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Arraignment in Criminal Court

An arraignment is a criminal hearing where the formal criminal charges against a defendant are read. The arraignment hearing gives the defendant an opportunity to learn of the criminal charges levied against him or her and to enter a plea as to those charges. Additionally, the defendants’ arraignment is usually when the defendant’s bail or own recognizance release is initially heard. Other issues that can be discussed at the defendant’s arraignment include whether or not the criminal charges can proceed due to a procedural error (demurrer) and what, if any, future court dates should be set.

Timing of Arraignment: The defendant has a right to be arraigned on the criminal charges without undue delay. This means that if the district attorney can arraign the defendant within in a few hours then the district attorney should do so. Unreasonable delay can result in the defendant being release from custody (jail) until the arraignment actually occurs. In any event, the arraignment is required to be held no later than two days after the defendant’s arrest if the defendant is in custody.

In Custody Arraignment: The defendant’s arraignment must be held within two calendar days if the defendant is in custody awaiting formal charges. Two calendar days means two court days. For example, if the defendant was arrested on a Friday then his arraignment is considered timely if his arraignment is held on Tuesday. However, if Monday is closed for a Court holiday and the defendant is arrested on a Friday then the defendant’s arraignment will be considered timely if it is held by Wednesday. When a defendant is in custody his arraignment is usually by video from the jail (video court).

Out of Custody Arraignment: The two calendar day rule related to arraignments does not apply when the defendant is out of jail. For misdemeanors, there is no statutory deadline for out of custody defendants. Of course, if the statute of limitations has expired then the district attorney may not file criminal charges against a defendant. In misdemeanor cases, the statute of limitations is usually one year. For felonies, the rule is that the defendant must be arraigned without undue delay. The statute of limitations in felonies varies greatly depending on the exact criminal charge.

Note: When the defendant bails out of jail before his or her arraignment the jail usually sets a new date for the defendant’s arraignment. This new date is usually at least a month from the arrest date because the two calendar day arraignment rule no longer applies when the defendant is out of custody.

Entry of Plea: The defendant’s arraignment is when the defendant enters a plea. The plea options are guilty, not guilty, no contest, and not guilty by reason of insanity. When the defendant is not represented by an attorney at the arraignment the court will enter a not guilty plea on the defendant’s behalf; thereafter, the court will set subsequent court dates within the defendant’s statutory right to a speedy preliminary hearing and a speedy trial. The defendant has a right to a short delay of his or her arraignment for good cause.

Note: At the arraignment the defendant will be informed of her statutory rights to a speedy trial and a speedy preliminary hearing. A preliminary hearing is a probable cause hearing that applies to felony cases. The defendant has a right to a preliminary hearing that commences within 10 court days of the defendant’s arraignment and a separate right to have the preliminary hearing concluded within 60 calendar days. A defendant in a misdemeanor case has a right to a speedy trial within 30 days of his arraignment if he is in custody and within 45 days if he is out of custody. A defendant may waive these speedy trial and speedy preliminary hearing rights and it is not unusual for defendant’s to do so.

Bail & OR Release: The issues of bail and OR release are also usually discussed at arraignment: Bail is a surety bond that is filed with the court. In essence, bail is an amount of money or property staked with, and held by, the court. The bail is returnable to the defendant so long as the defendant appears at the court-ordered hearings. If the defendant does not appear to court hearings as ordered then the defendant’s money or property may be forfeited. The idea behind bail is that the defendant is much more likely to attend court as ordered if he or she may have his or her money or property forfeited for failure to appear. Bail is usually handled through a bail agent who takes a percentage of the bail amount for handling the matter and for staking the majority of the bail amount with the court. An OR release (Own Recognizance Release) occurs when the defendant is allowed to remain out of custody on his or her promise to appear as ordered.

Bail Schedule: At arraignment, the judge will usually make an order for either bail or an OR release. The amount of bail ordered is usually equal to the amount set in the county’s bail schedule. For example, the bail amount for the crime of robbery is predetermined to be $100,000 in San Bernardino County's bail schedule. The judge is allowed to lower or raise the defendant’s bail if the judge believes there is good cause to divert from the amount of bail listed in the bail schedule. An OR release might also be possible where the charges are not serious or violent and/or where the defendant does not have a lengthy criminal record; however, whether or not the judge allows the defendant to remain out of custody without the need for bail is decided on a case-by-case basis and that decision is exclusively within the court’s discretion. Criminal defense attorney will usually make arguments on the defendant’s behalf for lowered bail or an OR release.

Demurrers at Arraignment: In some cases, the defendant may ask the judge to stop the district attorney’s prosecution at the arraignment stage. This is usually accomplished through the defendant’s criminal defense attorney who makes an argument for a demurrer. Essentially, a demurrer is an objection to the district attorney’s authority to prosecute based on several grounds, including: A violation of the statute of limitations (district attorney has not timely filed criminal charges); double jeopardy (the defendant has already been prosecuted for the conduct alleged by the district attorney); lack of jurisdiction (the court does not have authority to prosecute the matter in the court where arraignment occurs); and misjoinder (district attorney has joined cases or defendants when he should not have and the court cannot proceed due to this action). When a demurrer is granted the criminal proceedings are dismissed by the court. A successful demurrer petition at the arraignment is possible but rare.

New Court Dates: After the defendant enters a plea at the arraignment the district attorney and the criminal defense attorney will set subsequent court hearings (unless the defendant pleads guilty at the arraignment of the case is dismissed for some reason). The court dates that are set after the defendant’s arraignment depend on several factors, such as whether or not the case is classified as a felony or a misdemeanor, whether or not the defendant waived time, whether or not the defendant continued his arraignment, and more.


For more information on what happens at a defendant’s arraignment contact our criminal defense lawyers for a free consultation. Our criminal defense lawyers have successfully represented hundreds of defendants charged with misdemeanor and felony crimes in the Inland Empire. Call today!


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