People who have been arrested—particularly those who haven’t bailed out of jail or been released on their own recognizance—want to know when they’ll get in front of a judge. They want to know the charges they face, whether they can get out of custody, and whatever else about the criminal process they can glean from that first court appearance.

Many states refer to the first appearance as “arraignment,” while others use terms like “initial appearance.” No matter how they describe it, they all prohibit law enforcement agencies from confining suspects indefinitely, without judicial oversight.

The time within which the initial appearance must take place varies from jurisdiction to jurisdiction—and isn’t always clear. (In fact, rules on arraignment and initial appearance can even differ from one city or county in the state to another.) Some state laws specify how soon suspects are entitled to appear in court, while others nebulously ban “unnecessary delay” after arrest.

What Happens at “Arraignment”

In both state and federal court, the initial court appearance is typically the point at which the court advises the defendant of the charges and certain constitutional rights, including the right to counsel. The court may also:

  • inquire whether the defendant plans to hire an attorney or (if eligible) use the public defender
  • take the defendant’s plea
  • determine whether to set bail and in what amount, including whether to release the defendant on “OR
  • establish conditions for the defendant’s release pending resolution of the case (such as travel restrictions or a ban on contact with the alleged victim), or
  • set dates for further proceedings (such as a date for the parties to report back on plea negotiations or for a preliminary hearing).

Subsequent Arraignment

The term “arraignment” relates to the presentation of charges against the defendant. If the charges change in some way, then the court may be required to arraign the accused again, well after the initial court appearance. For example, in many cases, the court will arraign a defendant charged with a felony on the initial complaint, then arraign him or her again after the preliminary hearing, on the information. (Unless the prosecution and defense have come to a plea agreement by this point, the defendant will probably again plead “not guilty” to the charges.)

Probable Cause?

Some states combine “probable cause determinations” with the initial court appearance. That’s because, for law enforcement to keep a suspect in custody pursuant to a warrantless arrest, the Fourth Amendment requires a judicial determination of probable cause. (Most arrests are warrantless.) If the court doesn’t find probable cause to believe the defendant committed the crime—a rare occurrence—then it must order the defendant’s release. (County of Riverside v. McLaughlin, 500 U.S. 44 (1991).)

If the government (a county, for example) combines probable cause determinations with initial appearances, it must hold them “as soon as is reasonably feasible, but in no event later than 48 hours after arrest.” (Weekends are included within the 48-hour calculation.) Even a less-than-48-hour delay may be unreasonable—for instance, if officers orchestrated it in order to allow time for the defendant to confess. If authorities miss the 48-hour window, the government has the burden of proving that an emergency caused the delay. (Id.)

Probable cause determinations may be informal, based only on affidavits, which are a form of sworn written statements, or similar documents. The defendant’s presence may not even be required.

“I Thought You Said 48 Hours”

Despite the Supreme Court ruling that initial appearances that are combined with probable cause hearings must be held within 48 hours of arrest, many jurisdictions provide a 72-hour window for arraignment. This allows for the timely arraignment of defendants nabbed over the weekend.

Regardless of the 48-hour “mandate,” courts routinely approve the 72-hour schedule. For example, one federal court okayed a sheriff’s policy of bringing suspects to court within 72 hours at the outside, but as soon as “reasonably possible.” The court said that determinations of probable cause outside the 48-hour window aren’t always unreasonable. (Jones v. Lowndes County, 678 F.3d 344 (5th Cir. 2012).)

Excuses, Excuses

In practice, government agents have a bit of slack—as long as they make a conscientious effort to get a suspect in front of a judge quickly, they’re probably in the clear. And even an illegal delay in bringing a defendant to court probably won’t invalidate a subsequent conviction unless the delay somehow contributed to it. (Morse v. U.S., 256 F.2d 280 (5th Cir. 1958), United States v. Chavez, 705 F.3d 381 (8th Cir. 2013).)

In a 2009 federal case, for example, FBI agents arrested the defendant for bank robbery pursuant to an arrest warrant early on a Friday morning. (United States v. Harrold, 679 F.Supp.2d 1336 (N.D. Ga. 2009).) The agents began trying to locate a magistrate shortly after the arrest, but couldn’t find one who was free before Monday, which is when they ended up taking the defendant to court. In the meanwhile, the officers interviewed the defendant—during that interview, which was more than 12 hours after the arrest, he gave self-incriminating statements.

The defendant asked the court to suppress his statements because he made them before officers had brought him to a judge. Federal law allows for the suppression of any statements made by a defendant before an initial court appearance if there was unnecessary delay in getting him or her before a judicial officer. (Statements by the suspect within six hours of arrest are presumptively admissible.) But, because the court considered the delay between the defendant’s arrest and first appearance reasonable, it refused to suppress the defendant’s statements. (Id.)

Consult a Lawyer

If you’ve been arrested or charged with a crime, consult an experienced criminal defense attorney as soon as possible. An experienced lawyer can aid in trying to get you out of jail, guide you through the court process, and fully advise you of the applicable law, including any recent changes.