Criminal Law

What Happens When You're Arrested?

By Micah Schwartzbach, Attorney
After arrest usually come several steps, including going into custody, being booked, and appearing in court.

Getting arrested is an often stressful ordeal triggering a series of events that are part of criminal prosecution. Read on for information about the immediate aftermath of an arrest.

Going Into Custody

An encounter typically meets the legal definition of “arrest” when the police place the suspect in custody for some period of time, however short. In many cases, the arresting officer then transports the suspect to the police station. In most states, though, officers do have the option of arresting, citing, and releasing someone they’ve arrested for a misdemeanor. In that situation, the suspect is free to leave but is under an order to appear in court at a later date.

Being Booked

In the typical arrest scenario, where the police have taken the suspect to the station, booking comes next. Police personnel enter into their system information related to the arrest and the arrestee. They usually photograph and fingerprint the suspect. In many states, personnel must also collect a DNA sample from the suspect—at least where the arrest is for a serious offense, like a felony. (The sample usually comes from a swab of the inner cheek; the DNA sample then goes into a database.) The suspect often gets a chance to use the phone after booking.

Bailing Out and Staying In

Bail is normally set according to a bail schedule, which lists out crimes and their corresponding sums. Judges typically have the power to later raise or lower this bail amount.

Some suspects are able to post bail shortly after going into custody—people in this situation, like cited-and-released arrestees, get a subsequent court date. If the alleged crime is so serious that there’s no bail, or if bail is too high to meet, the suspect stays in custody (often the county jail). The suspect remains there at least until the first court appearance.

The traditional rules and procedures around bail in the United States are, however, beginning to change. States are slowly trending toward severely limiting—if not altogether abolishing—the system of cash bail. They are of the perspective that tying liberty to financial resources is fundamentally unfair and disproportionately affects the poor. New Jersey, for one, virtually eliminated the traditional bail structure in 2017. The state decided to replace it with a system whereby risk assessment—not money—determines whether someone should be in or out of custody as the case winds through the courts.

The Complaint and First Appearance

Most police arrests occur without warrants, meaning that the prosecution first gets involved after the arrest. In this typical situation, the prosecutor reviews the police report and any other available information in deciding whether to file criminal charges through what’s normally called a “complaint.” Once the prosecution files that complaint, the arrestee goes from suspect to defendant.

In many states, the first appearance is called the “arraignment.” For defendants who have bailed out of or were otherwise released from jail, the first appearance is normally at least several days after the arrest. For defendants who are still in custody, this appearance must happen much earlier—typically within a couple days.

At the first court appearance, the magistrate (the official acting as judge) often has to do a number of things, including:

  • informing the defendant of the charges
  • notifying the defendant of the right to counsel and beginning the process of appointing a criminal defense lawyer (if the defendant wants but cannot afford one), and
  • addressing the defendant’s custody status. Depending on the rules, a magistrate might leave the bail amount as it currently sits, increase it, decrease it, or release the defendant without bail. (Getting out of jail without bail is normally called released on one’s “own recognizance.”) The magistrate may also impose bail conditions.

Next Steps

Where a criminal case goes from here depends on the seriousness of the charge, the facts of the case, and the rules of the jurisdiction. One way or another, though, the court procedure must allow for a magistrate’s determination as to whether there’s probable cause to believe that the defendant committed the charged crime. (Without such a determination, the case normally cannot continue.) Also, the defendant will have to enter a plea at some point, the first plea entered often being “not guilty.”

For information about your situation, including your options, talk to a lawyer. The rules and procedures depend on the jurisdiction your case is in—your state might have different or additional steps than what’s listed above. You’ll want to talk to an attorney familiar with cases like yours in your court system.

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