Rule 5. Proceedings Before the Judicial Officer

(a) Appearance Before Judicial Officer After Arrest.

(1) Except when the person arrested is issued a citation

for a class C felony, misdemeanor, or a violation and

immediately thereafter released, the arrested person shall

appear before a judicial officer without unnecessary delay and

in any event within 24 hours after arrest, absent compelling

circumstances, including weekend days and holidays.

(2) If

(A) the judicial officer commits the arrested person to jail

for a purpose other than to serve a sentence, and

(B) the jail is situated in a different community from the

place where the judicial officer committed the arrested person

to jail, and

(C) the arrested person is not represented by counsel, and

(D) the arrested person has not previously had a bail

review, and

(E) the arrested person has no date, time and place

established for his or her next court appearance,

then the arrested person shall appear before a judicial officer

the next business day

(i) in order for bail to be reviewed, and

(ii) in order to determine if the person is represented by

counsel, and

(iii) in order for counsel to be appointed, if appropriate.

(3) The responsibility for ensuring that the arrested

person appears before a judicial officer as specified in

paragraphs (1) and (2) of this subsection shall be borne equally

by

(A) municipal

police

officers

and

municipal

jail

personnel, and by

(B) state troopers, state jail personnel, and all other peace

officers.

No distinction shall be drawn between cases in which arrest

was made pursuant to a warrant and cases in which arrest was

made without a warrant.

(4) Whenever the person arrested on a warrant appears

before a judicial officer other than the one who issued the

warrant, the complaint and any other statement or deposition

on which the warrant was granted must be furnished to the

defendant and must be communicated to the judicial officer

before whom the person arrested appears.

rrant and cases in which arrest was

made without a warrant.

(4) Whenever the person arrested on a warrant appears

before a judicial officer other than the one who issued the

warrant, the complaint and any other statement or deposition

on which the warrant was granted must be furnished to the

defendant and must be communicated to the judicial officer

before whom the person arrested appears.

(5) Whenever a person arrested without a warrant

appears before a judicial officer, a complaint shall be filed

forthwith.

(6) Judicial officers and jail facilities shall be available at

all times to receive bail, and each judicial officer individually

shall have authority to delegate this duty to the person

admitting the defendant to jail, or to such other person as shall

in the determination of a judicial officer be qualified for this

purpose.

(b) Rights of Prisoner to Communicate with Attorney

and Other Person. Immediately after arrest, the prisoner shall

have the right forthwith to telephone or otherwise to

communicate with both an attorney and any relative or friend.

Any attorney at law entitled to practice in the courts of Alaska,

at the request of either the prisoner or any relative or friend of

the prisoner, shall have the right forthwith to visit the prisoner

in private. This subsection does not provide a prisoner with the

right to initiate communication or attempt to initiate

communication under circumstances proscribed under AS

11.56.755.

(c) Misdemeanor

Arraignment

or

Felony

First

Appearance. The judicial officer

(1) shall inform the defendant of the complaint and of

any affidavit filed therewith, and

(2) shall require that a copy of the complaint and of any

affidavit filed therewith be delivered to the defendant if this

has not already been done, and

(3) shall inform the defendant

(A) of the right to retain counsel, and

(B) of the right to request the appointment of counsel at

public expense if the defendant is financially unable to employ

counsel and could

idavit filed therewith, and

(2) shall require that a copy of the complaint and of any

affidavit filed therewith be delivered to the defendant if this

has not already been done, and

(3) shall inform the defendant

(A) of the right to retain counsel, and

(B) of the right to request the appointment of counsel at

public expense if the defendant is financially unable to employ

counsel and could

(i) be sentenced to jail or

(ii) suffer the loss of a valuable license, or

(iii) suffer a fine sufficiently severe to indicate

criminality; and

(C) of the right to be admitted to bail.

(4) shall inform the defendant that the defendant is not

required to make a statement and that any statement may be

used against the defendant, and

(5) shall allow the defendant reasonable time and

opportunity to consult counsel and shall admit the defendant to

bail as provided by law and by these rules.

(d) Initial Determination of Probable Cause at

Arraignment or Felony First Appearance.

(1) If the defendant was arrested without a warrant, the

judicial officer at the first appearance shall determine whether

the arrest was made with probable cause to believe that an

offense had been committed and that the defendant had

committed it. This determination shall be made from the

complaint, from an affidavit or affidavits filed with the

complaint, or from an oral statement under oath of the

arresting officer or other person which is recorded by the

judicial officer. The determination shall be noted in the file.

(2) If the defendant was arrested on a warrant for a

failure to appear at a prior proceeding, the judicial officer shall

determine from the file whether the defendant’s initial arrest

was pursuant to a warrant and, if not, whether at a prior

proceeding the court made an initial determination of probable

cause as required by paragraph (d)(1). If there has been no

judicial determination of probable cause, the judicial officer

shall proceed as under paragraph (d)(1).

Rule 5.1

ceeding, the judicial officer shall

determine from the file whether the defendant’s initial arrest

was pursuant to a warrant and, if not, whether at a prior

proceeding the court made an initial determination of probable

cause as required by paragraph (d)(1). If there has been no

judicial determination of probable cause, the judicial officer

shall proceed as under paragraph (d)(1).

Rule 5.1

(3) If probable cause is not shown, the judicial officer

shall discharge the defendant.

(e) Felonies—Other

Requirements

at

First

Appearance.

(1) If the charge against the defendant is a felony, the

defendant shall not be called upon to plead.

(2) The judicial officer shall inform the defendant of the

right to a preliminary examination. A defendant is entitled to a

preliminary examination if the defendant is charged with a

felony for which the defendant has not been indicted, unless

(A) the defendant waives the preliminary examination, or

(B) an information has been filed against the defendant

with the defendant’s consent in the superior court.

(3) If the defendant after having had the opportunity to

consult with counsel waives preliminary examination, the

judicial officer shall forthwith hold the defendant to answer in

the superior court.

(4) If the defendant does not waive preliminary

examination, the judicial officer shall schedule a preliminary

examination. Such examination shall be held within a

reasonable time, but in no event later than

(A) 10 days following the initial appearance, if the

defendant is in custody, or

(B) 20 days following the initial appearance, if the

defendant is not in custody.

With the consent of the defendant and upon a showing of

good cause, taking into account the public interest in prompt

disposition of criminal cases, the judicial officer may extend

the time limits specified in this subsection one or more times

ollowing the initial appearance, if the

defendant is in custody, or

(B) 20 days following the initial appearance, if the

defendant is not in custody.

With the consent of the defendant and upon a showing of

good cause, taking into account the public interest in prompt

disposition of criminal cases, the judicial officer may extend

the time limits specified in this subsection one or more times.

In the absence of consent by the defendant, the judicial officer

may extend these time limits only upon a showing that

extraordinary

circumstances

exist

and

that

delay

is

indispensable to the interest of justice.

(f) Misdemeanors—Other

Requirements

at

Arraignment.

(1) The judicial officer shall ask the defendant to enter a

plea pursuant to Criminal Rule 11.

(2) If the defendant pleads not guilty, the judicial officer

shall fix a date for trial at such time as will afford the

defendant a reasonable opportunity to prepare.

(3) The judicial officer shall inform the defendant that

the case may not be tried before a magistrate judge without the

defendant’s written consent.

(4) The judicial officer shall inform the defendant that

the defendant may peremptorily disqualify the judicial officer

to whom the case is assigned pursuant to AS 22.20.022.

(g) Video or Telephonic Appearance. The appearances

referenced in this rule may be

(1) by court-approved video link under Criminal Rule

38.2; or

(2) by telephone if

(A) the proceeding is held on a weekend day, a holiday,

or otherwise outside the court’s regular business hours; or

(B) the proceeding is held during the court’s regular

business hours, but there is no judicial officer available where

the defendant is located.

Note to SCO 1339:

Criminal Rule 5(b) was amended by

§ 17 ch. 86 SLA 1998 to make it clear that the rule does not

give a prisoner the right to contact a victim or witness in

violation of AS 11.56.755. Section 1 of this order is adopted

for the sole reason that the legislature has mandated the

amendment

business hours, but there is no judicial officer available where

the defendant is located.

Note to SCO 1339:

Criminal Rule 5(b) was amended by

§ 17 ch. 86 SLA 1998 to make it clear that the rule does not

give a prisoner the right to contact a victim or witness in

violation of AS 11.56.755. Section 1 of this order is adopted

for the sole reason that the legislature has mandated the

amendment.

Note: The Alaska Legislature amended Criminal Rule 5(a) to

change the time within which an arrested person must be

brought before a judicial officer for a first appearance from 24

hours to 48 hours. Ch. 19, §§ 23 and 24, SLA 2010 (HB 324)

(eff. July 1, 2010). The changes to Criminal Rule 5 are adopted

for the sole reason that the legislature has mandated the

amendments. That legislative rule change creates an apparent

conflict with AS 12.25.150(a), which provides that an arrested

person must be taken before a judge or magistrate “in any

event within 24 hours after arrest.”

Note: Chapter 20, section 25, SLA 2011 (HB 127), effective

July 1, 2011, amended Criminal Rule 5(a)(1) relating to time

for a first appearance. The changes to Criminal Rule 5(a)(1)

are adopted for the sole reason that the legislature has

mandated the amendments.

Cross References

(a) CROSS REFERENCE: AS 12.25.150

(b) CROSS REFERENCE: AS 12.25.150

(c) CROSS REFERENCE: AS 12.30.010