Arraignment

 

  1. Advice of Rights

 

An arraignment is the point in the court proceedings where the defendant is advised of the charges against him or her. If the defendant is not represented, the court informs him or her of the charges, including any prior convictions and his or her right to counsel and to a speedy trial.

 

If the defendant is unrepresented, the judge then asks if he or she will hire an attorney or wishes to have counsel appointed to him or her.

 

  1. Bail

 

The court then considers the defendant’s custody status. If bail has not already been set, and if the offense is bailable, the court must set bail at defendant’s first court appearance. Many counties have some sort of system wherein the defendant is interviewed by a magistrate/judge before the first court appearance, where questions are asked of the person in custody in an effort to assess the person’s background, employment, family ties and prior record to determine the prisoner’s eligibility for O.R. release (release on his or her own recognizance). In other words release from jail without posting bail and simply with the promise by the defendant that he or she shall make all court appearances.

 

  1. Appointment or retention of Counsel

 

If counsel has not been retained as appointed to represent the defendant, the case may be continued to allow the defendant to retain counsel of his or her choosing. When a case includes multiple defendants, each defendant must have his or her own counsel.

 

  1. Arraignment in Misdemeanor cases

 

In a misdemeanor case the defendant’s appearance is not required, the code allows counsel to appear on behalf of his client.

 

At the arraignment, counsel has several options as to have placed in the case. He or she can waive arraignment, request a probable cause hearing, if defendant is in custody, ask the court to release the defendant on his or her own recognizance or set or reduce bail, enter a plea, ask the court to continue the case before entering a plea, set the case for appropriate motions, request a pretrial to negotiate with the city or district attorney or set the matter for trial.

 

Arraignment in Felony Cases

 

In a felony case, the prosecution may proceed in one of two ways: complaint or an indictment. Complaint being the more common of the two.

 

When proceeding by a filing of a complaint, the prosecution simply files a complaint with the magistrate, and the defendant must appear before the court for an arraignment. The court there sets the case for preliminary hearing within 10 court dates of the date the defendant is arraigned or pleads not guilty, whichever occurs later, unless time is waived and the hearing is set at a different date beyond the 10 court days.

 

At the time the preliminary hearing is heard, if it is held by the court that there is insufficient evidence, the case is dismissed and if the defendant is in custody, the defendant is released from custody. If the court finds there is sufficient evidence to hold the defendant for trial, then a court date is set for the next appearance.

 

The purpose of the arraignment is to inform the defendant of the charges against him or her.

 

A defendant charged with a misdemeanor or a felony and held in custody, must be brought before a magistrate without unnecessary delay following the arrest. Unnecessary delay means “within 48 hours after arrest excluding Sundays and Holidays.” The language has been interpreted to exclude weekends.

 

The 48 hour limitation applies to people arrested with or without warrant for infractions, misdemeanors or felonies.

 

Failure to comply with the requirement for timely filing of the charging document and arraignment in court does not necessarily require dismissal of the case although it may affect the legality of a confession made during the trial the arraignment was delayted.

 

To warrant dismissal, the delay between arrest and arraignment must be unreasonable and deprive the defendant of a fair trial or otherwise be prejudicial to the defendant. Defense counsel may seek a defendant’s release from custody when the defendant is held by or the time limit by filing a petition for writ of habeas corpus.