What Is an Arraignment?

A defendant's first appearance in court often happens at a hearing called an arraignment. Some states require arraignments in all felony and misdemeanor cases—basically, any case in which the defendant faces possible incarceration, whether in jail or prison. Some states require arraignments only in felony cases.

What Is an Arraignment?

An arraignment is a court proceeding at which a criminal defendant is formally advised of the criminal charges against him and may be asked to enter a plea to the charges. In many states, the court may also decide at arraignment whether the defendant will be released pending trial.

When Does Arraignment Occur?

Arraignment must occur within a reasonable time after arrest and usually within 48 to 72 hours of an arrest if the suspect is sitting in jail. If the suspect has bailed out or was issued a citation, the arraignment typically occurs several weeks later. The exact timing of arraignments varies from one locality to another.

An unreasonable delay violates the defendant's federal constitutional Sixth Amendment right to a speedy trial. If a criminal complaint, information, or indictment is issued and the prosecutor's office or the court does not schedule the case for arraignment until months or years later, the defendant's attorney can ask that the case be dismissed because of the delay.

What Happens at Arraignment?

How courts conduct arraignments and what occurs varies with each state's laws and its state constitution.

Advise Defendant of Constitutional Rights

Courts must typically advise defendants of certain constitutional rights at arraignment, such as the right to trial, the right to counsel, and the right against self-incrimination. Some states require a defendant to be represented by counsel at arraignment. If the defendant wants an attorney present, the court cannot arraign the defendant without giving the defendant an opportunity to obtain counsel or meet with appointed counsel.

Advise Defendant of the Charges

At the arraignment, the court must inform the defendant of the charges against him. In some states, the judge must read the criminal complaint, indictment, information, or another charging document to the defendant unless the defendant waives the reading. The defendant also is entitled to receive a copy of the charging document.

Entering a Plea at the Arraignment

Once the court has advised the defendant of the charges against him, the judge may ask how he pleads to those charges. Often a defendant pleads not guilty at this point. Or if the defendant isn't ready or hasn't met with counsel, the judge may grant the defendant time to do so (called a continuance). In a few cases, a defendant might plead guilty or no contest.

Not Guilty Plea

Defense attorneys usually recommend that criminal defendants plead not guilty at arraignment. If a defendant pleads not guilty, the prosecutor must gather the evidence against the defendant and then give the defense an opportunity to review the evidence, investigate the case, and determine whether the evidence proves that the defendant committed the crime. A not-guilty plea means simply that the defendant is going to make the state prove the case against him. A defendant can change a not guilty plea to a guilty plea later on.

Guilty Plea

Sometimes a defendant might plead guilty to a very minor crime at arraignment, such as disorderly conduct. If this happens, the judge may sentence the defendant at arraignment. The prosecutor and defense attorney may negotiate the guilty plea and agree on a sentence during the arraignment. If the case is more serious, the judge probably will set a sentencing hearing and request a presentence report.

Plea of No Contest (or Nolo Contendere)

Some states allow defendants to enter a plea of no contest. In this type of plea, the defendant doesn't admit guilt but acknowledges that the prosecutor has enough evidence to get a conviction. If the judge allows the plea, it proceeds in the same way it would proceed if the defendant pleaded guilty.

Setting Conditions of Bail or Pretrial Release at Arraignment

In some states, an arraignment includes setting conditions of release, if necessary. In deciding whether to release the defendant pending completion of the case, courts primarily consider:

• whether the defendant is a danger to the community
• the defendant's criminal record
• the defendant's ties to the community (length of time living in the community; whether family lives nearby)
• whether the defendant is employed in the community and for how long, and
• whether the defendant has any history of failing to appear for court.

The following are options that may be available to the court in deciding the conditions of release.

Release on Recognizance

Being released on your own recognizance ("ROR" or "OR") means you are released on the basis of your promise to report for trial and any other court proceedings in your case. Courts usually release defendants ROR only in minor criminal cases or when the defendant has a minimal record of prior criminal offenses, if any, and a permanent local address and employment.

Release on Bail or Bond

If the judge requires that a defendant post bond or bail, the defendant must post money with the court in order to be released pending completion of the case. The court can require a cash bond or a surety bond. If the bond is cash only—for instance, $10,000 cash—the defendant must post that amount with the court. Once the case is completed, the money is refunded, less any fees the court requires.

If the court allows a surety bond, a bondsman or bail bondsman is permitted to deposit a percentage of the bond amount with the court with a contract that the bondsman will pay the balance of the bond if the defendant does not appear for court and cannot be located. The defendant must pay the bondsman a non-refundable portion of the bond (usually ten percent) and provide collateral (such as a deed to a home or other piece of real estate) or a co-signor, or both, to guarantee his appearance. If the defendant disappears and the bondsman is required to pay the bond to the court, the bondsman can collect that money from the co-signor or take possession of the collateral.

Other Conditions of Release

In addition to ROR or requiring the defendant to post bail, the court can impose other conditions of release on the defendant, including no contact with witnesses, no use of drugs or alcohol, no association with other defendants, no new arrests, no association with known criminals, no possession of weapons, and no travel outside the county or state. If the defendant violates any of these conditions, the court can rescind the ROR or bond and hold the defendant in jail without bond.

Supervised Pretrial Release

In addition or as an alternative to setting a bond or other conditions of release, the court can place a defendant in a supervised release program while his case is pending. In some states, this is known as pretrial supervision and is similar to being on probation while your case is pending. You will be required to report to a probation or other supervising officer and to comply with any conditions the officer sets such as the conditions listed above.

Set a Date for Future Hearings

Defendants and their attorneys might raise legal issues at the arraignment that the judge will want to consider in the future. For example, in certain kinds of cases, the defendant might file a motion arguing the case has been filed in the wrong court or that the activity they're charged with isn't actually a crime. The judge will usually set a date to have a hearing on such motions.

Depending on the state and whether the charge is a felony or a misdemeanor, the judge could schedule hearings for the next steps in the criminal case (that don't involve motions), which are often heard by other judges. For example, the judge at arraignment might schedule a preliminary hearing or a settlement conference (discussions about a possible plea bargain) in another judge's courtroom.

Can a Defendant Waive Arraignment?

Criminal defendants usually have the option to waive arraignment, especially if a defendant has an attorney. Defense counsel can facilitate this process by communicating with the prosecutor and the court and submitting a waiver of arraignment in writing. In some cases, the attorneys work out an agreement as to the conditions of release and submit it to the court with documents waiving arraignment. In other cases, the court allows the defendant to waive arraignment and schedules a separate hearing on conditions of release. (And if the defendant is really lucky, their defense attorney may have already negotiated a dismissal of some or all of the charges.)

Consult an Attorney

If you are arrested or receive a notice of arraignment, contact a criminal defense attorney immediately. A knowledgeable attorney can give you information about the arraignment process in your state and discuss your options with you. Having counsel represent you at arraignment can reduce the stress of the arraignment process for you and ultimately might make a difference in what conditions of release the court imposes.