Criminal Arraignment: What to Expect

The arraignment is often the first court appearance following an arrest or criminal citation. Here's what happens.

An arraignment is a court proceeding at which a criminal defendant is formally advised of the charges against him and 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.

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.

When Does Arraignment Occur?

Arraignment must occur within a reasonable time after arrest. 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. The judge must review the circumstances of the delay and determine whether the delay was unreasonable.

What Happens at Arraignment?

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

Advising the Defendant of Constitutional Rights

In some states, courts are required to advise defendants of certain constitutional rights at arraignment, such as the right to trial, the right to counsel, and the right against self-incrimination. In some state courts, defendants are advised of their rights as a group before appearing in front of the judge.

In some states, the defendant has a constitutional right 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 appointing a public defender.

Advising the Defendant of the Charges

At 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

Once the court has advised the defendant of the charges against him, the judge will ask how he pleads to those charges. The defendant can plead not guilty, guilty, or no contest.

  • Not guilty. 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.
  • Guilty. If a defendant pleads guilty to a very minor crime at arraignment, such as disorderly conduct, 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.
  • No contest ("nolo contendere"). If a defendant pleads no contest, he acknowledges that the prosecutor has enough evidence to prove he committed a crime but does not admit guilt – in other words, that he did it. When a defendant enters this plea at arraignment, the court proceeds in the same way it would proceed if the defendant pleaded guilty.

Setting Conditions of Pretrial Release

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 (how long he has lived in the community and whether he has family 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 conditions of release:

  • Release on the defendant's own 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.
  • Bond or bail. 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 nonrefundable 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. 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 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.

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.

Additional Information

To learn more about arraignments, see the following articles.

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.

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