Dear LJ Lawyer, er, Genie:

[kitchen_kink]

1. What is the proceeding called wherein a person being brought up on criminal charges goes before the judge and pleads guilty or not-guilty? Is that the indictment, or something else?

2. If a person is suspected of, say, a murder, and is held without bail, in what type of facility is he held, and how long can they keep him there before bringing formal charges? Can people visit him there?

3. What's the fastest that such a case can come to trial? Until it comes to trial, can the person be held?

Comments

[regyt.livejournal.com]

1. Arraignment. The indictment is the charging instrument.

2. Jail. (As opposed to prison, which is a post-sentencing facility.) Rule 5 says that he must be taken before a judge for an initial appearance and to be charged "without unecessary delay". Gerstein says that that means 48 hours, if I recall correctly. Dunno about MD, but § 180.80 is the NY criminal procedure rule that says that he can be held in jail for 5 days after initial appearance without the next step happening. Hm, also, Rule 61 (a federal rule) says that it must be no more than 30 days from arrest to indictment, and no more than 70 days from indictment to trial. Except, of course, there a whole mess of exclusions, and trial never actually happens within 70 days. All sorts of [chunks of time] don't count, y'see. When the case isn't sitting idle, the clock isn't ticking, basically. It really depends on whether we're talking state or federal court and which state and all that. If you want to email me the full story, I'll be able to give you better answers.

As for whether you can visit, try calling the jail to find out. I've only visited jails on behalf of attorneys, which was a whole annoying application procedure, but it works differently for family, &c.

3. Ha. Ha ha ha. Fast? Yes, the person can be held. We call it preventive detention, thanks to the 1984 Bail Reform Act (I hates it) - it's disgusting, keeping a guy in jail for what he might do rather than what he's done, but it's allowed.

[dietrich.livejournal.com]

Yay, thank you!

This is all research for the book, incidentally, not for real. So as not to worry you.

Okay. So he's arrested, charged (indicted) as soon as possible, and then the arraignment has to happen within a month or so?

Then the trial can take any amount of time after that, I'm sure...bah.

I'll check out the pre-trial visiting in jail thing.

[regyt.livejournal.com]

Basically. There's infinitely more nuance to it than that, of course, and reasons for the various time limits and historical evolution of how and why defendants can be held and all that, but I doubt that really matters for your story. You get the basic idea.

Guy gets arrested. Must have probable cause to make an arrest. He gets thrown in a holding pen - not even in jail yet, really. He gets his initial appearance within 48 hours. All you need for an initial appearance is a probable cause document, like a complaint. You don't need an information or an indictment yet, which are triable accusatory documents. The initial appearance is just a probable cause hearing, to determine whether he can be held further. Next step is to get a triable accusatory document. One way to do that is to go before a grand jury (which has more than 12 people, has no defense, and just determines whether the case even deserves to be tried). It's basically - in states west of Mississippi, a person can be tried on the basis of an information, which is submitted by the prosecutor without bothering to go through a grand jury. In states east of the Mississippi, you generally need an indictment from a grand jury. NY is particularly stringent about the grand jury. (The 12 person jury you're used to is called a petit jury, pronounced 'peh-tit'.) Anyway, that indictment is what Rule 61 demands you get within 30 days.

You actually only need a complaint, not an information or an indictment, to have an arraignment. Odd as that is, in my opinion.

And yes, trial can pretty much take any amount of time after that, though you can run into a 6th Amendment speedy trial violation and get the case dismissed if it takes too long, though what that means is a more intricate issue than I'll bother to address here and now.