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Arrest to Arraignment..

Posted by attorney Shari Goldsberry

Though a defendant has the right to represent himself, when it comes to criminal prosecutions, police investigations, and negotiating with a district attorney, what you don’t know can hurt you. For this reason hiring the right attorney for your defense is critical at the earliest stage possible of proceedings against you or a family member.

After an arrest , all defendants must be brought before a magistrate. The magistrate must inform the accused of the charges against him, his right to remain silent, and his right to an attorney. Bail may also be set at this time.

Bail is the court’s assurance that a defendant will appear at all required court dates. A defendant must either pay money up front to be refunded should the defendant comply with conditions imposed upon him—a bail bond—or make a promise to pay a sum of money should the defendant fail to comply with such conditions—a personal bond. The amount of bail a court sets depends on several factors, including the circumstances of the alleged offense, the safety of the victim and the community, the financial resources of the accused, and the court’s ability to be assured of the accused compliances with court orders. However, bail may be denied in cases involving capital prosecutions, a defendant with two or more prior felons, or if the defendant had previously committed an offense while on bail. Effective representation is necessary at this stage of the criminal proceedings to persuade the court to place a defendant under personal bond or to impose an affordable amount of bail. Or, counsel at this time may post an attorney bond, saving the defendant the need to hire a bail bondsman and much expense.

Defendants charged with felonies have a constitutional right to be charged through an indictment—a grand jury’s formal accusation of the crime. Though a defendant may be represented by an attorney at this time, neither the defendant nor his attorney have the right to address the grand jury. A suspect may only address the grand jury with the prosecutor’s approval or if subpoenaed by the grand jury. And though a suspect has no right to have his attorney present while testifying in front of a grand jury, a suspect may consult with his attorney outside the grand jury room before answering any question. He must also be warned of the suspected offense, the time and location of the suspected offense, and that he has the right to refuse to answer any question which may be incriminating. If subpoenaed by the grand jury, a suspect has the right to have an attorney appointed. A felony defendant may waive the right to a grand jury indictment and opt to be charged by information—the formal method of charging used for misdemeanor offenses.

Following formal charging, in all cases where the defendant’s punishment may include a term of imprisonment, an arraignment is to be held. This is the defendant’s first formal court appearance. The purpose of the arraignment is to hear the defendant’s plea, and to appoint an attorney to indigent defendants, if desired. The arraignment is also the time to insure the charging instrument accurately names the defendant. This is the only time the defendant may claim he is not the person so named in the indictment.

A defendant may plead guilty, not guilty, or no contest to the charges brought against him. After a plea of not guilty, a defendant has the right to a jury trial to determine both his guilt or innocence and the appropriate punishment if found guilty. A guilty or no contest plea will waive the defendant’s right to a jury trial on guilt or innocence. Generally, the punishment will then be assessed by the trial court with recommendations by the prosecutor based upon the agreement the defendant and prosecutor reached regarding the plea deal. The presence of an attorney at this phase of the criminal proceedings is necessary to negotiate with the prosecutor and to evaluate the risks of trial and the likelihood of success.

An experienced attorney can help at all stages of your defense—from persuading a judge to decrease bond or accept a personal bond to assuring your constitutional rights are scrupulously honored at police interrogations to noticing defects in charging instruments, and of course, to zealous representation at plea bargaining or trial. From the date of your arrest, the police and district attorney are building the case against you. The sooner you fight back and hire an attorney, the sooner she can start building your defense.

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