It’s the police who arrest you, but only the prosecutor can charge you with the crime. But prosecutors are often swamped with dozens of arrestees in a busy precinct. There’s usually going to be some amount of time that passes between when a person is arrested and when they’re charged with a crime. What are your rights during that period? Can you be prevented from going home, even if you haven’t been charged with a crime, let alone convicted?
We're here to walk you through the process from arrest to arraignment so that if you or a loved one is taken into police custody, you can know what your rights are at each stage and make sure you're exercising your optimal legal options.
Arraignments and Time Limits
After you get arrested, you typically have to wait for a process called “arraignment” to find out more about the charges you will be tried for. After your arrest, an “arraignment hearing” will be scheduled. During this hearing, you will appear in court (or sometimes in jail or via video conference), where a trial judge will read the formal charges that the prosecutor has decided to bring against you. The judge will inform you of your rights, and you or your lawyer will plea one way or another (e.g., “not guilty”) to the charges. This is also the moment where a bail might be set for your release, if it hasn’t already.
Arraignments do have to happen within a certain amount of time. The exact time depends on the state you’re arrested in. But arraignments can’t happen immediately after you’re arrested, since again, it’s not the police officer who will be arraigning you. They pass the case file off to the prosecutor, and it takes a little time for the prosecutor to decide what charges are appropriate or worth bringing. During that period, law enforcement can temporarily detain you. This is often further justified by the fact that access to the suspect is sometimes necessary for questioning or investigation. Of course, you’re more likely to be detained for a serious felony rather than a misdemeanor. You’re also more likely to be held if you have a prior criminal record. In any case, you can legally be kept in custody awaiting your arraignment, at least for a certain (short) time.
How Long Can You Be Held?
Most states allow prosecutors up to 72 hours after an arrest to file charges, although some states, like California, allow only 48 hours. If the prosecutor fails to bring charges within this time limit, the court has to release you. Failure to do that is a violation of your rights.
One thing to note is that even if prosecutors do have to release you because they didn’t meet the state’s required time limit, they can still bring charges after you’re released — they just can’t keep you detained.
Pending Charges
The charges that have yet to be brought after you’ve been arrested are often called “pending charges.” Whether you’re in jail after an arrest or you have already been let go, the police may still be interested in asking you questions to help the prosecutors decide on the charges. This means you’re still under investigation or in the “pre-charge” state.
Delaying Charges for 'Good Cause'
The law also allows the prosecutor to ask a judge for more time to bring charges if they can show "good cause."
Prosecutors might need more time with a pending charge in trickier cases or when they’re just busy, so they may have to release you while the charges are still pending. Reasons that the prosecutor could take a long time could include:
- Errors made by the police, such as a problem with the police report
- A mistake in their written charges
- Lack of probable cause for the warrant
- A violation of proper search and seizure protocols
- There are potential other suspects to round up
- There is not yet enough evidence connecting you to the crime
If the time period to hold you without charge is extended, you should be notified by law enforcement. If you aren’t being notified or you’ve been detained more than 48-72 hours, you should contact a criminal defense attorney. You may have a constitutional claim against law enforcement.
Charges Can Be Changed
At the end of the day, the prosecutor may decide not to follow through on bringing charges at all, for the above reasons or any other. The prosecutor isn’t usually obligated to bring charges. However, you can’t assume that just because you have been released after being arrested that the charges won’t be made eventually. The only time limits that prosecutors have in bringing charges if you aren’t detained are statutes of limitations. The statute of limitations is written into criminal law by state legislatures or Congress (if it is a federal crime).
Also note that the prosecutor may modify, add, or reduce charges from the ones initially suggested by the police. And even once the arraignment happens and the prosecutor has brought charges, those charges are not written in stone. The law doesn't prevent the prosecutor from altering the charges as more evidence becomes available.
Know Your Rights
The 6th Amendment of the U.S. Constitution, as well as similar amendments of state constitutions, gives you rights throughout the criminal process. Among other rights, this amendment provides the right to a fair and speedy trial and the right to be notified of the nature and cause of criminal charges against you.
Right to Counsel Is Limited
Importantly, the 6th Amendment also affords you the right to legal counsel at every critical stage of the criminal case. This right means that you can ask not to speak without your attorney present, and if you cannot afford an attorney, you can invoke your right that an attorney be provided to you free of charge.
But what is considered a “critical stage”? Are you entitled the right to counsel before arraignment? Many would consider that 6th Amendment Rights attach only once you have been formally charged, such as during an arraignment, preliminary hearing, or via indictment or information. In other words, you may not have the right to get a free attorney before you’ve been charged.
Right to Remain Silent Applies
However, it is critical to remember that you always have the right to speak only with an attorney present or to remain silent. These are your 5th Amendment rights, or “Miranda rights.” These apply after you have been arrested and even before there have been any charges or arraignment. They apply whether you are in custody pending charges or have been released pending charges.
Final Takeaways
Finally, remember that the period before charges are formally made against you is not the same as your rights after you get charged. You definitely have significant constitutional rights after your arraignment and being notified of the charges against you, which you can read more about in our blog here.
If you've been held without getting charged longer than the legal limit in your state (a couple of days) or you think your rights have otherwise been violated, it’s important to get in touch with a criminal defense lawyer in your area immediately for legal advice specific to your situation.
Related Resources:
- More on How Long Can You Be Held Without Charges (FindLaw's Learn About the Law)
- Is 'Pleading the Fifth' an Admission of Guilt? (FindLaw's Law and Daily Life)
- Trial Rights (FindLaw's Learn About the Law)
