When someone
is arrested by the police, a specific series of
events follows. The police must follow legal
procedures during the actual arrest process, and at
many other stages along the way to actually placing
a suspect in jail.
- An
arrest occurs when police take you into custody
and is complete the moment you, as the suspect,
are no longer free to walk away from the
arresting officer.
- In
1966, the U.S. Supreme Court ruled in Miranda v.
Arizona, that individuals who are under arrest
for suspicion of having committed a crime have
certain rights that must be explained to them
before any questioning may occur. The rights are
designed to protect your right to be free from
self-incrimination under the Fifth Amendment to
the U.S. Constitution. There are five different
rights, known as the "Miranda Rights":
- You
have the right to remain silent and to
refuse to answer questions.
- Anything you do say may be used against you
in a court of law.
- You
have the right to consult an attorney before
speaking to the police and to have an
attorney present during questioning now or
in the future.
- If
you cannot afford an attorney, one will be
appointed for you before any questioning if
you wish.
- If
you decide to answer questions now without
an attorney present, you will still have the
right to stop answering at any time until
you talk to an attorney.
Note: Miranda rights must only be
read when an individual is in police custody
and is under interrogation. Therefore, if
the police stop you to give you a traffic
ticket, and you start explaining to them why
you were speeding, you cannot later protest
that you were not read your Miranda rights.
While the police may have been
"interrogating" you in a certain sense, you
were not in police custody unless your
freedom of action was curtailed to a degree
associated with formal arrest; see your
state laws for a definition of police
conduct that would be associated with formal
arrest.
- If you
are stopped by the police, they may frisk you by
performing a "pat-down" of your outer clothing
in order to determine if you are concealing a
weapon. Later, after your arrest, they may
perform a full-blown search of your person and
immediate surroundings to ensure that you do not
have any weapons, stolen items, contraband, or
evidence of a crime. If the police take
possession of your car, it may be searched as
well.
- In many
jurisdictions, you have the right to make a
telephone call, or calls, once you are placed
into custody. In some states, you are only
allowed to call someone in order to secure a
lawyer or to arrange for bail, although you may
be able to call a family member or friend to
help you make those arrangements. Generally, you
are not entitled to make a telephone call until
after you have been booked.
- The
police may take any personal property or money
that you have with you and put it in a safe
place after performing an inventory. The police
will ask you to sign the inventory and, after
reviewing it, you should do so if you agree with
the contents of the inventory.
- Once
you are arrested, you will be booked. During the
booking procedure the police will ask you for
basic information about yourself (such as your
address and birth date), and fingerprint and
photograph you. You may also be asked to
participate in a line-up, give a handwriting
sample or do similar things.
- If you
are detained but not booked within a reasonable
period of time (usually several hours, or
overnight) your attorney may go to a judge and
obtain a writ of habeas corpus. A writ of habeas
corpus is an order issued by the court
instructing the police to bring you before the
court so that a judge may decide if you are
being lawfully held.
- Once
you are arrested by the police, the information
will be provided to the appropriate prosecutor's
office. The prosecutor will then review the
information before making an independent
decision as to what charges should be filed.
Note: If you have been arrested for a
felony, a prosecutor may enlist the services of
a grand jury to review the available information
in order to determine what crimes you should
actually be charged with.
- If you
are placed in custody, you have the right to
promptly appear in court to hear the charges
filed against you and enter a plea. This usually
means that the prosecutor must decide within
seventy-two hours which charges, if any, will be
filed. A prosecutor is not bound by the initial
charge decision, but may later change the crimes
with which you will be charged once more
evidence is obtained.
Note: The required time in which a
prosecutor must make a charge decision varies
from jurisdiction to jurisdiction. While many
state laws require the decision to be made
within seventy-two hours, other states, such as
California, require that the decision be made
within forty-eight hours after you are taken
into custody.
- You
will have an appearance in court called an
arraignment at which point the charges against
you will be read and you will be asked whether
you plead guilty or not guilty.
Note: A third possible type of response
to an indictment is that of "nolo contendere" or
"no contest." Nolo contendere is not strictly a
plea, but means that you do not contest the
charges made by the government. The plea of nolo
contendere cannot be used in other aspects of
the criminal trial as an admission of guilt, but
can be used only in this phase as an implied
confession of the specific offense charged and
an admission of the facts stated in the
indictment. A plea of nolo contendere is only
accepted by a judge if they feel that it is
being made voluntarily and intelligently.
- If you
are placed in jail, you may be able to get out
prior to your trial if you "post bail." Bail is
money you pay to the court in order to ensure
that you will appear in court when told to do
so. If you do appear as required, the bail will
be refunded to you once the case against you is
concluded. If you do not show up, the court
keeps the money and can issue a warrant for your
arrest.
- Bail may be paid in cash or in a cash
equivalent. You may also be allowed,
depending upon the circumstances, to post a
bond. A bond is a guarantee of payment of
the full bail amount should the need arise.
In other situations, you may be allowed to
be "released on one's own recognizance."
This means that the payment of bail is
waived on condition that you appear in court
when required. This is generally only used
in crimes that are minor in nature or where
the judge is of the opinion that you are a
trustworthy individual who is unlikely to
flee the jurisdiction.
- Not
every arrested individual is entitled to
bail. In particularly heinous crimes, or
where there is a risk that the defendant
will flee the jurisdiction or harm members
of the public, bail may be denied and the
defendant will be kept in jail as a
"pre-trial detainee." You may also be
considered a "pre-trial detainee" if you are
unable to post bail for your release.
- The
judge is responsible for setting your bail.
In many jurisdictions, there is a pre-set
schedule listing the bail amounts for
particular crimes. In other situations, bail
may be determined on a case-by-case basis.
The Eighth Amendment to the U.S Constitution
requires that bail not be excessive.
Disclaimer
This
publication and the information included in it are
not intended to serve as a substitute for
consultation with an attorney. Specific legal
issues, concerns and conditions always require the
advice of appropriate legal professionals.
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