7. 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?
• 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?