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What is the “initial appearance” and the “arraignment”?
The initial appearance is the first court proceeding for a defendant. Generally, the first appearance will take place with 24-72 hours of arrest. The judge will review whether probable cause exists to detain the individual on the subject charges. During the initial appearance, the judge will review the defendant’s rights. It is a restatement of the Miranda warning as well as reassurance of other certain constitutional rights afforded the defendant, including:
- the right to remain silent
- the right to be represented by counsel (and appointment of counsel if indigent);
- the right to know all charges against her;
- the right to a preliminary hearing;
- the right to seek pre-trial release (if the Judge so grants);
This process helps ensure that the defendant’s 5th Amendment right against self-incrimination is preserved.
The arraignment is the judicial proceeding that officially starts the trial process. At the arraignment the court will officially inform the defendant of the charges against her. She will be asked to respond to the charges in the form of a plea of guilty, not guilty, or no contest. In some cases, the initial appearance and arraignment will take place at the same time. This is particularly true when there is no formal arrest. Often, white-collar crimes do not involve a traditional arrest. If the grand jury hands down an indictment, the defendant will voluntarily appear before the court for a combined initial appearance and arraignment.
Discussion: Why do you think the arraignment is necessary? Should a defendant be informed of the charges against her at the initial appearance, rather than at the arraignment? Should a party be able to forgo arraignment by entering in a plea by other methods?
- An arraignment is necessary so that the accused individual knows the charges that have been filed against them by the prosecuting attorney, which may be different than the potential charges for which they were arrested by law enforcement officers, and can enter their plea. Due to this discrepancy, the defendant should be informed of the charges against them at all stages of the process: the potential charges for which they were arrested by law enforcement officers at their initial appearance and the charges officially filed by the prosecutor at their arraignment. Arguments can be made for combining the initial appearance and arraignment in order to streamline the process. However, this approach could also cause significant delays. Prior to the arraignment, the prosecutor must have time to review the potential charges submitted by the arresting officer and the defendant must also have time to obtain and meet with their attorney prior to entering their plea. It is extremely unlikely that all of that could take place within the 48-72 hour window usually required for the initial appearance. Arguments could also be made for forgoing an in-person arraignment in favor of a paper or virtual arraignment through which the defendant is informed of their charges and can enter their plea through the mail or a teleconference in order to cut down on the number of court appearances (missed work, travel costs, etc) and attorney’s fees.
Practice Question: On Friday night, Charles was arrested on Friday night for assault after getting into a fight at a bar. At what point is Charles first informed of the charges against him? When is Charles first required to respond to those charges against him?
- Charles will be informed of the potential charges for which he was arrested at his initial appearance, which will take place within 48-72 hours of his arrest. However, he will not respond to any charges against him until his formal arraignment after the potential charges for which he was arrested have been reviewed and then withdrawn or officially filed by the prosecuting attorney.
Osler, Mark William and Manske, Jeffrey, Crazy Eyes: The Discernment of Competence by a Federal Magistrate Judge (January 22, 2010). Louisiana Law Review, Vol. 67, No. 751, 2007. Available at SSRN: https://ssrn.com/abstract=913393