Rule 37-12. Defendant in Custody; Determination of Probable Cause

(a) If a defendant has been arrested without a warrant and has not been released from custody by the time of the arraignment or is not released at the arraignment pursuant to Section 38-4, the judicial authority shall, unless waived by the defendant, make an independent determination as to whether there is probable cause for believing that the offense charged has been committed by the defendant. Unless such a defendant is released sooner, such probable cause determination shall be made no later than forty-eight hours following the defendant's arrest. Such determination shall be made in a nonadversary proceeding, which may be ex parte based on affidavits. If no such probable cause is found, the judicial authority shall release the defendant from custody.

(b) At the time the judicial authority makes its probable cause determination pursuant to subsection (a), the judicial authority may, on its own motion or upon written request of any party and for good cause shown, order that any affidavits submitted in support of a finding of probable cause, including any police reports, be sealed from public inspection or that disclosure be limited under such terms and conditions as it finds reasonable, subject to the further order of any judicial authority thereafter having jurisdiction of the matter. If such a request has been granted, the moving party may have up to seven days to make a recommendation as to the details of the sealing order. If no such recommendation is made within that time period, the supporting affidavits shall be made public. No such order shall limit their disclosure to the attorney for the accused, but the judicial authority may place reasonable restrictions on the further disclosure of the contents of the affidavits by the attorney for the accused and the prosecuting authority.

(c) Any order sealing such affidavits from public inspection or limiting their disclosure shall be for a specific period of time, not to exceed two weeks from the date of the court's probable cause determination, and within that time period the party who obtained the order may, by written motion, seek an extension of the period. The original order of the court sealing such affidavits or limiting their disclosure shall remain in effect until the court issues an order on the motion. Affidavits which are the subject of such an order shall remain in the custody of the clerk's office but shall be kept in a secure location apart from the remainder of the file as long as the order is in effect.

(d) Unless the judicial authority entered an order limiting disclosure of the affidavits submitted to the judicial authority in support of a finding of probable cause, whether or not probable cause has been found, all such affidavits, including any police reports, shall be made part of the court file and be open to public inspection and copying, and the clerk shall provide copies to any person upon receipt of any applicable fee. CHAPTER 38 PRETRIAL RELEASE

Committee Notes

(P.B. 1978-1997, Sec. 650.) (Amended June 29, 2007, to