Criminal defendants may be capable of representing themselves at arraignment, but it’s better to be represented by counsel.
Many defendants are capable of representing themselves at an arraignment. They can plead “not guilty” and even ask the judge to reduce bail. During the interval between the arraignment and the next court appearance (rarely less than two weeks and often longer), the defendant can decide whether to hire a lawyer for post-arraignment proceedings.
Representing Yourself While Still in Jail
The arraignment process is generally the same whether you’re still in jail or out. (The timing of arraignment will differ if you’re out of custody, though; see Arraignment: Getting to Court.) Of course, defendants who are in custody at the time of arraignment are likely to ask the judge to set bail (if this has not already occurred at an earlier bail hearing) or to lower the bail previously set. A defendant’s bail status is always subject to review, and defendants should never hesitate to inform judges of changed circumstances (for example, a job offer) that might lead the judge to reduce bail. (For all kinds of information on bail, see Bailing Out of Jail.)
Missing a Good Deal—and Lower Bail
Nevertheless, it’s not a good idea for most defendants to go it alone at the arraignment. For example, if a technical defect exists in the prosecution’s case, the defendant may have the right to raise the defect only prior to entering a plea. Also, a particular prosecutor’s office may have a policy of offering the best deals to defendants who plead guilty (or no contest) at their arraignments. Defendants who intend at some point to plead guilty but are unaware of such a policy may suffer a harsher punishment by putting off the guilty plea until after the arraignment. Finally, arraignment judges are more likely to lower bail when defendants have legal representation. Thus, most defendants considering self-representation who don’t yet have legal counsel should try to postpone the arraignment by asking the judge for a continuance, and then consult with a criminal defense lawyer before deciding to self-represent.
Bailed-Out Defendants: Lowering Bail
Judges often conclude arraignments by continuing defendants on the same bail status they had prior to arraignment. However, the arraignment judge has the power to reset bail, either lower or higher. Bailed-out defendants can ask the arraignment judge to release them O.R. or lower the bail in order to free up cash and collateral for other purposes (including hiring an attorney). Unfortunately, even if the judge lowers the bail or grants the defendant O.R., any bail premium already paid to a bail-bond seller cannot be recaptured.
It’s also possible that the prosecutor will seek higher bail (for instance, because the defendant has a criminal record). If the arraignment judge does increase a bailed-out defendant’s bail, the defendant can be returned to custody until the higher bail is met. Self-representing defendants who have any reason to fear an increase in bail should come to the arraignment prepared to pay the additional cost. For example, a defendant might ask a bail-bond seller to come to court and immediately post bond for the higher amount.
Buying Time While Looking for a Lawyer
Defendants who are uncertain about whether to represent themselves at arraignment (or for the duration of the case) may buy additional time to make a decision by asking for a continuance (postponement). Judges routinely grant continuances of at least a week to give the defendant a chance to hire an attorney. In return, the defendant may have to “waive time,” meaning he or she gives up the right to be arraigned within statutory time limits. The continuance does not obligate the defendant to hire an attorney. The defendant can appear at the next scheduled date for the arraignment and self-represent or ask for a court-appointed lawyer.
To obtain a continuance, the defendant usually must appear in court on the date set for arraignment and ask the judge for more time to find an attorney. However, some courts allow defendants to arrange continuances by phone. A defendant who wants a continuance and finds it inconvenient to appear in court on the date set for arraignment may want to phone the arraignment court clerk ahead of time to find out if a continuance is possible.
Ultimately, it’s best to go with legal representation. An attorney can handle the smaller stuff—for instance, a lawyer may be able to appear on the client’s behalf at arraignment (depending on the charges). More importantly, experienced lawyers regularly achieve better results than defendants could have on their own.