Arraignment Research Paper

Distinction from Initial Appearance and Ger Te Probable Cause Proceeding

The term ‘‘arraignment’’ is habitually misused by courts and commentators when referring to another pretrial proceeding, the ‘‘initial appearance.’’ The initial appearance is the proceeding at which an individual first appears before a judicial officer following arrest on a criminal charge. Unlike the arraignment proceeding—wherein a defendant is formally advised of charges contained in an indictment or information and asked to enter a plea—the purpose of the initial appearance is to have a judicial officer inform the defendant of the basis for the arrest, advise the defendant of her rights, and, if necessary, appoint counsel. Also unlike arraignment, defendants are not normally required to enter a plea at their initial appearances. In the federal system, the initial appearance is governed by Federal Rule 5(a), which requires arrested persons to be brought before the nearest available judicial officer ‘‘without unreasonable delay.’’ Similar procedural rules exist in state criminal systems. Although frequently mislabeled as an ‘‘arraignment,’’ even by Justices of the U.S. Supreme Court, it was this initial appearance, and not an arraignment, which was the subject of Mallory v. United States, 354 U.S. 449, 453–54 (1957) and McNabb v. United States, 318 U.S. 332 (1943).

If a defendant is arrested without a warrant, the bulk of an accused’s initial appearance will often be devoted to the question of whether probable cause existed to justify the arrest. To justify a defendant’s continued detention after a warrantless arrest, a judicial officer must approve the police officer’s decision to arrest shortly after the arrest occurs (Gerstein v. Pugh, 420 U.S. 103 (1975)). Often this will take place at a defendant’s initial appearance before the court, although technically the probable cause determination serves a purpose distinct from that of the initial appearance.

The probable cause proceeding is not an adversarial one. Defense counsel may appear with the accused at a Gerstein proceeding, but the Constitution does not require it. Neither must the prosecutor produce witnesses to provide evidence in support of the criminal allegations. Rather, the prosecutor’s evidentiary obligations at this very early pretrial proceeding are satisfied once a law enforcement officer with knowledge of the investigation swears to the truth of the criminal allegations under oath and in the presence of the judicial officer. If the substance of those allegations amount to probable cause to believe that the arrestee has committed a criminal act, the prosecutor will have met her burden to justify the arrest. To satisfy the Fourth Amendment’s requirement of a ‘‘prompt’’ resolution of this probable cause question, such an appearance and determination must take place as soon as reasonably feasible, but presumptively no later than forty-eight hours after arrest (County of Riverside v. McLaughlin, 500 U.S. 44 (1991)).

Distinction from Other Pretrial Proceedings

Two other pretrial proceedings, bail hearings and preliminary examination hearings, are also sometimes confused with arraignments. Contributing to the confusion is the practice of some state and federal courts to combine the arraignment with other pretrial proceedings. For example, a jurisdiction might choose to combine arraignment with a bail proceeding, particularly if the accused has not appeared earlier on similar charges contained in a criminal complaint.

Purpose of Arraignment

As stated above, although sometimes combined, arraignments serve a purpose distinguishable from that of initial appearances, Gerstein proceedings, bail proceedings, and preliminary examination hearings. At arraignment, the court formally informs a defendant of charges contained in an indictment or information, provides the defendant with a copy of the charging instrument, and takes the defendant’s answer to those charges in the form of a plea. In open court, and outside the presence of a jury, the judicial officer reads or relays the substance of the indictment or information to the accused and requests that the accused enter a plea to the charge or charges. For this to occur, defendants must generally appear in person at the arraignment, and challenges to procedures permitting arraignments to occur via video teleconferencing have been heard by the courts. These challenges generally fail, however, if the defendant and counsel were able to see and hear the activities transpiring in the courtroom and the judge conducting the arraignment was able to see and hear the defendant throughout the proceeding.

As the foregoing description of the proceeding suggests, an arraignment is a largely formal procedure that, unlike other pretrial proceedings, takes little time to complete (if unaccompanied by an extended plea colloquy). The arraignment is nonetheless a critical juncture in the criminal process for many reasons. First, speedy trial obligations are often triggered on the date of arraignment. Second, should an accused flee after being arraigned, the prosecutor may choose to proceed in abstentia (i.e., proceed to trial in the defendant’s absence). Third, from the point of arraignment, right to counsel is clear and failure to appoint counsel for an indigent defendant asked to enter a plea will bar valid conviction in the absence of a knowing and intelligent waiver ( Johnson v. Zerbst, 304 U.S. 458 (1938) and Gideon v. Wainwright, 372 U.S. 335 (1963)). (The due process clause of the Fourteenth Amendment makes the Sixth Amendment’s guaranty of counsel applicable to states.) Finally, after arraignment on an indictment or information, the charging instrument normally may not be materially altered absent rearraignment on the new or amended charge.

Defects or Delay in Arraignment Process

A failure to comply with arraignment requirements will not necessarily, nor even usually, result in a ruling vacating a conviction or dismissing an indictment. Rather, a defect in the arraignment process (even a failure to arraign the defendant on a charge) will affect a conviction only where actual prejudice resulting from the defect can be shown. Thus, in Garland v. Washington, 232 U.S. 642 (1914), the Supreme Court refused to vacate a conviction despite evidence that a defendant was never arraigned on a count in a superseding information. Disparaging the defendant’s due process challenge as a mere ‘‘attempt to gain a new trial for want of compliance with what in this case could have been no more than a mere formality,’’ the Court held that, absent proof that the defendant suffered actual injury from the failure to re-arraign on the superseding charge, the conviction would stand.

Similarly, although a delay in a defendant’s arraignment may raise serious speedy trial concerns grounded in the Sixth Amendment or statutory law, a reversal or dismissal of the indictment is unlikely for the sole reason that arraignment was delayed. Courts called upon to consider dismissal of an indictment on such grounds typically consider four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his rights to a more speedy disposition; and (4) the prejudice to the defendant resulting from the delay (Barker v. Wingo, 407 U.S. 514, 530 (1972)). Under these and similar standards, the mere passage of time between the return of an indictment and arraignment will not normally be determinative of constitutional speedy trial challenges. Rather, the delay must have actually prejudiced the accused to support such a claim.

Nature and Consequences of Various Pleas Entered at Arraignment

As stated above, one of the principal reasons for arraignment is to enter the accused’s plea to charges once an indictment or information has been filed. There are three pleas available to criminal defendants, guilty, not guilty, or nolo contendere, although many jurisdictions will accept a nolo contendere plea only with the express permission of the court.

Although courts may accept guilty pleas at arraignment (or even before if the defendant waives the right to an arraignment), the vast majority of criminal defendants who plead guilty do so after their arraignments have taken place. If a court accepts a defendant’s guilty plea at arraignment, strict procedures designed to safeguard the accused’s constitutional and statutory rights must be satisfied. Extended colloquy with the accused is called for to ensure that the plea is ‘‘intelligent and voluntary’’ (Boykin v. Alabama, 395 U.S 238 (1969)). This includes, among other things, a determination that the defendant understands the nature of the pending charge or charges, as well as the consequences of entering a guilty plea and the rights lost or waived by doing so. The court accepting a guilty plea must also determine that there is a factual basis for accepting the plea.

By far, most defendants plead not guilty at arraignment, at which time different things occur, depending on the jurisdiction. In many jurisdictions, particularly in the federal system, pleas at arraignment will be taken by a magistrate judge, who will then inform the defendant of the name of the trial judge assigned to preside over the case. In some jurisdictions, arguments for and against bail might also be heard. No matter the jurisdiction, the entry of a not guilty plea will in some sense signal trial readiness, although it is common for a considerable amount of time to pass between the entry of such a plea and trial to allow the parties to comply with discovery obligations and resolve pretrial motions.

Finally, in some jurisdictions a defendant may enter a plea of nolo contendere by which a defendant asserts that he does not contest the charges. Unlike pleas of guilty or not guilty, nolo contendere pleas are not available to a defendant as a matter of right, and some jurisdictions do not allow them. Others permit such pleas only with the consent of the court and sometimes the concurrence of the prosecutor. Where permitted, a nolo contendere plea will subject a defendant to the same sentence as a guilty plea. Unlike a guilty plea, however, evidence of a nolo contendere plea is inadmissible in a subsequent civil action to prove that the defendant committed the offense to which she entered a plea. It is, however, admissible in subsequent criminal proceedings to prove perjury or false statement.

Bibliography:

1. Dressler, Joshua. Understanding Criminal Procedure, 2d ed. § 1.03[C][6] at 10: Matthew Bender, 1997.
2. Gilmore, Warren ‘‘Arraignment by Television: A New Way to Bring Defendants to the Courtroom.’’ Judicature 63 (1980): 396.
3. Kamisar, Yale; LaFave, Wayne; Israel, Jerold H.; and King, Nancy. Modern Criminal Procedure, 9th ed. St. Paul, Minn.: West Group, 1999. Pages 28–29; 1013–1014.
4. Steinberg, Corey. Note, ‘‘‘Justice Delayed Is Justice Denied’—The Abuse of PreArraignment Delay.’’ New York Law School Journal of Human Rights 9 (1992): 403.
5. Thaxton, Ronnie. Note, ‘‘Injustice Telecast: The Illegal Use of Closed-Circuit Television Arraignments and Bail Bond Hearings in Federal Courts.’’ Iowa Law Review 79 (1993): 175.
6. Whitebread, Charles, and Slobogin, Christopher. Criminal Procedure: An Analysis of Cases and Concepts, 3d ed. New York, N.Y.: Foundation Press, 1993. Pages 487–545.