New York City Arraignments Contents
What an arraignment is not
Sometimes people are fooled into
believing that because an arraignment happens in a courtroom with a
judge, prosecutor, and defense attorney that an arraignment is somehow a
trial or hearing. This is not the case. Sometimes it is
easier, then, to consider what an arraignment IS NOT before you try to
figure out what it IS.
- An arraignment is not a trial or a
hearing.
- No witnesses are called at an
arraignment.
- No evidence is heard 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).
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What is an arraignment?
From the accused's point of view, an
arraignment is really about one thing, and one thing only - whether or
not the judge will set bail, and if so, how much. OK that's really
two things. But the point is that although other things happen at
an arraignment, the most obvious and significant thing is the decision
to set or not set 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, the accused
is held in jail until one of the following things happens:
- The case is over
- Someone makes the bail by giving New
York City the amount of money to hold until the case is over.
- The bail is reduced by another judge
(and then paid)
- If the case is a misdemeanor, the case
is not "converted" to an information within 5 days of the arraignment
(meaning in most cases that the complaining witness has signed the
complaint or the lab report is filed in drug cases)
- If the case is a felony, the case is
not formally indicted within either the statutory 188 hour (6 day)
period or whatever "waiver" period
is set at arraignment
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). 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. To find out more about bail bonds, click here to be taken
to our page just about bail bonds in New York City.
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.
Also at the arraignment, the accused will
be informed (through his criminal defense lawyer) of the precise charges
against him. Often times the police will exaggerate or understate
the actual charges against a person during the arrest to arraignment
process. Some officers, it seems, appear to delight in providing
misinformation to the people they arrest. People who are
ultimately accused of B felony drug sales for which they face 8 1/3 to
25 years in prison are often told, for example, that they are simply
being arrested for a misdemeanor or that it will be no big deal.
Sometimes people who ultimately are charged with misdemeanors are told
that they are being charged with ultra-serious felonies for which they
face decades in jail.
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 never believe
anything a police officer tells him in the time period from arrest to
arraignment. The incredible level of misinformation and downright
lies told to people accused of crimes before they meet with their
lawyers for the first time is frankly astounding.
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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 be 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.
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.
Notices
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 form of notices are as follows:
710.30(1)(a)
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.
Realize that statement notice is not read
to the judge in order to alert the judge to the accused's cooperative
attitude with police. The prosecutor reads the statement to the
judge to alert the judge to set higher bail than might have been set
otherwise. Usually, a statement from an accused is something that
makes the prosecution's case better.
710.30(1)(b)
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
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. Other
types of identification procedures are "show-ups" 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).
190.50
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 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.
450.10
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 in 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 sounds.
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. Most of the time it
is purely entertainment for the family and friends of the defendant.
Arraignment is a serious business and it is an incredibly 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 wants.
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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 so serious that if an accused
is actually convicted, he faces life in prison (or possibly the death
penalty).
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.
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 charges
- voluntarily surrendering at the
request of the police is also considered powerful evidence of a
defendant's willingness to answer the charges
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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 considerable debate as
to whether the CJA recommendation is a significant factor to 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.
The Judge
People need to realize that 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 deeply.
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 his 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. To many, however, it
is something of a grind.
They 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 reasons for these differences are as
varying as people themselves. Judges are given a wide degree of
discretion when setting bail. Setting bail on lots of cases is
usually the hallmark of an inexperienced judge. Inexperienced
judges tend to be more worried about problems that might be associated
with having released a particular defendant. It is considered a
"safer" political decision to set bail on a person than to release a
person.
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The
Prosecutor
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 a junior assistant (and possibly and experienced supervisor)
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.
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The Queens County Waiver Policy
A number of years ago, the
Queens County District Attorney's Office started a new 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.
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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 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
"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.
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