Arraignment

Arraignment to identify the accused and present the charge

What is arraignment? This the time where a person is informed of the charges against them in court. Once the judge reads the charges and identifies the person (defendant) he or she will plead either guilty or not guilty.

Arraignment takes place after a person has been arrested for a crime. The person is now called a defendant. The defendant may either bond out after arrest or stay in jail awaiting the arraignment date. The arraignment takes place in a courtroom in front of a judge. This courtroom may be a special arraignment court or the actual court that the defendant’s case is being prosecuted in.

Texas Code of Criminal Procedure Chapter 26 says “In all felony cases, after indictment, and all misdemeanor cases punishable by imprisonment, there shall be an arraignment.”

What Does Arraignment Mean?

Arraignment comes from the mid 15th Century origin word araisnement. It means “to call account” or “call up in court.”

Does the Defendant Have to Appear for Arraignment?

An attorney for the defendant can present a waiver of arraignment which allows the court clerk to not require the defendant’s presence in court for arraignment.

When is Arraignment?

In Texas, regarding defendant’s in jail for a felony, the arraignment must not be before 2 days from when a copy of the indictment was served on the defendant. This delay may be waived by the defendant. The 2 day delay does not apply to a defendant on bail.

Federal Initial Appearance

The same day of arrest and charged or the day after, the accused is brought before a magistrate judge for an initial hearing. The defendant learns about his or her rights and the charges against him or her. Arrangements are made for a lawyer to be appointed. At this time the judge decides if the accused will be held in jail or allowed bail.

In order for the judge to decide to grant bail, a hearing is held to determine certain factors. The factors include whether the defendant lives in the area, has family in the area, prior criminal history and if the defendant has previously threatened any witnesses. Also the judge weights whether the defendant is a potential danger to the community.

Arraignment Process

During the initial part of a case the judge will be deciding if the defendant has legal counsel. The Texas Code of Criminal Procedure requires that each county in Texas must adopt and publish written rules for providing counsel to indigent defendants. The court in most cases must appoint attorneys from a pre arranged rotation list. The court must show good cause if appointing a lawyer who is not next on the appointment list.

The court is required to see that “appointments are reasonably and impartially allocated among qualified attorneys.” The appointed attorney is required to make every reasonable effort to contact the defendant by the end of the work day following the day of the criminal case appointment. The court may replace the attorney if he or she does not satisfy the contacting of the defendant by the end of the work day following case appointment.

The judge or judge’s designee are the only people authorized to appoint lawyers to indigent defendants.

Arraignment Hearing

The arraignment hearings usually have a pre-assigned date and time. The defendant shows up to court and the judge or clerk will call the defendant’s names on the docket to determine if they are present. At some point the defendant will be called to the bench and identification is verified.

The judge will then read the charging instrument to the defendant and ask if the defendant understood the charges against them. After this point the judge will ask how the defend pleads. Guilty or Not Guilty?

Sometimes a defense attorney and the prosecutor will have had time to discuss the case with each other. The prosecutor, after evaluating the case, may have made an offer to resolve the case. This offer sometimes will have been given to the defense lawyer who should discuss it with his or her client either at the jail or elsewhere.

If a plea of not guilty is answered it will be entered in the minutes of the court. If the defendant refuses to answer the judge on his or her plea a plea of not guilty shall be entered in the minutes.

If an offer is satisfactory, the defendant may choose to accept it and plead guilty or no contest to the court during arraignment. At this time the plea paperwork will be filled out and a judgment form filled in the sentence that the defendant will be accepting.

Sometimes a court will accept a guilty or no contest plea and put off sentencing to allow the probation department to determine a defendant eligibility for community supervision. Or a court may delay sentencing for a defendant to turn themselves into jail at a later time.

Preliminary Hearing

Different jurisdictions have differing names for their initial hearings. In Texas a preliminary hearing is called an Examining Trial. An examining trial is an adversarial hearing where the magistrate judge decides whether there is probable cause to justify a detention of the defendant pending prosecution.

An examining trial allows the defendant an opportunity to discover the states case against him. The accused in a felony shall have the right to an examining trial in the county having jurisdiction before indictment. There is court of criminal appeals caselaw that says presenting a case to the grand jury satisfies the timeliness of determining probable cause.

If the accused wishes to make a voluntary statement at the examining trial it must be before any other testimony. There is no right after any other witness has been examined. The defense lawyer and prosecutor may question any witnesses on direct or cross.

The testimony of the witnesses shall be in writing by or under the direction of the magistrate. The magistrate shall either read the writing to the witnesses or to himself. All testimony shall be certified by the magistrate. The magistrate attests to the signed statements with the magistrates certificate and signature.

What Happens After an Arraignment?

After an arraignment, if the defendant pleads not guilty, the court clerk or judge sets another hearing date. This may be to allow the defense attorney to obtain more discovery or further discuss the case with the defendant. At this point the defendant may want to weigh the options of going to trial. If trial is not an option, the defense attorney may want to continue to work on the case to improve the offer that the prosecutor is making.

One of the big issues the defense attorney needs to address is whether probable cause exists for the arrest. The defense attorney will need to timely file a motion to suppress if this is an issue. At an assigned date and time pre trial motions, such as a motion to suppress, will be heard by the court on the record. “The record” means that a court reporter is taking down everything said in court or entered into evidence.

All the pretrial motions will be heard either on a set day prior to trial or sometimes on the day of trial. The trial will be set before a judge or a jury. The defendant and prosecutor are able to decide what they prefer. The prosecutor in Texas will have to waive a jury in order for the defendant to have the judge be the fact finder rather than a jury.

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Author: Eric Torberson

Eric Torberson is a licensed attorney in Texas as well as licensed in the federal courts of the southern and western districts of Texas.