What else takes place at the arraignment?

At the initial appearance or arraignment, the judge will inform the defendant of the charges and then ask the defendant if he or she has a plea. The defendant often will then enter a plea of guilty or not guilty or nolo contendere. If the defendant enters a plea of not guilty, then the court will set a date for the next court appearance, which could be a preliminary hearing in the case of felony charges.

LegalSpeak: Farretta v. California (1975)

It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of that respect for the individual which is the lifeblood of the law.

Does the defendant have to physically appear before a judge at the initial appearance and the arraignment?

It depends on the individual state. Many states have laws that allow the use of "two-way electronic audio-video communication" between the defendant and the judge. Mississippi law provides that a defendant can appear via "closed circuit television or Web cam." Other states, such as Montana, have a provision that allows a judge to order the defendant to be physically present for the initial appearance.

What happens if the defendant pleads guilty?

If the defendant pleads guilty, then the

In most cases, a defendant must appear in person before a judge, but some states allow the use of electronic audio-video communications to get the job done (iStock).

In most cases, a defendant must appear in person before a judge, but some states allow the use of electronic audio-video communications to get the job done (iStock).

judge will set a date for sentencing. At the sentencing date, the judge will then impose the time period that the defendant will have to serve or whatever other form of punishment the judge deems appropriate. In other cases, particularly those that involve less serious and less violent crimes, the judge will go ahead and impose the sentence at the initial appearance.

What is the process of plea bargaining?

Plea bargaining is a process in which the prosecuting attorney and the defense attorney bargain over the sentence to be imposed on the defendant. This process can occur at the time of the initial appearance all the way up to the time that the trial is supposed to take place. Usually, the plea bargaining process results in a defendant pleading guilty to a lesser charge. In other words, a defendant takes a plea to ensure a lesser sentence than if the case goes to trial and the jury issues a guilty verdict, which could lead to a much longer sentence. Thus, plea bargaining normally results in a reduced sentence for the defendant.

What role does a judge have with respect to plea bargaining?

The judge has the option of approving the plea agreement. Many states have laws that provide that the judge must determine that there is a factual basis for the plea. The judge must also determine that the defendant voluntarily accepts the plea agreement. The U.S. Supreme Court made it a constitutional requirement in

LegalSpeak: Boykin v. Alabama (1969)

It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary. That error, under Alabama procedure, was properly before the court below and considered explicitly by a majority of the justices and is properly before us on review.

A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.. Admissibility of a confession must be based on a "reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant." The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U.S. 506, 516, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.

We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards.

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record.

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought, and forestalls the spin-off of collateral proceedings that seek to probe murky memories.

Defendants can sometimes plea bargain down to a more lenient sentence. By doing so, courts can save time and money (iStock).

Defendants can sometimes plea bargain down to a more lenient sentence. By doing so, courts can save time and money (iStock).

Boykin v. Alabama (1969) for judges to ensure that a defendant's plea of guilty was truly voluntary.

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