Criminal Law

Initial Appearance in Court after an Arrest

By Janet Portman, Attorney
When people are arrested for allegedly committing crimes, they must be taken before a judge relatively quickly to learn of the charges against them, their constitutional rights, any bail options, and other matters.

When people are arrested for allegedly committing a crime, the police will take them to the local jail. Jail personnel will confiscate and store the person’s belongings, such as wallets, keys, and phones; and take fingerprints and photographs. Arrestees are placed in a cell, where they will remain until a lawyer visits or they are called to court for their first appearance before a judge. In some states, this appearance is called an “arraignment.” At this hearing, arrestees learn of the charges that have been filed against them, among other things.

Some arrestees are able to arrange for bail before their initial appearance (the bail amount is based on the charges noted on the police report). When an arrestee “bails out,” the arrestee or a third party pays or pledges to pay a set amount of money to allow the person’s release. The arrestee must return for the initial appearance (and all subsequent appearances).

Purpose of Initial Appearance

The initial appearance serves two purposes. The first is to prevent the police from holding arrestees too long before informing them of the prosecutor’s charges and their constitutional rights. Some states specify the time within which an initial appearance must be held; others simply require “within a reasonable time.” Along with hearing of the charges, defendants may enter a plea, learn of their right to counsel and respond to the judge’s questions as to whether they will hire counsel (or need the public defender), and make a pitch for a lower bail. The judge may also set dates for further appearances, and if considering bail (or release on the defendant’s “own recognizance”), set conditions for release.

In some situations, the initial appearance or arraignment is combined with a hearing called a “probable cause” hearing, held when the arrest was accomplished without a warrant (a warrant for an arrest must, by definition, be supported by probable cause). Here, the court determines whether there is sufficient evidence to hold the arrestee. If the judge decides that there’s not enough evidence to reasonably suspect that a crime was committed, and this arrestee was responsible, the judge will dismiss the case. Determining whether probable cause supports an arrestee’s charges is the second reason for an initial appearance in court.

Unreasonable Delays and Confessions

When arraignments are combined with initial appearances, the hearing must be held “as soon as is reasonably feasible, but in no event later than 48 hours after arrest.” (Weekends are included within those 48 hours.) Under federal law, if the hearing is held later than 48 hours post-arrest, and the delay was not “reasonable,” confessions by the defendant should be suppressed. The government must convince the judge that an emergency caused the delay (inability to find an available judge on a Friday afternoon would not normally constitute an emergency). In practice, however, defendants prevail only when they’re able to link the delay to their conviction, as when, for example, critical evidence is lost between arrest and hearing and would have been secured but for the defendant’s tardy day in court.

Despite the federal “rule” of 48 hours, state procedures regularly provide for bringing arrestees before the court within a 72-hour window.

Subsequent Arraignments

Sometimes prosecutors add or drop charges as the case progresses and they gather more evidence and information. When charges are added, defendants are entitled to a new arraignment. Or, after a defendant has been arraigned on the prosecutor’s filed “complaint,” the prosecutor may bring the case before the grand jury, which might issue an “information.” The defendant will be entitled to a subsequent arraignment on this new charging document.

Questions for Your Attorney

  • What are the advantages of having a lawyer at the initial appearance?
  • How long can the time period be between the arrest and the initial appearance? Will I be released from custody if the time is unreasonable?
  • Can I argue at the initial appearance that my warrantless arrest was illegal? Can I bring in witnesses to testify in favor of me?
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