How Arraignments Work in New York City
What follows is a detailed explanation of what an arraignment is, how an arraignment works, and an explanation of various arraignment related concepts and terms. Please understand that the focus of this article is on the procedures in New York City, including Queens, Brooklyn, Bronx, Manhattan, and Staten Island. There is even variation among these counties (boroughs) in New York City. Therefore, the procedures outside of New York City may well be slightly, or in some cases even radically different.
What an arraignment is not
An arraignment is not a trial or an evidentiary hearing. No witnesses are called at an arraignment. No evidence is received at an arraignment. The police officer need not appear for arraignment. The complaining witness need not appear for arraignment. The guilt or innocence of the person accused is NOT decided at arraignment. The accused will usually not even be asked to speak (the lawyer speaks on his behalf).
What is an arraignment?
From the accused's point of view, an arraignment is really about bail - whether or not the judge will set bail, and if so, how much. Although other things happen at an arraignment, the most obvious and significant thing from the perspective of the accused and the friends and family of the accused is the judge's decision to set or not to set bail.
A Little Bit About Bail
If the judge doesn't set bail, that is called "release on recognizance" or ROR for short. Someone who is ROR'd is released simply on his promise that he will return to court on the date set by the judge.
If the judge does set bail, then the accused will be held in custody (at Rikers Island or "The Boat" usually) until the case is over or the bail is changed for one reason or another.
If someone "makes bail" but fails to return to court when told to do so by the judge, New York City gets to keep the money (and the police start looking for the person). If the person fails to return to court within 30 days, the person may be charged with an additional crime of bail jumping on top of losing the money posted for bail.
Bail bond companies will (for a fee) agree to post larger bail amounts for you, but the fees that you pay them will never be returned to you. Their fee is the cost of them being willing to put up the full bail amount and take the risk that the accused will return to court. If a bail bond company posts a bail bond and the accused fails to appear, New York City will take the amount of the bond from the bail bond company. Bail bond companies are essentially insurance companies. Insurance companies don't like to lose money. They will hire private bounty hunters to find people who cause them to lose money.
If the bail is so high that friends and family can't make it, and the friends and family also can't afford a bail bond, the accused could stay in jail for as long as it takes to work the case out. If it will take one year to get the case ready for trial, then the person will remain in jail for one year.
It is possible to have bail reviewed, but it is not always likely that bail will be changed. The law presumes that the bail set at arraignments is the correct bail, and the accused often has an uphill battle trying to persuade a later judge to reduce or eliminate bail. In many cases, judges will want to see a "change in circumstances" from the situation when the bail was set. In some cases a complete "de novo" review is possible through the famous "Writ of Habeas Corpus" filed in New York Supreme Court.
To find out more about bail bonds, click here to be taken to our page just about bail bonds in New York City.
Notice of the Charges
Also at the arraignment, the accused will be informed (through his criminal defense lawyer) of the precise charges against him. During the arrest to arraignment process, the accuracy of the information provided to the people arrested as to their charges (and other information) is often terribly low. Arraignments offer the accused the opportunity to hear the truth about the charges from a source they can trust. The bottom line is that an accused should remain skeptical about any information provided by the police during the arrest to arraignment process. The incredible level of misinformation told to people accused of crimes before they meet with their lawyers for the first time is frankly astounding.
An Arraignment Step by Step
1. Calling of the case - the "bridge officer" or the court officer whose job it is to organize and call the cases into the calendar will announce the case usually by calling out the docket number and then the name of the accused like "People against John Smith".
2. Once the case is called in the police will bring the accused out from behind the courtroom to the place in front of the judge where they have the defendants stand. The defense attorney will be standing next to the defendant and the prosecutor will be standing off to either the right or the left depending on the custom of the county. Everyone will face the judge.
3. The bridge officer will then usually ask the defense lawyer whether he "waives the reading" to which custom in New York City makes the answer "yes." The defense lawyer has the power to force a detailed public reading of the accusations, but tradition in New York City is that such a public reading is dispensed with in favor of simply getting on with it. A refusal to waive the reading is considered a serious breach of etiquette. If this ever happens it is usually the result of a lawyer's ignorance of the custom or a concerted (oft ill-advised) effort on the part of the lawyer to irritate the Court.
4. The judge will then usually take a minute or so to review the file and then ask the prosecutor for "notices". This is the signal for the prosecutor to provide certain required formal notices that may be required by law or custom at the arraignment. These notices can take a number of different forms. The defense lawyer may return some "cross" notices in a seemingly confusing exchange of paperwork.
At the arraignment the prosecutor will also announce certain notices that are commonly given at arraignments about certain types of evidence that might exist in a particular case. Although in most cases, these notices are required within 15 days of arraignment, they are provided by custom in New York City at the time of the arraignment. The most common forms of notices are as follows:
If you hear that "Seven-Ten-Thirty-One-A" notice is being served, that means that the police are claiming that the defendant has made some form of statement during the arrest to arraignment process that the prosecutor intends to use at trial (if there ever is a trial). The statement can take any form. It might be written, it might be spoken (oral), it might be both, and it might or might not be recorded. Once providing the notice, the prosecutor will usually summarize the statement down to its most damaging core. For example, a ten page written confession may be summarized to the judge with "I shot the guy in the back because I hated him." If the statement is written, the prosecutor will hand a copy of it to the defense lawyer at the arraignment. If the statement is on video the defense lawyer will be able to get a copy of it shortly after arraignment. In 2008 the prosecutors began a program of regularly recording statements of people accused of felonies prior to arraignment. DVD recordings of these interviews are turned over at the arraignment.
Realize that statement notice is not read to the judge in order to alert the judge to the accused's cooperative attitude with police as is frequently imagined. A common idea from television and movies is that "cooperative" defendants (meaning in this case defendants who confess) are somehow "rewarded" by judges for their cooperation. This is absurd.
A confession enhances the Government's case, making a conviction that much more likely, and making it that much more likely that the defendant is in fact guilty of the crime charged. At arraignment, therefore, a confession vastly increases the likelihood that a judge will set bail and lots of it.
And frankly this makes more sense than a judge rewarding the person who affirmatively states his guilt of a terrible crime. If the judge were going to reward the person who quickly states his guilt to a terrible crime, should the judge punish the person who does not admit guilt? The person who does not admit guilt may not be admitting guilt because he is in fact innocent. Therefore, there is less reason to set bail on a person who does not confess to the crime charged.
And yet there remains this notion, fixed into popular thought, like some sort of persistent mythology, that the "cooperative defendant" will receive great rewards from the judge. If by "cooperative" we mean confessing guilt, there are no great rewards, unless by "rewards" we mean "conviction and jail".
If you hear that "Seven-Ten-Thirty-One-B" notice is being served, that means that the police conducted some kind of identification procedure as part of their investigation of the case. Although the law recognizes a few different kinds of identification procedures, the all-time classic identification procedure is the line-up. A line-up is a police arranged process in which a suspect is placed among a group of people with somewhat similar appearances. The crime victim then is asked to view the people from behind a window in another room in an effort to test his ability to identify the person the police believe may have been the criminal. When the police conduct a line-up, the prosecutors are required to inform the defense lawyer. The lawyer can then, if he chooses, make inquiry about the fairness of the procedure.
Another type of identification procedures is the "show-up" where a suspect is detained on the street shortly after the crime was committed and held for the victim to immediately make an identification (or not). This is a pretty tricky process because it often ends up being one person held by a police officer and one or more witnesses being asked if "they recognize anyone." The worry about showups is that they run the risk of being suggestive to the witness who may not be so sure of the identification. The fear is that the uncertain witness will simply come to believe that whoever the police are holding is "the guy".
Showups are more frequent than lineups and are a peculiar sort of thing in the law. If you were to read the words that our appeals courts write about showups, you would think that no showup would ever be allowed or that showups would only be allowed under the most extreme circumstances. That's because the words that our courts use to describe showups are extremely negative. Our courts describe showups as "inherently suggestive" and "disfavored" in nearly every case in which the issue comes up.
And yet, in practice, that is in reality, showups are routinely (and by routinely I mean practically always) upheld. If you were to pore over the casebooks and review the appellate cases in which the issue of showups comes up, you would be hard pressed to find more than a handful of cases in which showups were found to be improper.
But to read the words that are written about showups you would be astounded at this. It's like denouncing your next door neighbor every chance you get as the most terrible scoundrel in the all the land, but at the same time inviting him to dinner in your home every night. To write that a procedure that is almost always approved of is "disfavored" is a peculiar state of affairs indeed.
If you hear that "One-Ninety-Fifty" notice is being served, that means that the case is a felony and the prosecutor is simply notifying the defense lawyer that the case will eventually be scheduled to be presented to a Grand Jury. The Grand Jury presentation, if it ever happens, will not happen on that day. You will likely hear the defense lawyer serve "CROSS-One-Ninety-Fifty" notice which means simply that the defense lawyer is reserving the defendant's right to testify before the Grand Jury. It doesn't mean the defendant MUST testify before the Grand Jury, but simply that, out of an abundance of caution, the defense lawyer wants to keep the option open. It is custom in New York City for defense lawyers to file this "CROSS" notice purely as a means to keep the option open even in cases in which they believe the likelihood of the defendant actually testifying in the Grand Jury to be extremely low.
If you hear that "Four-Fifty-Ten" property release notice is being served, that means that the prosecutor is intending to release certain property that was recovered to an owner and that the defense lawyer must inspect the property soon or lose the chance. For example, a person accused of shoplifting might have had some property belonging to a store in his pocket when he was arrested. The prosecutor will typically seek to return this property to the store rather than keep it as evidence for a year or so.
5. After the scurrying around with paperwork is completed, the judge will ask the prosecutor make a statement with respect to bail. This is the prosecutor's chance to tell the judge whether or not he thinks bail should be set, how much he thinks the bail should be, and a brief (usually very brief) description of the case. Do not be alarmed if the defense lawyer doesn't jump up and object or complain during this speech. Everyone gets a chance to be speak uninterrupted.
6. After the prosecutor is finished, assuming that bail is requested, the judge will ask the defense lawyer to say something in response. This is the defense lawyer's chance to challenge statements made by the prosecutor or add information that the prosecutor may have left out. In this argument the defense lawyer may request outright release, or if that seems unlikely, an amount of bail more likely to be made by the defendant or his family.
7. Finally, after hearing once from both sides, the judge will make his decision about bail and the arraignment is over.
8. If bail is set the police will escort the defendant back into the cells behind the courtroom ("the pens") and the defendant will remain in jail until the bail is posted. If the judge releases the defendant, he will then be permitted to leave the courtroom out the door. In some cases, the defendant will need to stay for a short time in the court and wait for various documents, like an order of protection.
NOTE: In some minor cases, the prosecutor, the defense lawyer and the judge may briefly discuss the possibility of resolving the case there and then. Drinking in public cases, for example, can often be resolved at the arraignment.
Be aware that all of the above 8 steps will usually take place in about 3 minutes or less depending on the nature of the case. Five minutes for one arraignment is a fairly long time. Fifteen minutes for an arraignment is a downright eternity. When you carefully consider what is required to be accomplished at an arraignment, as long as everyone involved is highly experienced, it is not as outrageous as it may sound.
Experienced lawyers and judges are adept at evaluating cases and presenting the most relevant persuasive arguments in an extremely tight package. There is an entire vocabulary of arraignments that is lost on those who are not experienced even if they were to read the transcript. This is why watching arraignments in New York City can sometimes be a mystifying experience for the uninitiated. They are fast, filled with legal jargon, and often frustrating for family members.
Family and friends in the audience are often frustrated at the bail arguments of lawyers because they want the lawyer to try the case at the arraignment. They want the lawyer to rant about the injustice of the arrest or the absurdity of the charges. In some cases, some rare cases, such rants might be appropriate (usually only as a venting of frustration when the lawyer senses that the judge is going to do something ill-advised regardless of what he says) but most of the time such rants are totally irrelevant to the arraignment.
Beware of marveling at the lawyer who puts on a spectacular show at an arraignment. Spectacular arraignment shows are sometimes pure entertainment for the family and friends of the defendant. Arraignment is a serious business and it is an important opportunity to be there for your client. But performing what amounts to little more than circus tricks is not often the wisest course of action for the client. At the end of the performance the judge gets to do what he or she wants.
How Judges Decide Bail
Judges typically make the decision based on a few major factors listed below. No one particular factor will decide the issue.
Seriousness of the Charges (more serious is worse)
The more serious the charges against a person, the more likely it is that bail will be set.
For example, a person who is charged with drinking beer in public is not as likely to have bail set as someone charged with armed robbery.
Some charges are so serious, in fact, that no bail at all will be set. A person who is remanded is someone who has had no bail set. Custom in NYC is that people accused of "A" felony crimes are almost always remanded in arraignment without any further discussion. "A" felony crimes include murder, some kidnapping charges, some arson charges, and high-level drug possession and sale charges. These charges are often so serious that if an accused is actually convicted, he faces life in prison.
Prior Criminal History (bad)
A person with a criminal history is more likely to have some bail set than someone with no criminal history. Certainly, the number of prior criminal convictions, the seriousness of the criminal convictions, the recency of the criminal convictions, and the similarity of the criminal convictions to the current charge are all things the judge will consider.
For example, the person who has a prior misdemeanor conviction from 20 years ago is in a better position than a person with a felony conviction from last month.
Be aware that not having any criminal history stops meaning a great deal as the seriousness of the crime increases. A person accused of shoplifting will quite rightly have the argument for release that he has no prior convictions. A person accused of intentional murder, however, is not likely going to get an enormous amount of mileage out of the fact that he has no prior criminal history.
Prior Warrants (very bad)
A person who not only has prior convictions but also has had bench warrants issued on those cases is quite likely to have some bail set.
Understand that the existence of a warrant on the rap sheet doesn't necessarily mean that the warrant is OPEN. It may have been taken care of. The reason judges are concerned with prior warrants, however, is that the entire issue of bail is about whether or not a warrant will ever have to be issued. If a person has failed to return to court when he was supposed to in the past, judges take this to mean that bail may be necessary to make sure the person returns.
Therefore, the issue is not whether or not there are any current OPEN warrants, although that is even worse. The issue is whether or not, in the past, the court was required to issue a warrant for failure to appear when required. This does not appear wildly unreasonable. We are all measured to some degree by how we have conducted ourselves in the past. Of course time passes and we change. But to some degree we all must accept responsibility for our past. Unfortunately, if your past includes warrants having been issued, then this will hurt you in future bail applications.
In some cases, warrants are issued in error, or for silly reasons that are resolved in court to everyone's satisfaction. Unfortunately, the rap sheet doesn't indicate "silly reason", it simply notes the warrant. If there is some legitimate explanation for a warrant having previously been issued, the accused should make a point to explain this to the lawyer at arraignment.
Ties to the Community (good)
If an accused has significant ties to the community he is less likely to have bail set or at least likely to have a smaller amount of bail set. Ties to the community come in many forms but judges typically respond well to the following:
• owns a home or other property in the community
• employed full-time at a steady job
• long-time residence in the same location in the community
• family in the community
• united states citizen
• family and friends in the courtroom for the arraignment
• the making of the effort to hire a private lawyer is sometimes considered evidence that a defendant has a stake in sticking around and answering the chargesline
• voluntarily surrendering at the request of the police is also considered powerful evidence of a defendant's willingness to answer the charges
The Criminal Justice Agency (neutral)
The Criminal Justice Agency (CJA) interviews each person who comes through the system and makes a recommendation with respect to release as to each one. Judges are not bound by these recommendations and there is some debate as to whether the CJA recommendation is a significant factor to most judges. It certainly can't hurt to obtain the "Recommended" approval from CJA, but don't expect such a recommendation to be anything even close to a guarantee of success at arraignment.
The Players in Arraignments
The judge in the arraignment part is quite likely never going to see the individual people he arraigns ever again. From a purely practical standpoint, the judge at the arraignment is usually not terribly interested in any particular case beyond what is absolutely necessary to accomplish the arraignment. The judge is not terribly interested in getting to the bottom of the case, is not terribly interested in investigating the case or hearing evidence on the case. The judge is going to have to do between 80 - 100 arraignments in his shift and is keenly aware that it is simply impossible to become involved in them deeply - nor is it his job to become involved in them more deeply than is necessary to conduct the arraignment properly.
Therefore, you should not imagine that the 24 hours of hell that the accused has been through will somehow be vindicated once the judge finds out about the outrage of his arrest.
Judges' unwillingness to become deeply involved in cases at arraignments is not a flaw. Rather it is simply a measure of the reality of the limited scope of the judge's job at the arraignment.
Judges trade off doing arraignments. Most of them don't particularly care for arraignments although some enjoy the fact that they are in a position to make important decisions that genuinely influence the path of a case.
Judges vary widely in their attitudes about bail. Whether or not bail is set and if so, how much will in many cases entirely depend on the judge who happens to be sitting in the arraignment courtroom at the moment the defendant comes through. Some judges seem to set bail on nearly everything no matter what. Others tend to release a lot of people. The exact same type of case with an almost identically situated defendant can easily generate vastly different bail outcomes from judge to judge.
The reasons for these differences are as varying as people themselves. Judges are given a wide degree of discretion when setting bail.
Also do not imagine that the prosecutor who handles the arraignment has more than a passing familiarity or interest in any particular case. In most cases, arraignments are handled by an assistant who will never see the case again.
The Defense Lawyer
Do not underestimate the importance of having the lawyer you want at the arraignment if possible. An enormous amount can be learned about a case by doing the arraignment, and the importance of the issue of bail can not be underestimated. The arraignment may seem like a few minutes, but they can be among the most important few minutes of the entire case.
The Queens County Waiver Policy
A number of years ago, the Queens County District Attorney's Office instituted a policy that was meant to "encourage" those who would eventually plead guilty in felony cases to plead guilty sooner. This policy has a direct impact on arraignments in Queens County.
Very generally, the policy requires any person charged with a felony in Queens to sign a written document at their arraignment temporarily waiving certain time requirements imposed on the prosecutors by the current law.
Accused defendants who refuse to sign the waiver are denied the opportunity to plea bargain and their cases are immediately presented to Grand Juries.
As a result of rigid and harsh sentencing guidelines imposed by the Legislature, failure to sign the waiver in a case in which it would be advisable can be a devastating mistake.
The nuances of the waiver decision could form the subject of an entire Continuing Legal Education Course for criminal defense lawyers (and therein is one of the difficulties of attempting to explain to someone who has been awake for 24 hours in the arrest to arraignment process).
Although of course there is no "one size fits all rule" with respect to the decision of "to sign or not to sign", a person who wanted to know the statistics would probably find out that the vast majority (probably on the order of 95%) of defendants sign the waiver (for better or worse).
In any event, the decision of "to sign or not to sign" is one that needs to be made based upon careful consideration with the lawyer and is a decision in which clients need to be extremely sure of themselves before they disregard the advice of their lawyer.
Click on the the following link for a more in-depth look at the Queens Waiver Policy. This link will take you to a relevant article from the Shalley & Murray web site.
Should I Hire a Lawyer for Arraignments?
Yes, if you can. At the arraignment the judge will make a decision that may well have lasting implications in the case. It makes sense, then, to have the lawyer who will be with the case later on, make the argument at the arraignment. Sometimes, a great deal can be learned about the case informally at the arraignment.
(In Queens, defendants charged with felonies will be called upon to make a legal decision that may have devastating consequences if they make the wrong decision. Therefore it makes even more sense to have your lawyer of choice there to help make this decision. For more about this decision click here.)
Hiring a lawyer and having a lawyer with you during the arrest to arraignment process can sometimes ease the stress on friends and family. Experienced criminal defense lawyers will usually be able to speak with the police and court staff in short order and be in a position to obtain reliable information about the nature of the charges, and the status of the accused in "the system". The lawyer can then explain this information and its implications to the accused.
If a lawyer is retained soon enough in the process, the lawyer might even be in a position to stop the police from interrogating the accused or even participate in any line-up.
If you do not hire a private lawyer before the arraignment, the accused will be represented by an appointed lawyer staffing the arraignment courtroom. The appointed lawyers in arraignments, however, will not usually be in a position to monitor individual cases as they make their way through the arrest to arraignment process.
The appointed lawyers will receive word of any given case only at the last minute once the accused has been fully processed by the police and court staff and the court papers have been formally generated.
The appointed lawyers staffing the arraignment courtrooms are often quite knowledgeable and helpful to those in the audience who have questions about relatives or friends who are making their way through the system, but the appointed lawyers are often quite busy interviewing other people who are "court ready". They will generally not be in a position to provide detailed, specific assistance to family and friends of anyone who is not yet "court ready".
One of the key advantages to having a private criminal defense lawyer for the arraignment, then, is from the perspective of friends and family who can have the process explained and monitored for them by the experienced lawyer. Having an experienced advocate available to interact with the police and court staff can be extremely soothing for friends and family. People who are unfamiliar with the process especially can have exaggerated ideas about what is going to happen to their loved ones and can benefit greatly from calm, rational explanations of the reality of the process.
To the extent that the lawyer is able to communicate with the accused during the arraignment process, the accused can also be provided accurate, reliable information about his situation. Information about his situation that comes from the police officer who arrested him is often extremely unreliable.
Finally, most experienced criminal defense lawyers realize that the earlier they become involved in any given case, the more they can do to protect their clients. In many cases, the police are able to obtain damaging statements from defendants long before the arraignment. If the attorney is involved soon enough, he can make it difficult if not impossible for the police legally to question the defendant.
Criminal Defense Lawyer Don Murray
The information here is provided by Don Murray, founding partner of Shalley and Murray. Shalley and Murray is a New York City Criminal Defense law firm with more than 20 years experience defending people accused of crimes in New York City.
Call 718-268-2171 to speak to an attorney at Shalley and Murray about helping with an arraignment or about taking on a case after arraignment.