carefully about whether to accept a plea offer or take another course of action, such as challenging your case.
Before you even get to your Pre-Trial Hearing, the discovery in your case should be complete. This means that all the evidence the prosecutor has in your case, such as police reports, audio and video recordings, should be turned over to you or your lawyer. Having this evidence should help you determine whether you should file any motions in your case, such as probable cause challenges, search and seizure issues, or the admissibility of statements.
If you decide to challenge a pre-trial issue, you can ask the court at your pre-trial hearing to schedule a motion hearing. Some courts may call this Motion Hearing an Evidentiary Hearing or a Rasmussen Hearing. If you decide not to challenge a pre-trial issue in your case, then you can either plead guilty based on your plea negotiations with the prosecutor or plead guilty to the judge and allow them to pronounce your sentence. If you neither want to challenge a pre-trial issue, nor do you wish to plead guilty, then you can schedule the next phase of your case, which is usually a trial date. Some courts will schedule a Settlement Conference prior to your trial date.
In some Gross Misdemeanor and Felony cases, depending on your jurisdiction, the court may schedule your Pre-Trial Hearing after your Omnibus Hearing and before your trial date. If the court schedules your case in this manner, then it is usually to give the parties another opportunity to reach a settlement. It also gives the parties another opportunity to hash out any remaining issues in the case leading up to trial, such as scheduling for the trial, potential witnesses, exhibit lists, and any remaining motions. If you have your Pre-Trial Hearing shortly before your trial date in a Felony or Gross Misdemeanor case, then it is incredibly important to know whether you are headed towards settlement or trial, because the opportunities to settle your case are starting to run out. If you know you are set on having a trial, then it is a good idea to know how that trial is going to occur, logistically, and whether you have a preparation plan for it.
A jury trial is the last stage to determine guilt or innocence in a criminal case at the district court level. If all other avenues have been exhausted, such as plea bargaining, pre-trial contested motions, possible pleas to the court, and the defense and prosecution cannot come to an agreement, then you have the right to a trial by jury.
Any charge punishable by possible imprisonment gives you a right to jury trial. Therefore, in misdemeanor, gross misdemeanor, and felony level offenses, you can decide to have a trial by jury. In petty misdemeanor cases, which do not have possible jail time, you only have the right to a Court Trial. That trial is a trial in front of a judge only who will determine your guilt or innocence.
In misdemeanor and gross misdemeanor cases, a jury of six will hear the trial. In felony matters, a jury of twelve will decide the outcome. At the outset of the trial is voir dire, or jury selection. This is a process where the judge, defense attorney, and prosecutor will ask questions of the jury to determine whether any possible jurors have possible biases that would prevent them from trying a case fairly. At the conclusion of voir dire, the defense attorney and the prosecutor will each strike possible jurors from the panel. The defense attorney gets five strikes and the prosecutor gets three. The parties may also challenge a possible juror for cause to get them removed from the panel, which will not count against their strikes.
Once the jury is selected and sworn in to hear the case, the prosecutor will likely make an opening statement followed by the defense. Then, the prosecutor will present its case to the jury with witnesses and evidence to try and persuade the jury that the defendant is guilty of the crime(s) charged beyond a reasonable doubt. The defense attorney may also cross examine each prosecution witness. The rules of evidence will also apply during the trial.
At the conclusion of the prosecution’s case, the defense attorney may call witnesses and present evidence in support of their arguments. Importantly, they do not have to call any witnesses at all. The defendant has the right to remain silent during the entire trial and is not forced to testify on their behalf.
At the conclusion of the defense’s case, the process generally proceeds to closing arguments. This is the time for each side to argue to the jury why they believe you should rule in their favor. The prosecutor will start with its closing argument followed by the defense. At the conclusion of the defense’s closing argument, the prosecutor may make a rebuttal closing argument. At that time, the judge will give the jury any final instructions before they are sent off to deliberate the outcome of the case.
Most importantly, the jury must unanimously find the defendant guilty beyond a reasonable doubt for the defendant to be convicted of the crime(s) charged. If the jury unanimously determines the prosecution did not prove its case beyond a reasonable doubt, then the defendant is found not guilty. If they jury cannot agree unanimously on either outcome, then the jury is hung, and the judge may determine a mistrial or encourage the jurors to keep deliberating. If a mistrial ultimately is the end result, then the prosecution may decide to re-try the case.
A Court Trial, or what is sometimes referred to as a Bench Trial, is a trial in front of a judge. Instead of having a trial by jury, you may choose to have your case decided by a judicial officer. In petty misdemeanor cases and juvenile court matters, you do not have a right to a jury trial and may only have a Court Trial. Importantly, if the juvenile case was designated EJJ (extended juvenile jurisdiction) or certified to adult court, then you can choose a trial by jury. In misdemeanor, gross misdemeanor, and felony cases in adult court, you have the constitutional right to a jury trial. But, in some circumstances, you may end up deciding to have a Court Trial instead.
In general, a trial is the end of your case at the district court level. The conclusion of the trial will determine your fate in the case – guilty or not guilty. When you choose to have a Court Trial instead of a trial by jury, then you are saying you want the judge assigned to your case to determine whether you are guilty or not guilty of the charged offense(s). The same standard of proof – beyond a reasonable doubt – applies to the prosecution. All other trial rights apply as well, such as the right to remain silent, the right to cross examine the prosecution’s witnesses, and the right to call witnesses in your defense. The parties may make opening statements, call witnesses, and make closing arguments. The rules of evidence also apply in the same manner as a jury trial. At the conclusion of some Court Trials, the judge may allow written closing arguments and issue a written decision at a later date.
A common reason people choose to have a Court Trial is because they do not believe they will get a fair jury to hear their case. They may also believe that they have a unique legal issue that is better analyzed by a judge. Furthermore, they may think that they have a very favorable judge in general. Importantly, the defendant holds the power to decide whether to have a Bench Trial or a trial by jury. It is the defendant’s right alone to make that decision. But it is crucial to have many discussions with your lawyer about what type of trial is right for your case. Making that decision is one of the most important choices you will may make in your case. A common reason to decline a Court Trial is that you would rather have more than one person decide your fate of guilty or not guilty. At a Court Trial, the prosecution only needs to persuade one person – the judge. During a jury trial, they have to prove their case to a jury of six or twelve people and they have to unanimously agree that you are guilty or not guilty.
A Settlement Conference is an in-court hearing used to see if the prosecution and defense can reach a settlement prior to a trial taking place. By this point, the court has already conducted your first appearance, pre-trial hearing, and possibly contested hearings challenging the admissibility of evidence in your case. The Settlement Conference is often one of the last stages in your case. It generally occurs within a week of a scheduled trial date; and in some situations, a few weeks in advance of trial. The judge will often want to know whether settlement negotiations have been taking place, what those are, and if the case is likely to settle.
As the defendant in the case, you have the right to know what settlement offers are being made in your case. Your MN criminal attorney should be talking to you about what those are and what options you have, because you alone have the power to resolve your case. It is your decision to make whether to take a plea offer from the prosecution. Your lawyer is there to give you advice and assist you in the decision-making process.
By the time you get to your Settlement Conference there has probably already been a plea offer made in your case. Or, at a minimum, an expectation of what the prosecutor is requesting for an outcome. However, plea offers can change at the Settlement Conference and thereafter. Thus, it is important for you to know what those offers are and whether you desire to accept or reject them. If you ultimately turn down an offer from the prosecution to resolve your case at your Settlement Conference, then your case will proceed to trial.
In adult criminal cases, you have the constitutional right to a jury trial in misdemeanor, gross misdemeanor, and felony cases. It is a jury of six people in misdemeanors and gross misdemeanors, and a jury of twelve people in felony matters. You also have the right to waive your right to a jury trial and have a court trial, or bench trial, where the judge is the sole decision maker in your case. In petty misdemeanor cases, you do not have the right to a jury trial, but you may elect to have a court trial. Regardless of what avenue you choose in your case, make sure your rights are protected and proper procedures are being followed.
Rasmussen Hearings are hearings involving a request by the defense to suppress evidence prior to a trial. To get there, your defense attorney will file a motion asking the court for such relief based on an illegal seizure, illegal search, unlawful confession, or unlawful identification. Some courts may call Rasmussen Hearings Contested Omnibus Hearings, Motion Hearings, or Evidentiary Hearings. But they all generally operate in the same manner – the defense is looking to challenge some legal issue in your case before it proceeds to a court or jury trial.
Rasmussen Hearings derive from State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 553-54, 141 N.W.2d 3, 13 (1965). This case stands for the requirement that the prosecution must give a Rasmussen notice under Minnesota Rule of Criminal Procedure 7.01. This notice must be given to the defense on, or before, the defendant’s Rule 8 Hearing according to the rules, so that the defense can decide whether to demand a Rasmussen Hearing at that time. In practice, however, Rasmussen Hearings are often not demanded until the Omnibus Hearing.
The Rasmussen Notice that the prosecution must give under Rule 7.01 should include evidence obtained from the defendant and of identification procedures of the defendant (i.e. a disclosure of the police reports, audio and video evidence, photographs, and other evidence the prosecution has against the defendant must be turned over to the defense so that an adequate defense can be prepared).
At a Rasmussen Hearing, the prosecutor will often bring the peace officers involved in the case. They will then often have those officers testify and your defense attorney will have the opportunity to cross examine them and call witnesses on your behalf. Often, the judge will take the matter under advisement and issue a written ruling later. In some cases, the judge will decide the motion on the spot after hearing arguments from both sides.
In some cases, the prosecution and defense will agree to the facts of the case through police reports and other evidence and will then simply have a debate on the legal issues either orally or in writing. This is called stipulating to the facts of the case simply for the pre-trial issue that is being challenged. This often occurs when no facts are in dispute, just simply how the law was applied is at issue.
Significantly, if the defense loses the Rasmussen Hearing, then it does not mean the case is over. That does not mean you are automatically guilty. You will still have the right to have a court or jury trial to determine the outcome of your case. Plea negotiations are almost always an option after a Rasmussen Hearing as well. But, if you do win your Rasmussen Hearing, then check with your defense lawyer. This may mean that some or all of your charges will be dismissed, or at a minimum, you will likely be on better footing heading into a trial, which can often mean a better plea offer will be on the table for you to consider. Or, you can proceed to a trial with some of the evidence in your case unavailable to the prosecution.
Prior to your Omnibus Hearing, your attorney may file motions asking for a Contested Omnibus Hearing. Some courts may call it a Motion Hearing, Evidentiary Hearing, or Rasmussen Hearing. Regardless of the moniker, the purpose of such a hearing is to challenge issues in your case prior to a trial taking place. If successful, this can lead to a dismissal of our case or charges within it. It can also trigger suppression of evidence in your case that can lead to better plea negotiations or give you better chances at trial.
One of the most common challenges at a Contested Omnibus Hearing is attacking probable cause. If there is no probable cause for the charge(s) against you, then it results in a dismissal. Probable cause basically means that there is a reasonable probability that you committed the crime. Both in Minnesota and at the federal level, courts will evaluate the facts of your case and the probability that you committed the alleged crime. If you do not challenge probable cause, then the court is virtually always going to find it and state that there is enough evidence for your case to proceed forward.
Another popular motion for a Contested Omnibus Hearing includes challenging search and seizure issues. If you want to challenge why the officer pulled your vehicle over in a DWI case or stopped you on the street, then this is the time to bring a motion. Also, if you believe that law enforcement illegally searched your person, car, or home, then you want to bring a motion challenging the sufficiency of the search under the Fourth Amendment. If you want to challenge the admissibility of statements or confessions, then making a motion for a Contested Omnibus Hearing to get that evidence excluded is something your attorney may do.
Upon challenging these evidentiary issues, the prosecutor will often bring the police officers involved in to testify at the hearing. Your attorney will also have the opportunity to cross examine the prosecution’s witnesses and present other evidence in support of your motion. Some judges will decide the motion at the hearing after hearing arguments from both sides, while other judges will take the matter under advisement and issue a ruling later after allowing both parties a chance to submit written legal arguments. If your judge decides the later method, then the court will notify your attorney when its decision is made with a written order.
Importantly, if you are unsuccessful with an evidentiary motion prior to trial, then this does not mean you have been found guilty or your case is over. The court will schedule another court date, such as a pre-trial hearing, settlement conference, or even trial date. If you do win any contested hearing issues you raised, then check with your attorney to see if that means any of your charges are dismissed or if you are just proceeding in the case on better footing.