Arraignment in Virginia

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The first priority for people who have been arrested is learning how quickly they can get out of jail or police custody. In Virginia, there is no hard and fast rule—state law requires that a person be brought in front of a court “without unnecessary delay.”

For more information on arraignment and initial court appearances in general, see Arraignment: Getting to Court.

First Appearance

It makes no difference whether authorities arrest a person with a warrant or without, or for a felony or misdemeanor charge: They must take the suspect to a judge or magistrate as soon as reasonably possible. At the first appearance, a magistrate can decide what bail amount is reasonable and whether to release the suspect on “OR.”

If the police didn’t have a warrant for an arrest, the arresting officer must present testimony to the court about the purported justification for the arrest. This process mimics the steps a police officer would have to take to get an arrest warrant before taking someone into custody. If the court finds insufficient justification (a rare occurrence), it must release the defendant.

How long is reasonable?

Virginia law doesn’t specify how quickly law enforcement must bring an arrested person before a court. The key is whether the police have any justification for delaying the initial appearance.

Questionable consequences

A police officer who doesn’t bring an arrested person to court in a reasonable time has acted outside the law. (McHone v. Com., 190 Va. 435 (1950).) Despite that strong view, Virginia courts treat violations of this rule as procedural errors, so the prosecution generally won’t be affected unless the delay violated a defendant’s constitutional rights or sufficiently compromised the ability to defend the case.

In one case, the police failed to take a murder suspect to court within a reasonable time after arrest and interrogated him during that time. The suspect confessed to the murder during the interrogation. Even though he should have been brought to court instead of being subjected to questioning, the Supreme Court of Virginia allowed his confession to be used as evidence during his trial. (Frye v. Com., 231 Va. 370 (1986).)

Arraignment

Arraignment serves several purposes, including:

  • identifying the defendant or defendants
  • laying out the charges against the defendant (technically, arraignment requires the court to read the specific charges in the complaint, but the defendant can waive that reading), and
  • having the defendant enter a plea to the charges (see How should I plead at arraignment?).

As with first or initial appearances, there is no specific time limit that the courts must observe, so counties are free to set their own schedules. In fact, the court can wait to arraign a defendant until the start of trial. (Carter v. Com., 2 Va. App. 392 (1986).)

A violation of a defendant’s arraignment rights doesn’t automatically mean case dismissal. The court will overturn a conviction only if the violation had a substantially harmful impact on the defendant’s ability to present a defense.

Consult a Lawyer

If you believe the authorities have violated your rights, you should contact an attorney who has experience in your county. That lawyer can advise you of the applicable law and protect your rights.

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