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In Jail Before Your Trial? Know Your Rights.

By Vaidehi Mehta, Esq. | Last updated on

So, you’ve been arrested. It doesn’t mean you’ve committed a crime, of course. You’re innocent until proven guilty, and more people go to jail than get sent to prison after a guilty verdict. If you were sent to jail, you might have had to wait a little while before you got charged with some kind of crime. But even after you find out the charges against you, you may not be free to go on bail while you wait for your trial.   

How long will that take? Court proceedings are slow, and only take place during the eight-hour workday Monday through Friday, minus holidays. Only so much can get done, and there are often backlogs of defendants to get through. You can be held in custody legally, but you still have rights while you’re there. We’re here to walk you through those rights so you don’t get exploited by the justice system – or at least can do something about it if you are.

Pre-charge Detention vs. Pre-Trial Detention

Once you’re arrested, you don’t immediately have formal charges against you. That happens at your arraignment, which is where a judge will read the charges the prosecutor has decided to bring against you. Between the arrest and arraignment, you may be kept in custody, and we have a separate blog for your rights in that situation.

You may or may not get released after the charges are brought. After the prosecutor has brought charges, you may get formally released from physical custody in one of several ways. A bail could be set for you, meaning that you can go free if you can afford to pay it or secure a bond. You could get conditionally released such as with electronic monitoring, a supervised release, or home detention. If you’re really lucky, you could get released on recognizance. But in many cases, whether because your bail is set too high and you can’t afford it or because you’re too much of a risk to let go, you could be physically detained the entire time before your verdict is determined by the jury.

The practice of holding an accused person in custody while they await trial is usually called “pretrial detention,” though it can also be referred to as “preventative detention” or “being on remand.” Pretrial detention typically occurs after an individual has been arrested and charged with one or more crimes but before they have been convicted of any of the crimes. The criminal defendant is detained in a jail or prison facility before their trial, rather than being allowed to return to their community.

Why Pre-trial Detention Happens

This occurs when a judge determines that the individual poses a risk of fleeing, poses a danger to the community, or might obstruct the judicial process if released.  If you’re deemed a danger to the community or specific individuals, detention may be ordered to protect the public. If you’ve been charged with a particularly serious or violent crime or crimes, you may be detained because of the severity of the charges. Also, if there is any reason to believe you might tamper with witnesses, evidence, or otherwise obstruct the judicial process, that could be grounds for detaining you.

If this is not the first time you’ve been arrested, it may cut against you. If you have a history of failing to appear in court or have a significant criminal record, this may influence the judge’s decision to detain you. And if you’ve previously been released on bail but violated the conditions of their release, you’re even more likely to be detained the next time you’re arrested while you await trial.

Pretrial detention ensures that the accused appears in court for their trial and that the judicial process proceeds smoothly. However, it is also balanced against the presumption of innocence and the individual's right to liberty, which is why courts consider factors like the severity of the offense, prior criminal history, and ties to the community before making a decision.

Your Rights During This Time

Criminal defendants — that is, anyone who’s been charged with a crime — have certain rights protected by the U.S. Constitution, as well as the constitutions of whatever state you were arrested in.

Your “Miranda rights” include the right to remain silent and the right to an attorney. These must be read by law enforcement officers as soon as you’re taken into custody—starting with handcuffing. They have to read you these rights before interrogating you. If they don’t, then they cannot use anything you say to them as evidence in court. You can ask to speak to your lawyer at any time and refuse to speak otherwise.

What a lot of people don’t know is that the implications of Miranda rights often go further than allowing you to stay silent. State authorities (including the prison and the police) have an affirmative obligation to respect your right to counsel. In some jurisdictions, this has been interpreted to mean that they can’t take certain actions that might prevent or make it harder for you to access your lawyer if you want to. For example, they cannot restrict phone access or transfer you to a distant prison.

You’re Only Protected for the Charged Offense

One thing to note is that your right to silence and counsel is “offense-specific.” This means that it only applies to the offense that you’re being detained for in that instance. This is important to remember because when you’re arrested for one thing, there might be other criminal activities that the police may have reason to tie you to. If you answer their questions about those other charges without your lawyer, they can use those statements as evidence in court against you.

This distinction may sound insignificant, but it can lead to different outcomes for you as a defendant. One example would be if you were in jail awaiting trial for possession of a controlled substance. It turns out, there’s been a recent robbery that the police think you could be tied to as well. They get your cellmate to wear a wire and ask you questions about the robbery as well as the drug crime.

If you made incriminating statements about the drug crime to the wired informant, those statements would not be admissible against you in court, because they’re illegally coerced under the Constitution. However, any statements that you made about the robbery that you haven’t been arrested for or charged with could be used against you if the authorities decided to try you for robbery as well.

Have Your Rights Been Violated?

Our examples above are just some ways that the Constitution protects your rights while you’re detained and awaiting trial. There are many more nuances depending on your situation, and the specifics of what the police can do and what you’re entitled to depend on the jurisdiction. If you have questions about your situation or suspect that the police, prison guards, or prosecutor may have violated your rights while you were kept in jail, it’s best to contact a legal expert in your area to know your legal options.

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