2. The arraignment

An arraignment is usually the first court date in a criminal case. At an arraignment, a defendant finds out what they're charged with and what rights they have. If they can't afford a lawyer, the judge can appoint one for them. The judge also sets the next court dates. 


Find out the charges and the defendant's rights, including the right to a lawyer

At an arraignment, the judge tells the defendant:

  • What they are charged with
  • Their constitutional rights 
  • That if they cannot afford a lawyer the court will appoint them one free of charge

The district attorney will be at the court date. If the defendant already has a lawyer, they will be there as well. If the defendant cannot afford a lawyer, the judge will appoint one, typically a public defender.

If the defendant does not understand English, the judge must appoint the defendant an interpreter at no cost. If one is not available, they will get a new arraignment date when an interpreter is available.

  • examples of important defendant's rights
    • The right to be represented by a lawyer (attorney), and to be appointed one at no cost if they can't afford one
    • The right to remain silent (not testify against themself)
    • The right to a speedy trial
    • The right to a jury trial
    • The right to compel witnesses to come to court on their behalf
    • The right to ask witnesses questions who testify against them (cross-examine)

Defendant says how they plea 

Once the defendant knows what they are charged with and their rights, the defendant will be asked how they plea. The most common pleas are guilty, not guilty, or no contest (nolo contendre). 

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A defendant should talk to their lawyer before pleading guilty or no contest. The consequences, besides possible jail or prison time, can be quite severe. For example, a conviction can have immigration consequences for noncitizens. Some convictions will prevent someone from having certain types of jobs. In a felony case, the defendant should have a lawyer before the judge takes a guilty plea.

Judge addresses bail and any release conditions

Next, if the defendant is still in jail (in custody), the judge will decide whether the person should stay in jail until the case ends or if they can stay out of jail. The judge may decide to:

  • Allow the defendant to stay out of jail with a promise they will return for their court date (called released on their own recognizance)
  • Allow the defendant to stay out of jail, but under supervision, like they stay at home (home detention) or wear an ankle monitor
  • Set bail and have the defendant return to jail until bail is posted
  • Not set bail. The defendant stays in jail until the case is finished.

Bail is money the defendant pays as a guarantee that they will show up to their court dates. If they do, the money will be returned at the end of the case.

The judge must consider many factors in making the decision, like the type of crime, if it is a felony or misdemeanor, or if it involved domestic violence. They also consider public safety and whether the person is likely to not show up for a court date (a flight risk).

Typically, someone charged only with misdemeanors will be released on their own recognizance. There are some exceptions. For example, there are different rules for cases involving domestic violence.

Felony cases involving serious violence have special rules. In some cases, the victims have a right to be notified about when the judge will make a decision about if the person will be released and will be given a chance to share what they think should happen.

Protecting victims and witnesses. In some cases, a judge will issue a criminal protective order. In general, these say that the defendant must stay away from a victim or witness and their family. If this happens, the defendant will get a copy of the order at the arraignment. 

Next court dates

If the defendant pleads not guilty, the defendant will get another court date

Next, the judge will set more court dates. For someone charged with a misdemeanor, this is usually a pretrial conference. For someone charged with a felony, this is usually a preliminary hearing. The next section discusses what happens on these court dates. 

The timing of these court dates depends on whether the defendant gives up (waives) their right to have their trial or preliminary hearing start by a deadline. This is called "waiving time."

  • Misdemeanor: Right to A timely trial

    Defendants have a right to have their trial start by a deadline. For a defendant not in custody (not in jail), the trial must start within 45 days of their arraignment or plea, whichever is later. For a defendant who is in jail (in custody), it must start within 30 days of their arraignment or plea, whichever is later. Penal Code section 1382.

  • felony: Right to A timely preliminary hearing

    The defendant and the prosecution have a right to have a preliminary hearing within 10 court days of the arraignment or plea, whichever is later. It can be delayed if there is a really good reason, called good cause. If it is delayed, or the defendant waives the 10 days, they also have right to have the preliminary hearing within 60 days. A court day is a day the court is open, so not weekends or holidays. Penal Code section 959b.

A defendant should get advice from a lawyer before they waive time. The judge will ask the defendant if they waive time. If the defendant does not waive time, their next court dates will need to be set so that court meets the deadlines. If they do waive time, the court could set the court dates after the deadline. 

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