The Evolution of the "Not Guilty" Plea: Why Your Arraignment is Now a Battlefield

I’ve seen many variations of how an Arraignment and Plea (A&P) is conducted in Circuit Court, but one thing is certain: the era of the "tight ship" is over. Back in the mid 2000s, under judges like retired Judge Derrick Chan, the calendar was a machine. Attorneys were given preference, and moved to the front of the calendar so that they could appear and dip out to other hearings; and bail was rarely touched. The logic was simple: unless there was radical new evidence, the bail set at charging stayed the bail at arraignment.

Fast forward to today, and the exact same hearing under the exact same laws looks completely different. We have entered an era of "narrative construction," where your case can be fundamentally altered in minutes based on "new information" that isn't even materially different from the reports used just days earlier in charging.

The Defendant’s Playbook: Strategies to Defend Your Rights

If you are charged with a felony, your first move must be hiring an attorney beforeyour arraignment. If you have the means to do so, objective #1 is to make sure you have a private attorney by your side for A&P.

The second move is for your attorney to be prepared to rebut the presumption of:

1. Continued public safety danger
2. Necessity of additional "geographic restrictions" or "no contact orders"
3. Illegal possession of firearms
4. Bail Increases
5. Additional conditions of release like house arrest, electronic monitoring, or drug and alcohol testing

Here are the specific strategies you need to know:

1. The "Kicking the Can" Strategy

Luckily, prosecutors are often overwhelmed. Frequently, a "calendar deputy" appears for all cases rather than the specific prosecutor assigned to your file. If they attempt to hike your bail without a formal written motion, I’ve seen private attorneys argue that Arraignment is not an evidentiary hearing and any bail increases should be requested in writing before the Jury Trial Judge.

This move "kicks the can" down the road and gives you time. Defend against the increase by requesting the matter be deferred to the Jury Trial Judge. This can buy you 6+ weeks of freedom before the issue is even addressed again.

Case Study:

Below is a WORD FOR WORD redacted version of an oral bail increase motion made by the City Prosecutor’s office at A&P just last month. The charges were NON VIOLENT in nature and the defendants involved were retired, lifelong residents of Hawaii.

Trust me, I bailed these people out, I can spot a problem from a mile away. These people were simply caught in the crosshairs of a rather complicated legal matter. This was not a violent act, or even a traditional criminal act, yet bail was requested to be increased by $200K.

As you can see, the motion was denied at that time, saving the defendants from immediate re-incarceration.

2. The Grand Jury "Information Gap"

When a case moves from District to Circuit Court via Grand Jury, defense counsel isn't allowed in the room. New details often emerge there that result in a bail hike.

• The Move: Your private attorney must be ready with a rebuttal to reduce the bail back to its original amount the moment notice is received of its increase.

Real World Example:

In this recent case, I saw the exact same case move from district court to circuit court, and increase from $25K to $150K.

Without a plan, this defendant would have been taken back into custody immediately.

3. Carving Out Exceptions

If you live near the complainant or work in a field (like the military) that requires specific tools, "standard" conditions can ruin your life. I have even had a client barred from taking photos of children without consent—an awkward condition to navigate legally.

• The Move: Smartly carve out exceptions. If you’re a service member, your attorney needs to move for a "work-use" carve-out for firearms or training. If you don't ask for it at A&P, you may lose the legal leg to stand on later.

Know the "DNA" of the Court

The temperament of your judge matters. There is a massive difference between a judge who was a former Public Defender versus one who was a career Prosecutor. A qualified private attorney will know the temperament of the judge presiding, and the best arguments for their client’s favorable outcome.

The Bottom Line

Decades ago, an Arraignment and Plea took 30 minutes, you said "Not Guilty," and you went home. Those days are gone. Today, bail and conditions are at the forefront of the process.

You might not know these dynamics, but I do. Don't go into that courtroom flat-footed.

Safeguard yourself. 

- Jail Mail Nick

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