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Appearance - General Appearance, Special Appearance, Federal Rules, Limited Appearance, Withdrawal, Delay Or Failure To Appear

defendant court party process

A coming into court by a party to a suit, either in person or through an attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits to the jurisdiction of the court. The voluntary submission to a court's jurisdiction.

In a criminal prosecution, an appearance is the initial court proceeding in which a defendant is first brought before a judge. The conduct of an appearance is governed by state and federal rules of CRIMINAL PROCEDURE. The rules vary from state to state, but they are generally consistent. During an appearance, the judge advises the defendant of the charges and of the defendant's rights, considers bail or other conditions of release, and schedules a PRELIMINARY HEARING. If the crime charged is a misdemeanor, the defendant may sometimes, depending on the local rules of court, enter a plea of guilty or not guilty at the initial appearance; if the crime is a felony, the defendant usually enters the plea at a later court proceeding. A criminal defendant may have an attorney present and may confer with the attorney during the appearance.

In some situations, a defendant may not need to appear in court in person and may even make an appearance by mail. For example, when individuals receive traffic tickets they may choose to send in a check for the amount of the fine.

Many state statutes permit appearances to be made by two-way, closed-circuit television. For instance, North Carolina's rule on video appearances reads:

A first appearance in a noncapital case may be conducted by an audio and video transmission between the judge and defendant in which the parties can see and hear each other. If the defendant has counsel, the defendant shall be allowed to communicate fully and confidentially with his attorney during the proceeding (N.C. Gen. Stat. § 15A-601(a1)[1994]).

An appearance is also a coming into court as a party to a civil lawsuit. Although an appearance can be made by either the plaintiff (the one who has sued) or the defendant (the one being sued), the term most often refers to the action of the defendant.

The subject of appearance is closely related to the subject of PERSONAL JURISDICTION, which is the court's authority over an individual party. An appearance is some OVERT ACT by which the defendant comes before the court to either submit to or challenge the court's jurisdiction.

Any party can appear either in person or through an attorney or a duly authorized representative; the party need not be physically present. In most instances, an attorney makes the appearance. An appearance can also be made by filing a notice of appearance with the clerk of the court and the plaintiff, which states that the defendant will either submit to the authority of the court or challenge its jurisdiction. In a lawsuit involving multiple defendants, an appearance by one is not an appearance for the others. Valid SERVICE OF PROCESS is not required before an appearance can be made.

Historically, appearances have been classified with a variety of names indicating their manner or significance. A compulsory appearance is compelled by process served on the party. A conditional appearance is coupled with conditions as to its becoming or being taken as a general appearance (defined later in this article). A corporal appearance indicates that the person is physically present in court. A de bene esse (Latin, "of well being," sufficient for the present) appearance is provisional and will remain good only upon a future contingency. A gratis (Latin, "free" or "freely") appearance is made by a party to the action before the service of any process or legal notice to appear. An optional appearance is entered by a person who is intervening in the action to protect his or her own interests, though not joined as a party. A subsequent appearance is made by a defendant after an appearance has already been entered for him or her by the plaintiff. Finally, a voluntary appearance is entered by a party's own will or consent, without service of process, although process might be outstanding.

The two most common categories of appearances are general and special.

FURTHER READINGS

Weinreb, Lloyd L. 2001. 2001 Supplement to Criminal Process: Cases, Comments, Questions. Eagan, Minn.: Foundation.

Yeazell, Stephen C. 1998. Federal Rules of Civil Procedures: With Selected Statutes and Cases. Gaithersburg, Md.: Aspen.

CROSS-REFERENCES

Civil Procedure.

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