People who have been arrested—particularly those who haven’t bailed out of jail or been released on their own recognizance—want to know when they’ll get in front of a judge. They want to know the charges they face, whether they can get out of custody, and whatever else about the criminal process they can glean from that first court appearance.
Many states refer to the first appearance as “arraignment,” while others use terms like “initial appearance.” No matter how they describe it, they all prohibit law enforcement agencies from confining suspects indefinitely, without judicial oversight.
The time within which the initial appearance must take place varies from jurisdiction to jurisdiction—and isn’t always clear. Some state laws specify the timeframe, while others nebulously ban “unnecessary delay” after arrest.
What Happens at “Arraignment”
In both state and federal court, the initial court appearance is typically the point at which the court advises the defendant of the charges and certain constitutional rights, including the right to counsel. The court may also:
- inquire whether the defendant plans to hire an attorney or (if eligible) use the public defender
- take the defendant’s plea (if the court doesn’t defer the entry of plea until a later date, a defendant who doesn't have an attorney present, who hasn't been fully informed of the ramifications of conviction, and who hasn't received any discovery and sentencing assurances from the court or prosecution will typically plead “not guilty” at this point—the plea is subject to later change)
- determine whether to set bail and in what amount, including whether to release the defendant on “OR”
- establish conditions for the defendant’s release pending resolution of the case (such as travel restrictions or a ban on contact with the alleged victim), or
- set dates for further proceedings (such as a date for the parties to report back on plea negotiations or for a preliminary hearing).
Some states combine “probable cause determinations” with the initial court appearance. That’s because, for law enforcement to keep a suspect in custody pursuant to a warrantless arrest, the Fourth Amendment requires a judicial determination of probable cause. (Most arrests are warrantless.) If the court doesn’t find probable cause to believe the defendant committed the crime—a rare occurrence—then it must order the defendant’s release. (County of Riverside v. McLaughlin, 500 U.S. 44 (1991).)
If the government (a county, for example) combines probable cause determinations with initial appearances, it must hold them “as soon as is reasonably feasible, but in no event later than 48 hours after arrest.” (Weekends are included within the 48-hour calculation.) Even a less-than-48-hour delay may be unreasonable—for instance, if officers orchestrated it in order to allow time for the defendant to confess. If authorities miss the 48-hour window, the government has the burden of proving that an emergency caused the delay. (Id.)
In Washington D.C., for example, a suspect arrested without a warrant has the right to an immediate determination of probable cause. By the end of the day after the initial appearance, the prosecution must file a sworn statement describing the basis for the arrest (it usually does so immediately). The court must then “promptly” determine whether there is probable cause to believe that the defendant committed the crime in question; the judge need not hold a hearing for this determination. (D.C. Super. Ct. R. Crim. P. 5(c).)
In practice, government agents have a bit of slack—as long as they make a conscientious effort to get a suspect in front of a judge quickly, they’re probably in the clear. And even an illegal delay in bringing a defendant to court probably won’t invalidate a subsequent conviction unless the delay somehow contributed to it. (Morse v. U.S., 256 F.2d 280 (5th Cir. 1958), United States v. Chavez, 705 F.3d 381 (8th Cir. 2013).)
In a 2009 federal case, for example, FBI agents arrested the defendant for bank robbery pursuant to an arrest warrant early on a Friday morning. (United States v. Harrold, 679 F.Supp.2d 1336 (N.D. Ga. 2009).) The agents began trying to locate a magistrate shortly after the arrest, but couldn’t find one who was free before Monday, which is when they ended up taking the defendant to court. In the meanwhile, the officers interviewed the defendant—during that interview, which was more than 12 hours after the arrest, he gave self-incriminating statements.
The defendant asked the court to suppress his statements because he made them before officers had brought him to a judge. Federal law allows for the suppression of any statements made by a defendant before an initial court appearance if there was unnecessary delay in getting him or her before a judicial officer. (Statements by the suspect within six hours of arrest are presumptively admissible.) But, because the court considered the delay between the defendant’s arrest and first appearance reasonable, it refused to suppress the defendant’s statements. (Id.)
Consult a Lawyer
If you believe law enforcement took too long to bring you to court, consult an experienced criminal defense attorney. That lawyer can advise you of the applicable law in your jurisdiction. Further, your attorney can guide you through the criminal process while protecting your rights.