Arraignment and Probable Cause Hearing

Depending on whether the crime charged is brought federally or within a state jurisdiction, an individual accused of a crime could be faced with a few different pretrial proceedings. In a federal case, once a person is arrested, the Federal Rules of Criminal Procedure mandates a defendant be brought before a magistrate judge, or other lawful substitute, without unnecessary delay and be advised of his rights and the charges alleged. Most state jurisdictions mirror this requirement. A second type of hearing, as required by the Fourth Amendment of the Constitution, requires a preliminary hearing/examination to determine whether or not there is probable cause for the underlying arrest (pre-indictment) (Gerstein v. Pugh, 420 U.S. 107, 1975). While each of the pretrial hearings serves separate functions, it is not unusual if they are combined and heard simultaneously in some jurisdictions.

In addition, the U.S. Supreme Court has put a time clock on the probable cause hearing so that it is to be held within forty-eight hours for those arrested without a warrant (Riverside v. McLaughlin, 500 U.S. 44, 1991). Furthermore, in the federal criminal system, if the defendant is determined to be a danger or a flight risk and is detained after this initial appearance, the government then has ten days to seek a grand jury indictment or a finding of ‘‘probable cause’’ by a magistrate judge at a preliminary hearing. If the defendant is not detained, the government then has twenty days to seek grand jury indictment. Furthermore, even a finding of ‘‘probable cause’’ by a federal magistrate judge does not substitute for the Fifth Amendment’s requirement for indictment by a grand jury in a federal case. Thus, the case must still be presented to a grand jury. It should also be noted that states are not required to bring a criminal charge by a grand jury and therefore may generally proceed on a case with a finding of probable cause by a judge.

A preliminary hearing is the vehicle used to determine whether there is ‘‘probable cause’’ to believe that an offense has been committed and whether the defendant committed it. The proceeding does not establish guilt or innocence and does not preclude a subsequent grand jury from considering the same case for indictment. Therefore, even if a magistrate judge does not find probable cause to support the arrest and dismisses the complaint with a release of the accused, this does not prevent a prosecution for that same offense.

Subsequent to indictment or other charging document (for example, information), an arraignment must be held. Like the initial appearance in court after an arrest, the arraignment is merely part of the initial steps in the criminal process. At the arraignment, retained counsel represents the defendant or, if the defendant is considered indigent, court-appointed counsel is provided. In addition, the defendant is provided a copy of the charging document and asked to plead to the allegations. Normally, a defendant will initially enter a plea of ‘‘not guilty’’ to allow for time to receive and inspect discovery, investigate the charges, and consult with counsel. Finally, the arraignment is also significant in that it serves as a trigger for many procedural rules, such as the ‘‘speedy trial clock’’ (if the defendant is out of custody), discovery deadlines, and the multiple ‘‘notices,’’ as prescribed by the procedural rules such as insanity or alibi.

ROBERT DON GIFFORD

Cases and Statutes Cited

• Gerstein v. Pugh, 420 U.S. 107 (1975)
• Riverside v. McLaughlin, 500 U.S. 44 (1991)