Below are some guides on pre-trial issues that you or your loved one may be facing.
Although this web site may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. Read our full disclaimer here.
What is an arraignment?
Your arraignment is usually the first court appearance after being arrested or charged with a violation. If you’ve been arrested and held in jail, you will be taken to court for arraignment in front of a judge. If you have not been held in jail, you must come to court for your arraignment on the date that is given to you when you are arrested/charged, or that is given in a mailed notice.
What happens during arraignment?
At arraignment, a prosecutor will say what charges are being brought against you and make a recommendation to set bail or remand (held in prison without bail). They will also describe how the arrest happened according to the arresting officers. You will have to enter a plea at arraignment in response to the charges that are read to you. The prosecutor may offer a plea bargain or a diversion program if you enter a guilty plea or no contest plea.
Your lawyer will have a chance to reply to the prosecutor’s arguments. After hearing the prosecutor and your defense lawyer, the judge will set bail conditions. The judge may also order a temporary order of protection at arraignment. If you are served with a temporary order of protection, you will have to stay away from the person it names. Usually this is a witness or alleged victim.
Will I be alone at arraignment?
In some states such as New York, you will be represented by a lawyer at arraignment. In these cases, even if you intend to hire your own lawyer later but haven’t had the chance, you can still use a public defender for arraignment.
Aside from your lawyer, the prosecutor, and court employees, arraignment courts are usually busy with lots of people waiting to be arraigned. Typically arraignment courts are open to the public, so anyone who has accompanied you to court may wait with you and watch.
What happens after arraignment?
At the end of an arraignment, you should know what is happening next. If you are being remanded, you will return to jail. If you are ‘released on recognizance’ or ‘R.O. R’d’, you do not have to pay bail and will not be held in jail until your next court date. If you are being released on bail, the amount of bail and conditions will be set by the judge and you will have a court date set. Your lawyer should inform you if the court date changes for any reason. If you have been issued a temporary order of protection, the judge will read you the specific instructions for who you need to stay away from and what kind of contact is not allowed.
Do I need to do anything to prepare for arraignment?
No, you do not need to prepare or present evidence at arraignment.
Resources on Arraignment:
Driver’s License Suspension
***Our Drivers License Restoration App can help you reinstate your NY or MA drivers license. Check it our here
What is a driver’s license suspension?
A driver’s license suspension is when your ability to drive is taken away. Driver’s license suspensions can be temporary (definite) or long-term (indefinite).
If your suspension is temporary, you will be told when you can drive again. You may have to pay a fee to be able to drive again.
If your suspension is long-term, you will need to wait to be told whether and how you can remove the suspension.
Why is my driver’s license suspended?
Your driver’s license may have been suspended because of serious or multiple traffic violations, such as drunk driving, too many parking tickets, or lack of car insurance. More long-term suspensions may also have to do with issues like not paying child support or not paying tax.
How do I know if my driver’s license is suspended?
If you are at an arraignment, the judge will tell you that your license is suspended. Your license will immediately be suspended, and you will be asked to turn your license in. If the decision is not made at the arraignment, the DMV will send a notice to the address they have on file.
What happens if I drive on a suspended license?
Driving with a suspended license may be a criminal offense in your state, which means that a conviction would appear on your permanent criminal record. The consequences of having a criminal record could negatively impact your eligibility for employment opportunities and housing. In some states, like New York, a conviction for driving with a suspended license carries the possibility of jail time and fines.
How do I get my driver’s license reinstated?
For definite suspensions, you may have to pay a termination fee and wait to receive a new driver’s license before you can drive again. You should consult with your state’s Department of Motor Vehicles (DMV) to make sure you are following the necessary steps for reinstatement. You may have to request and receive approval from the DMV before you can get a new driver’s license. For indefinite suspensions, you may have to perform specific actions before the DMV will reinstate your driver’s license. If your license is permanently revoked, it may not be possible to get it reinstated.
Resources on Driver's License Suspensions:
What is drug court?
Drug courts are an alternative to incarceration programs. The goal is to have defendants who experience struggles with substance use avoid interaction with the criminal justice system. Drug court is a longer-term care program; so in many cases, you may be involved in the process for a longer period of time than if you were to go through criminal court or a period incarceration. You are often able to have your records expunged at completion of the program.
Am I eligible for drug courts?
In most states you may be eligible for drug courts if you have been charged with a nonviolent drug related offense and struggle with moderate to severe substance use. If you fit these qualifications your lawyer can suggest this in court. The prosecution, defense, and court may come to an agreement about your eligibility for the program.
If you are eligible, you will have to option to accept or decline participation in the program. There are protocols that you must follow as part of your participation in the program.
What are the protocols?
You will informed of the requirements once you start your screening with a drug court coordinator. The program can take anywhere from 1-2 years. Some of the requirements are that you may be subject to random drug and alcohol testing, a curfew, mandatory court sessions and evaluation meetings, and must allow a probation officer to enter your home.
What happens if I decline participation in the program?
Failure to participate may risk your ability to join in the program and can trigger the criminal legal process that can lead to incarceration.
What does the drug court process look like?
If you are approved for the drug court, you will take part in a treatment program. This often entails counseling, consistent drug and alcohol tests, random house visits, maintaining employment or applications for employment, and sometimes curfews. As you move through the phases of drug court you will gain more independence and responsibility.
What are phases of the program?
The initial phase can look like attending multiple meetings a week, receiving physical and emotional rehabilitation for your substance use. This also includes consistent check ins from your parole officer. The second phase may include unannounced home visits, counseling, and educational programs around substance use. The third phase will mainly focus on reentry into the community and preventing relapse. If you violate rules of the program, depending on the severity of the violation, it can lead to another arrest. If you are able to follow these rules and guidelines throughout the program, you will graduate faster and gain more independence.
What happens if I violate a requirement of drug court?
Testing positive for one of the drug screenings, not showing up to a meeting that is a part of your treatment plan, or another arrest, is an example of a violation. Violating some requirements can increase the duration of your participation in the program or will bar you from continuing to move forward in the program.
What are the benefits to the program?
Upon completion of the program participants can have their charges dismissed, lessened or may receive a reduction in their sentence. Joining the program can enhance the participant’s quality of life by empowering them to beat their substance use disorder.
Are there juvenile drug courts?
There are juvenile drug courts that focus on treatment oriented methods with familial involvement and spotlights other issues that may surround substance use in young people. Currently, there are over 140 running in the United States.
How do I find a drug court near me?
The National Drug Court Resource Center has an interactive map that shows programs by court type, state, and county. https://ndcrc.org/interactive-maps/.
What is Family Court?
A family court is a court that hears cases involving family law, family disputes, and matters of juvenile delinquency. A family court can oversee cases that involve divorce, domestic abuse, familial disputes, neglect, and other issues.
What are the different types of court hearings for non criminal-matters?
The main types of court hearings are fact-finding hearings and dispositional hearings. A fact-finding hearing consists of the applicant being sworn in, the applicant being questioned by the plaintiff and the judge questioning the applicant. Then witnesses, those who are involved with the applicant and event in some form, are sworn in for questioning. The fact-finding trial can last half a day to around a week. Then, a petition will be given to a judge. There will be a dispositional hearing where the judge will decide whether the petition is verifiable and whether legal action should take place.
Is there a jury in family court?
There is no jury in family court. All cases are overheard by a judge. You have the right to a lawyer and can hire a lawyer of your choosing. If you cannot afford a lawyer the court can assign one to represent you.
What are the different types of cases in family court?
If a parent or guardian wants to put a child in foster care and turn over their rights to take care of that child they can have the court look over that decision and approve it. After a month of a child being left in foster care, a hearing will take place. This is called an Approval of Foster Care Placement otherwise known as the L petition.
If a child has been in foster care for a year, there will be a foster care review with the family court, where the court decides the future living placement of that child. This is called Foster Care Review or a K petition.
If a child has been removed from their home due to neglect, abandonment, mental pervasive mental illness then Social Services can file to dissolve the parent’s rights to the court. This is called a Permanent Neglect Petition or a B petition.
A guardian or social services can bring a petition to the court to decide who will support the child and who will pay funds for child support. The judge decides how much will be paid in support and what consequences there will be if one does not pay the support. This is called a Support petition.
A family offense petition or an O petition is filed when a person causes a disturbance in the home. A judge can file an order that insists the person cannot harm or cause violence to members of the family. If the order is broken that person can be removed from the home.
An order of protection can force a person to stay a physical distance from another person and limits or forbids contact. If a family court order of protection is violated, the defendant can be arrested by police and charged with a misdemeanor or felony. In New York state, a conviction can lead to jail time.
How do I appeal a case?
In cases of child custody, child support, spousal support, and property division if a person believes that the decision from the court is wrong, one can appeal the decision. A lawyer who advises their client can notify the court of the decision to appeal. To appeal a case one would have to decide within 30 days of the final decision by the courts. If one does not file an appeal within 30 days, they will not have another opportunity to appeal.
What resources are available to people in family court?
Court based help centers provide free information about court and legal information. Forms, petitions, and other information can be found at the New York State Unified Court System website.
- https://ww2.nycourts.gov/courts/6jd/tompkins/family/you.shtml#:~:text=There%20is%20no%20 jury%20in,determine%20what%20has%20been%20proved.
Hiring an Attorney
What to consider when hiring an attorney:
There are many things to consider when deciding whether to hire a private attorney to represent you or a loved one in a criminal case. Everyone who is facing criminal charges where jail or prison is a possible consequence has a right to have an attorney represent them.
Isn't everyone entitled to a free attorney from the public defender's office?
The public defender only represents people who cannot afford to pay for a private attorney. To determine who is eligible for the public defender, many jurisdictions have people fill out a form that asks about their income, assets, and expenses.
Should I hire a private attorney even if I qualify for the public defender?
Ultimately this is question only you can answer. Many people feel like the public defender's office has too many cases or clients to spend time on their individual case, but in reality the attorneys in the public defender's office are passionate about defending their clients.
Resources on Hiring an Attorney:
Posting Bond or Bail
In order to stay out of jail before trial, most defendants have to guarantee in some way that they will come to their future court dates and trial. This is called ‘posting bail’ or ‘posting bond’ depending on where you are located. Most bonds are an amount of money, usually several hundred to thousands of dollars.
How is the bond amount determined?
The amount of the bond can either be set automatically, or in a hearing with a judge. In most jurisdictions, misdemeanor crimes have a standard bond amount for each charge. For example a DUI charge could have a standard bond amount of $500, while a petty theft charge could have a standard bond amount of $250. These bond amounts can be set without any kind of court hearing, and if a person is able to post that amount themselves or though a bail bondsman, they will be released from jail while their case goes on. Some bond amounts require a hearing before a judge. Charges that involve injuring another person, such as domestic violence, typically require a hearing before a judge where the bond amount is determined. In these hearings the judge could also determine that the defendant should be kept in jail without bond, if the judge thinks they are likely to commit another crime or are a danger to other people.
Do I get the bond amount back?
As long as you don’t miss any of your court dates and appear for your trial, you will be able to get back the amount of your bond. If you used a bail bondsman to post bail, they typically charge around 10% to post bond for you. This type of charge isn’t recoverable.
Bail & Bond Resources:
Pre-Trial Release Conditions
If you or a loved one has been release from jail, either on bond or "on recognizance" (without a money amount set for bond), there are typically conditions that must be followed.
What are typical pre-trial release conditions?
Typical conditions of pre-trial release typically include things like:
- Not getting arrested or being detained by law enforcement
- Staying away from drugs and alcohol
- Making sure you keep all court dates
- In cases such as trespass or vandalism, staying away from that location
- Staying away from and not contacting the victims of the crime
- No leaving the state or county where the court case is located
What happens if you violate the conditions?
If you violate one of the pre-trial release conditions, consequences can be severe. Not only can the judge in your case revoke your bond and have you held in jail until your case is over, you could also be charged with additional crimes.
Need more information?
If you need more information on pre-trial release conditions, click below to view resources in the JIN resource library.
Resources on Pretrial Release Conditions:
Pre-Trial Diversion Programs
What are pre-trial diversion programs?
Many places offer 'diversion' programs to people facing minor criminal charges. The programs are designed to keep people without a criminal history from getting a criminal conviction on their record. Usually, these programs require you to complete things like community service, anger management classes, drug testing, or other requirements, and pay a fine. If you successfully complete the program the prosecutor will dismiss the charge against you.
Who is eligible for pre-trial diversion?
The eligibility requirements can be different depending on where you are and what type of charge you're facing. Many places only offer diversion to first-time offenders (people who have never been charged with a crime before). Additionally, most diversion programs are only for lower-level criminal charges, typically called 'misdemeanors.' Some places have special diversion programs for military veterans or for people facing drug charges.
How do I find out if I can get diversion?
In many places you will find out if you are eligible for diversion at your first court hearing. The prosecutor or the judge will tell you that diversion is an option for you. If you weren't offered diversion, you can still ask your attorney if it's a possibility, since sometimes attorneys can negotiate for diversion.
Resources on Pretrial Diversion Programs:
What to Expect at Your First Court Date
What can I expect at my first court date?
The first court date in a criminal case is usually called an 'arraignment.' If you or your loved one are out on bond/bail, you will get a notification in the mail about the date and time for this court date.
The arraignment is the court hearing where the judge tells you the charges against you, and tells you to enter a plea. This is not a hearing to set the amount of bail or bond - that hearing usually happens the morning after your arrest if the amount was not already set.
You will not be the only person in the court room at your arraignment. Typically the courtroom is full of people who are there for their arraignments too. At most arraignments you will wait until the clerk, a person who sits up next to the judge, calls your name. Then you will walk up to the front of the courtroom.
Once the judge reads the charges against you, the judge may ask the prosecutor if there is an offer to resolve your case that day, or if you are eligible for a diversion program. The judge may also ask you if you want to have the public defender represent you, and if you say yes, tell you to fill out some paperwork to see if you qualify.
Do I need to bring evidence or be prepared to argue my case?
No. The arraignment is not the hearing where the judge or a jury will hear your case. The arraignment is where you enter a plea (guilty, not guilty, or no contest) and are assigned the public defender if you are eligible and don't already have an attorney.
Other things to keep in mind:
Get to the courthouse early. Parking close to the courthouse on most weekdays is very difficult and crowded, so always take into account time to navigate traffic and finding a parking spot.
Be ready to be at the courthouse for a long time. Many arraignments take several hours of sitting and waiting for your name to be called. Make sure you take off time from work or arrange for childcare if possible.
Resources on Appearing in Court:
What is Attorney-Client Privilege?
Attorney-Client privilege is the privilege you have that keeps conversations between you and your attorney confidential. The purpose of this privilege is for you to feel comfortable telling your lawyer any relevant information when you are seeking legal advice. This privilege applies to both criminal and civil proceedings that may be held against you.
When do I have Attorney-Client Privilege?
This privilege applies to any communication you have directly with your attorney intended as legal advice and there must be no confusion that it was confidential. This includes conversations, emails, letters, phone calls, texts, etc. Unless you provide your attorney permission to reveal information, all communications are assumed to be confidential. Your communications should also be held in a way that would assume confidentiality. For example, in a private room where no one else is present or in a direct email.
People apart of your attorney’s legal team are allowed to be present during your communications with your attorney and this privilege will still apply. This includes secretaries, interpreters, and accountants that assist in your case. Family members may be present if they play a necessary role in the conversation, such as advising you.
When do I not have Attorney-Client Privilege?
Facts that can be found from an outside source, such as information about past business transactions, cannot be hidden, even if you tell your attorney about them . The specifics of what you communicated with your attorney may be privileged, but the raw facts must be told. For example, information in tax records and contracts cannot be hidden. If you tell an unrelated person about the contents of your conversation with your attorney, then the privilege for that conversation no longer exists. Then, this information can be used against you in court.
The attorney-client privilege does not apply to information that you reveal that may prevent death, serious injury, or recover money due to fraud committed against a person or company. If you begin a conversation with your attorney with the intent to commit a crime or fraud, you lose your privacy privileges of those conversations. Although an attorney may not break confidentiality without permission or reason, you may waive your right to this privilege.
If I tell my attorney about a past crime will they report me?
No, conversations about past crimes are usually protected under this privilege. For example, if you admit that you robbed a bank in the past your attorney cannot report that information.
Other Pre-Trial Issues
Arrest - Resources
Immigration - Resources