After arrest and processing, you will be taken to a lower court for an initial appearance before a judge or other judicial officer (like a magistrate, district justice, or justice of the peace). At this time, the judge will review the charges to determine whether probable cause exists to hold you.
In addition to the probable cause determination, you are entitled to the following:
The initial appearance is not the same as an arraignment. “Arraignment” refers to the first appearance at which the defendant must enter a plea to the charge.
In many jurisdictions, neither a prosecutor nor a defense attorney attends the initial appearance, although the defense attorney, if one has been hired, is entitled to attend. While the initial appearance can proceed without defense counsel, it marks the point at which you have a constitutional right to an attorney, and if you don’t have one the court must appoint an attorney within a reasonable time. With the right to counsel also come limitations on police ability to elicit statements and conduct line-ups in the absence of counsel.
At arraignment, you have a constitutional right to representation by counsel.
Initial appearance: Despite its limited function, the initial appearance presents opportunities for your criminal defense attorney to begin advocating for you. Your attorney should:
Arraignment: In many jurisdictions, the arraignment is the time when the prosecutor and the defense attorney notify each other of their intent to offer certain evidence or to exercise certain rights. For example, at the time of the arraignment, the prosecution might present to the court statements that you made or evidence of a pre-trial identification. Also at this time, your defense attorney might request a preliminary hearing or demand that you have an opportunity to testify in the grand jury.
In many jurisdictions, the prosecutor may offer some sort of pre-trial diversion on minor charges.
Generally, under a pre-trial diversion program, if you agree to an adjournment of a year or so and stay out of trouble or complete other conditions, such as a drug or alcohol rehabilitation program or the payment of restitution, the charge against you will be dismissed and your record will be expunged.
While pre-trial diversion usually is a good deal, it is not always appropriate. A defendant usually has only one chance at pre-trial diversion, so accepting the program on one arrest disqualifies the defendant from diversion for a subsequent arrest.
Your criminal defense attorney can evaluate your situation and the strength of the prosecution’s case. If you are likely to be arrested again (e.g., a driver with a drinking problem, a serious marijuana smoker, a dedicated political protestor) and the prosecutor’s case is weak, you might be better served by fighting this case in the hope that victory will save the diversion for a future arrest on stronger charges. Also, some defendants, perhaps with the self-knowledge that they cannot stay out of trouble, would rather be done with the case with a fine or a brief jail sentence.
Your criminal defense attorney might consider undertaking one or more of the following tasks for an initial appearance or arraignment: