Arraignment, R. 3:9-1

Arraignment, R. 3:9-1, right to counsel, sixth amendment, article 1 paragraph 10, U.S. Constitution, New Jersey Constitution, grand jury, indictment, New Jersey, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerWe all have bad days. But it seems to me we invariably react in one of three ways to the bad days of others: empathy, apathy, or judgment. And judgment seems to be the most popular. For example, an Atco man will soon make his first formal appearance in the Gloucester County Superior Court for his arraignment involving two separate cases. One case involves an alleged assault by auto and . I would submit the day of the collision was a bad day for him. But what is your reaction to this? How does it make you feel? Would you react differently if you witnessed identical or similar circumstances unfold in a TV program or a movie? Additionally, how would you react to seeing the drama of a person appear for an arraignment?

I previously blogged about under the New Jersey Constitution. But how does the grand jury actually return an indictment? Is it a special procedure or ceremony? Additionally, does it involve the entire panel? Furthermore, what happens after a grand jury returns an indictment?

Between Indictment and Arraignment

Consisting of 23 members, a majority 12 grand jurors rules as to whether to indict. Indeed, this is one distinction between a grand jury, which deliberates over whether to indict, and a petit jury, which deliberates over whether to convict. Under New Jersey law, the petit jury must unanimously agree.1 This requirement falls under the constitutional guarantee of a jury trial in criminal cases under the Sixth Amendment and New Jersey Constitution, Article 1, Paragraph 9.2

Additionally, the the grand jury foreperson or deputy foreperson must return the indictment in open court either to the Assignment Judge or a designated substitute judge. To maintain the secrecy of any particular indictment, the Assignment Judge or his substitute may order the clerk to seal the indictment until the defendant is either in custody or has been released pending trial. The judge may also order secrecy except as necessary for the issuance and execution of a warrant or summons. In either event, the defendant’s first formal appearance in Superior Court will soon take place during the arraignment.

Prosecutorial Duties

After the grand jury returns an indictment, the law imposes duties on the county prosecutor. The prosecutor must file the indictment and all available discovery in the criminal division manager’s office at the county courthouse. Alternatively, the prosecutor has the option to make these documents available through the prosecutor’s office. Additionally, the discovery must include a written plea offer.

Judiciary Duties

The criminal division manager’s office must notify the defendant in writing of the date, time and place (“logistics”) for arraignment. Additionally, the right to counsel under New Jersey law attaches with the return of the indictment.3 Before the return of the indictment, the police might be trying to solve a crime. Additionally, the county prosecutor may decide to remand a criminal charge to the municipal court. But the return of the indictment indicates the State’s decision to prosecute, and the adversarial relationship as to the defendant, has solidified.4 Therefore, the criminal division manager’s office must find out whether counsel represents the defendant.

If the attorney filed an appearance, then the criminal division manager’s office must immediately notify counsel for defendant electronically of the return or unsealing of the indictment, as well as the logistics of the arraignment. If no attorney represents the defendant, however, then the criminal division manager’s office must find out whether the defendant completed an application for public defender services and the status of that application.

Arraignment, R. 3:9-1

Where and When

The arraignment must take place in open court no more than 14 days after the return or unsealing of the indictment. If the defendant is unrepresented, he may apply for Public Defender services, and the court may assign the Office of the Public Defender to represent the defendant for the arraignment. This is to conform with the defendant’s Sixth Amendment right to assistance of counsel.

Judicial Duties During Arraignment

At the arraignment, the judge must

  1. advise the defendant of the substance of the charge,
  2. confirm discovery has been obtained if the defendant is represented by the public defender, or confirm discovery has been requested if the defendant has retained private counsel, or confirm counsel has affirmatively stated that discovery will not be requested,
  3. find out whether defendant has reviewed with counsel the indictment and, if obtained, the discovery,
  4. allow the defendant to apply for pretrial intervention, and
  5. inform all parties to redact confidential personal identifiers from any documents submitted to the court.

Defendant’s Duties During Arraignment

The defendant must enter a plea, either guilty or not guilty, to the charges. If the defendant pleads not guilty, counsel must report on the results of plea negotiations and such other matters discussed by the parties which shall promote a fair and expeditious disposition of the case. Unless otherwise instructed by the court, at the arraignment counsel shall advise the court of their intention to make motions.


NJ Trial Advocate Michael A. Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases involving a defendant’s first appearance. Call Now—(856) 812-0321.



1 State v. Milton, 178 N.J. 421 (2004) (quoting R. 1:8-9 for the proposition that the verdict must be unanimous in all criminal actions).

2 State v. Lipsky, 164 N.J. Super. 39 (App. Div. 1978).

3 State v. A.O., 198 N.J. 69 (2009)

4 State v. Tucker, 137 N.J. 259 (1994)