Arraignment

The term "arraignment" is habitually misused by courts and commentators when referring to another pretrial proceeding, the "initial appearance." The initial appearance is the proceeding at which an individual first appears before a judicial officer following arrest on a criminal charge. Unlike the arraignment proceeding—wherein a defendant is formally advised of charges contained in an indictment or information and asked to enter a plea—the purpose of the initial appearance is to have a judicial officer inform the defendant of the basis for the arrest, advise the defendant of her rights, and, if necessary, appoint counsel. Also unlike arraignment, defendants are not normally required to enter a plea at their initial appearances. In the federal system, the initial appearance is governed by Federal Rule 5(a), which requires arrested persons to be brought before the nearest available judicial officer "without unreasonable delay." Similar procedural rules exist in state criminal systems. Although frequently mislabeled as an "arraignment," even by Justices of the U.S. Supreme Court, it was this initial appearance, and not an arraignment, which was the subject of Mallory v. United States, 354 U.S. 449, 453–54 (1957) and McNabb v. United States, 318 U.S. 332 (1943).

If a defendant is arrested without a warrant, the bulk of an accused's initial appearance will often be devoted to the question of whether probable cause existed to justify the arrest. To justify a defendant's continued detention after a warrantless arrest, a judicial officer must approve the police officer's decision to arrest shortly after the arrest occurs (Gerstein v. Pugh, 420 U.S. 103 (1975)). Often this will take place at a defendant's initial appearance before the court, although technically the probable cause determination serves a purpose distinct from that of the initial appearance.

The probable cause proceeding is not an adversarial one. Defense counsel may appear with the accused at a Gerstein proceeding, but the Constitution does not require it. Neither must the prosecutor produce witnesses to provide evidence in support of the criminal allegations. Rather, the prosecutor's evidentiary obligations at this very early pretrial proceeding are satisfied once a law enforcement officer with knowledge of the investigation swears to the truth of the criminal allegations under oath and in the presence of the judicial officer. If the substance of those allegations amount to probable cause to believe that the arrestee has committed a criminal act, the prosecutor will have met her burden to justify the arrest. To satisfy the Fourth Amendment's requirement of a "prompt" resolution of this probable cause question, such an appearance and determination must take place as soon as reasonably feasible, but presumptively no later than forty-eight hours after arrest (County of Riverside v. McLaughlin, 500 U.S. 44 (1991)).