How Long May Police Hold Suspects Before Charges Must be Filed?
Getting arrested can be difficult for both the individual and their family. This only gets magnified the longer the police hold a suspect in custody. Thankfully, the amount of time the police can hold someone who has not been charged with a crime is limited by the Constitution and state laws.
The Right to a Speedy Trial: The Constitution and State Time Limits
The right to a speedy trial is guaranteed to criminal defendants by the Sixth Amendment to the U.S. Constitution. A "speedy trial” basically means that the defendant must be tried for the alleged crimes within a reasonable time after being arrested. Although arrestees cannot be held without formal charges for an unreasonable amount of time, the Constitution does not spell out what this time is. Instead, these are typically set forth by state law, and the time period differs from state to state.
As a general rule, however, if you are placed in custody, your "speedy trial" rights require the prosecutor to decide within 72 hours which charges, if any, will be filed. Many states adhere to this 72 hour limit, but other states, such as California, go further and require that the decision be made within 48 hours after someone is taken into custody.
The U.S. Supreme Court explains that this protects defendants from serving lengthy jail times before a conviction. Speedy trial rights also lessen the time that the accused must endure the anxiety and publicity of an impending trial, and minimize the damage that delay might cause to the person's ability to present a defense.
The Decision to Charge
If you are arrested, a prosecutor will review your case before making an independent decision as to what charges should be filed. A prosecutor is not bound by the initial charging decision, but may later change the charged crimes once more evidence is obtained.
If the prosecutor doesn't bring charges within the time limit, then the police have to let you go. A failure to do that is a violation of your rights.
Violation of the Speedy Trial Right: Remedies
If you are detained, but not booked within a reasonable period of time, your attorney may go to a judge and obtain a writ of habeas corpus. A writ of habeas corpus is an order issued by the court instructing the police to bring you before the court so that a judge may decide if you are being lawfully held.