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What Happens At Federal Arraignment in NYC?

What Is The Arraignment?

The federal arraignment is a court hearing after an indictment, complaint, or criminal information is filed in which the defendant is informed of the criminal charges filed and enters a plea. This is the first appearance by the defendant in federal court after the arrest.

The arraignment is not a trial. It is simply the proceeding required by the law

where the accused is informed of the indictment and pleads to it. If the defendant has not been indicted, the arraignment triggers the defendant’s Sixth Amendment right to an attorney. Every defendant about to be arraigned will have an attorney, whether privately retained or assigned by the court. Some courts allow lawyers to represent a defendant at an initial appearance only. It is called representation for arraignment purposes only.

Pre-Arraignment Detention.

If a defendant has been arrested on a criminal complaint without a warrant, the court has to make probable cause determination at the arraignment. The law requires that this determination be made quickly, within 48 hours, if the defendant is to be detained pre-trial after a warrantless arrest. So, most arraignments in federal courts actually happen on the day of the arrest or on the following day.

How Quickly Will The Defendant Be Arraigned

Under Federal Rules of Criminal Procedure 5(a)(1), defendants arrested in the United States must be arraigned “without unnecessary delay” before a magistrate judge or “a state or local judicial officer.” Unless the law permits otherwise, a defendant arrested outside the United States may not be arraigned before a state or local judicial officer. In some jurisdictions, if a defendant is secretly cooperating with the government after he was arrested, the arraignment can be delayed through a special waiver of speedy arraignment.

The question is what is “unnecessary delay”. This can be a very contested issue and courts will examine relevant facts to make that determination. However, there are some delays that can be excused by justifiable circumstances. There are serious issues involved where the defendant is arrested and makes a confession to law enforcement prior to his arraignment. The question courts dealt with is whether the confession could be coerced by delaying the arraignment and whether it should be suppressed. Today, confessions elicited after unnecessary delay exceeding six hours may be suppressed.

Confessions made where the arraignment has been delayed for more than six hours are still admissible if the delay is reasonable based on the time and distance required to present the defendant to a judge. In one case, a confession was admissible even after a delay of more than two days because the arrest happened before a weekend, and there was no long, hostile, or coercive interrogation.

What If the Defendant Is Arrested In Another Jurisdiction

A defendant who is arrested outside of a district where the warrant has been issued must be arraigned without unreasonable delay in the district of arrest before he is removed to the district of prosecution. Fed. R. Crim. P. 40(a). All the rules applying to arraignment will apply in this case as well, including a detention hearing, during which the issue of bail is decided.


One very important issue resolved during the federal arraignment is bail. The judge has several options when it comes to setting bail. Court may order the release of the defendant on personal recognizance or upon signing an unsecured appearance bond”, release the defendant if there are sufficient assurances that the defendant will return to court and will not harm others, detain the defendant for up to 10 days, excluding weekends and holidays, to allow the government to take the defendant into the custody in some other proceedings, or order permanent detention based on the risk of flight and/or dangerousness.

If your loved one has been arrested by federal law enforcement, you will have several hours to retain private counsel before the arraignment. Because the main goal is secure the defendant’s release, it is always beneficial to be proactive and reach out to the prosecutor before the arraignment to discuss the bail package and come to court prepared.

Call our experienced federal defense lawyers to day to speak about your situation.

Can The Government Appeal In Federal Criminal Cases?

The government has more rights to bring interlocutory appeals in federal courts compared to defendants. Interlocutory appeals are not the same as appeals after trial. These are appeals of a ruling by a trial court, which are made before trial. The government has an advantage because, unlike the defendant, the prosecution usually is not allowed to appeal an adverse verdict after trial. However, under 18 U.S.C. ß 3731, the prosecution is allowed to appeal from the following orders: (1) orders dismissing an indictment or information or granting a new trial, (2) orders suppressing or excluding evidence or requiring the return of seized property and (3) orders granting the defendant bail or denying a motion for revocation or modification of the conditions of bail.

Orders Granting Dismissal or a New Trial

Government’s ability to appeal dismissals is not unlimited. These appeals are generally subject to the condition that they will not interfere with the double jeopardy clause of the United States Constitution.

The law also allows the prosecution to appeal the dismissal of individual counts in an indictment or information. There is a complicated question of whether the dismissal of only part of a count may be appealed. This issue was debated by various Circuit Courts until the Congress adopted the 2002 changes to the law that state that the government may appeal the dismissal of “one or more counts or any portion of a count. This is now the established law.

Orders Suppressing or Excluding Evidence

The government may also appeal orders which suppress or exclude evidence or order the return of seized property if these orders are not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information. In cases where a defendant goes to the second trial after the first trial ends in mistrial, the prosecutor may appeal the pretrial denial of a motion for reconsideration of evidentiary rulings made during the first trial.

The government is also allowed to appeal a conditional order of suppression or exclusion. In the same fashion, the prosecutor may appeal court ruling that the testimony of the government’s immunized witnesses would be excluded unless the government granted same immunity to defense witnesses.

If the prosecution wants to appeal an order of suppression or exclusion, it has to certify they are not doing that in order delay the process. The government also must show that the evidence, which was excluded is a substantial proof of a fact material in the proceeding.

Orders Suppressing Wiretap Evidence

Under federal law, the government is allowed to appeal an order granting a motion to suppress wiretap evidence. Under the same law, the government is also allowed to appeal the denial of an application for an order of approval pursuant to the emergency wiretapping provision of 18 U.S.C. ß 2518(7).

Bail Orders

Prosecution has the right to appeal court orders, which grant the defendant’s release or deny a motion for revocation of, or modification of the conditions of, a decision or order granting release. On the other hand, the government is not allowed to appeal from an order of the district court remanding the case to a magistrate judge for the determination of the conditions of release, because such an order is not final.

Classified Information

Under the Classified Information Procedures Act (“CIPA”) the government is authorized to file pretrial appeals from district court orders, which allow the disclosure of classified information, or which impose sanctions on the government for nondisclosure of classified information or which refuse to grant a protective order sought by the government to prevent the disclosure of classified information. This law does not authorize the government to appeal from a district court’s order, which allows the defendant to raise a “public authority” defense, where it was unclear that the court’s order would authorize the disclosure of classified information.


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