By Eric Krebs
Over 60 years since Gideon v. Wainright recognized that indigent defendants in state court have a right to the assistance of counsel, defendants in many states still begin the trial process without one.
An individual’s First Appearance before a court in a criminal case—also often called a “bond hearing” or a “bail hearing”—concerns whether the accused will remain in detention or be released. The outcome of the First Appearance has significant impacts on the defendant’s freedom and the costs that a criminal trial can bear on the defendant’s life, before it even begins.
In this episode of Proof over Precedent, Professor James Greiner sits down with Georges Naufal and Bethany Patterson, two A2J Lab partner researchers from the Public Policy Research Institute at Texas A&M University, and the A2J Lab’s own Renee Danser to discuss what the Access to Justice Lab found when they investigated: what happens if defendants do have counsel at First Appearances?
The First Appearance: A Critical but Uncertain Stage
After someone is arrested, they’re booked, fingerprinted, and jailed. If they can’t immediately pay bail—which is true for most—they must wait until they see a judge. That moment is called the first appearance (or “magistration” in Texas).
First appearances are brief, often just a few minutes per person, and they can determine whether someone returns home or stays behind bars for weeks. “During the time of the study, the magistrate judge in Texas had only access to the probable cause or the police report,” says Naufal. “That’s the only piece of information they had. They didn’t have access to criminal history, to information about the defendant, whether they’re from the community, whether they have a job or not, and so on.”
Yet in much of the U.S., defendants don’t have a lawyer at that hearing. Despite decades of first appearance proceedings, the U.S. Supreme Court has never ruled on whether this stage is “critical” enough to trigger the constitutional right to counsel.
A Field Test in Two Texas Counties
What would providing counsel at first appearance (CAFA) do for defendants and the justice system alike?
To fill that evidence gap, the A2J Lab partnered with researchers at Texas A&M’s Public Policy Research Institute (PPRI) to run one of the first randomized controlled trials (RCTs) on the impact of CAFA.
The study took place in Hays County (outside Austin, TX) and Potter County (home to Amarillo, TX). Before the experiment, neither county provided public defenders at first appearance. Judges conducted brief hearings, often via video, without prosecutors present. Defendants spoke for themselves.
Over a yearlong period, researchers randomized which days would have defense lawyers present. On “CAFA days,” every indigent defendant received representation; on others, business continued as usual.
Randomization helps researchers isolate cause and effect. By assigning CAFA to random days, the team could compare outcomes — such as bail amounts and pretrial detention — between statistically similar groups. Any consistent differences could then be attributed to the presence of counsel, not to who happened to be arrested on a given day.
Gathering the Evidence
Collecting the data was no small feat. Bethany Patterson, PPRI’s data specialist, described merging thousands of records from jail booking sheets, bond forms, and court files. Each dataset had its own ID systems and formats. “It actually turns out to be immensely complicated to merge data from different sources that aren’t designed to talk to each other and don’t interact with each other,” said Greiner. Once the data were ready, the team ran both simple comparisons and multivariate statistical models to ensure results were robust.
The Results
A2J’s field tests produced modest but statistically significant results that indicate both the impact of CAFA and its shortcomings.
In Hays County, defense attorneys met with defendants for an average of 8.6 minutes, with about 8% of defendants refusing counsel. The presence of defense counsel at magistration had several measurable effects: it lowered average bond amounts from roughly $15,000 to $12,500, increased the likelihood of a personal recognizance (PR) bond by 19%, raised the likelihood of bond conditions being imposed by 44%, and increased requests for court-appointed counsel by 21%. However, despite these shifts in magistrates’ decisions, the presence of counsel did not affect the number of jail days served pretrial, the overall bond type across booking events, mental health evaluations ordered, case processing times, case outcomes, recidivism, or failure to appear rates. The average cost per represented defendant was $81.66, and since jail days did not decrease, there were no measurable cost savings for the county.
In Potter County, defense attorneys spent slightly more time with defendants—about 9.5 minutes on average—and around 10% of defendants declined representation. Defense counsel’s presence reduced average bond amounts from about $11,400 to $10,700, increased the likelihood of PR bonds by 27%, and raised the rate of court-appointed counsel requests by 5%. Unlike in Hays County, representation in Potter County was associated with a measurable reduction in jail stays—by an average of 5.6 days per defendant. With an average cost of $32.18 per represented defendant and estimated savings of $390.54 per case, Potter County could expect roughly $1.1 million in annual savings if defense counsel were present at all magistration hearings. Potter County used the study as a springboard to create a Public Defender Office, which now represents all defendants at first appearance.
Beyond bail and release timing, in both counties the study found no significant differences in longer-term outcomes like rearrest rates, failure to appear, or case disposition. That might sound disappointing, but it’s consistent with expectations. As Naufal noted, “An intervention that happened for about 10 minutes may not really be expected to have an impact six or eight months down the road for a disposition type or sentencing.”
Together, these results illustrate that jurisdictions that consider providing defense counsel at magistration should anticipate hearings to take longer when attorneys are present. To implement such a program effectively, jurisdictions should ensure attorneys are properly trained on magistration procedures, decide whether participation will occur in person or virtually, and plan for the necessary resources, such as physical space, equipment, access to client information, and coordination for moving defendants to meet with counsel. Additionally, they should establish a flexible scheduling system that allows attorneys to manage and update their availability and arrange coverage as needed.
Lessons Beyond the Numbers
The findings offer both hope and humility. Counsel at first appearance can improve fairness — but it’s not a silver bullet.
For one, adding defense lawyers can change the courtroom dynamic. In Potter County, prosecutors started showing up on CAFA days, when they hadn’t done so previously. “Be careful what you wish for,” Greiner observed. What began as a one-lawyer experiment quickly became a two-lawyer hearing. That shift could alter the very system reformers aim to study.
Another takeaway: context matters. Counties differ in resources, legal culture, and judicial habits. What works in Amarillo may not in San Marcos, and vice versa. The only way to know is to build more evidence across jurisdictions.
The Human Side of System Change
For lawyer and researcher Renee Danser, the study underscored how difficult it is to change decision-making in institutions built on tradition and hierarchy. “Judges are getting a lot of information that they need to weigh in a very short period of time… What we’re really trying to do here is affect change in decision making. And that’s really hard,” she said. “They hold a lot of weight with their own professional judgment, as does the community… Trying to change that professional judgment may be harder than we think.”
Every day in America, thousands of people appear before judges within 48 hours of arrest, often alone, often facing choices that can upend their lives. A short hearing can determine whether they keep their job, their housing, or even custody of their kids. The CAFA study suggests that having a lawyer in that room—even for just a few minutes—can make those decisions fairer and more informed.
But it also reminds us that justice reform comes with few easy fixes. Legal systems are ecosystems, where new interventions ripple in unpredictable ways. Building an evidence base takes patience, partnership, and humility.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.