01 March 2016

The First Hearing Before a Judge

For a long time now, I've explained to people that the first time a defendant sees a judge in Virginia is not an arraignment. Most of the time I get a glazed look and bored nod and people go on calling it arraignment and some judges even toss an arraignment into the first hearing. So, once again today a situation arose and I had to explain it. Since I have it fresh in mind, I thought that I'd put it all down here so that people would actually know once and for all - the first pretrial hearing in front of the judge is not an arraignment.

We begin with 19.2-158, in Chapter 10 - Disabled Judge or Commonwealth and Court Appointed Counsel (yes, I know it's in a strange location - blame the General Assembly, not me), which requires a person who is incarcerated to be brought before the Court on the next working day after he is charged. This hearing has two, and only two, purposes: "the judge shall inform the accused of [1] the amount of his bail and [2] his right to counsel." The section then goes on to describe how another pretrial event shall occur (bond hearings).

On the other hand, the section which deals with arraignments, 19.2-254, is in Chapter 15: Trial and It's Incidents.  This section gives a general outline of how a trial is to proceed, starting with arraignment.

Going back to the first pretrial hearing (let's call it the Notification Hearing), the last paragraph starts with "No hearing on the charges against the accused shall be had until the foregoing conditions have been complied with" and I think this is the reason that those who make bond are also required to come into court for a notification hearing.

The notification hearing has a bare minimum requirement as stated above, but it's also a natural time to accomplish some other requirements. The judge is required, at some point, under 19.2-159 to determine whether the defendant needs a court appointed counsel. Although not required, the logical time to do this is during the notification hearing. And in some jurisdictions where the judge rides a circuit the only time a bond hearing can be done is the day of the notification hearing. And some places actually do a faux arraignment during the notification hearing.

Where do they get the idea that an arraignment should be done at the notification hearing? Most people I ask give an answer which boils down to "because we've always done it this way." More likely, the judges picked it up off of TV or a nearby State (Kentucky for example) that does early arraignment. In the end it doesn't really matter. The judge is clearly required to do the actual arraignment at the start of trial and an early arraignment accomplishes nothing. In fact, in some situations it has been specifically held to be ineffectual. See Hutchins v. Commonwealth, SEP99, VaApp No. 1439-97-3 (en banc, holding that early arraignment does not toll speedy trial).  Mind you, I don't expect the jurisdictions which do the faux arraignment to stop adding the surplusage to their notification hearing. It doesn't really harm anything. It's just a minor waste of time and there's no way that outbalances "we've always done it this way."