Who Issues Arrest Warrants?

You cannot watch a crime drama on television or on the big screen without seeing and hearing reference being made to an arrest warrant. In the United States, on both the state and federal level, arrest warrants are issued by judges or magistrates. There are some exceptions for very specific types of warrants, this is the procedure for most arrest warrants.

Types

There are two basic types of arrest warrants that are issued either by judges or magistrates. The first type of arrest warrant is one that is supported by an affidavit that sets forth specific allegations and considerations under oath. Typically, such an affidavit is prepared by a law enforcement officer or a prosecuting attorney. Relying on the allegations and considerations, which are discussed more fully in a moment, a judge or magistrate will issue a warrant.

The second type of arrest warrant is known as a bench warrant. This type of arrest warrant is issued by a judge or magistrate "from the bench" and normally is put forth because a person has failed to appear in court or has violated a prior order of the court.

Considerations

In order for an arrest warrant to be issued, probable cause must exist in regard to two separate and distinct factors. Evidence of probable cause is set forth in an affidavit that is executed and presented to a judge. First, there must be a demonstration that probable cause exists that a crime has been committed. Second, there also needs to be a demonstration that probable cause exists that the individual named in the affidavit supporting an arrest warrant is the individual who committed the offense.

Function

The fundamental function of an arrest warrant is to direct law enforcement officials to bring the individual named in such a warrant into custody and before the court. In some instances, a bail amount will be attached to the warrant itself. In other words, if a person is arrested on such a warrant, he or she will be able to post a bond to get out of custody. On the other hand, there are arrest warrants that do not have a listed bond. In such a circumstance, the person arrested will have to appear before a judge or magistrate before he or she has any option of being released from custody.

Time Frame

Generally speaking, an arrest warrant does not expire. Once it is issued by the court -- by a judge or magistrate -- it remains in full force and effect unless and until a person is arrested. It is possible for a warrant to be "recalled" in some circumstances. A recall occurs when a judge "takes back" a warrant that has been issued despite the fact that person who is the subject of the warrant has not been arrested. A recall of this nature is most commonly associated with a bench warrant originally issued because a person missed a court date.

Expert Insight

A person who believes he or she is the subject of an arrest warrant should contact the particular court or an attorney immediately. Depending on the nature of the charges underlying the warrant, a person -- particularly with the assistance of a lawyer -- normally can arrange to "self surrender." By taking such a course and depending on the charges, a person who is the subject of an arrest warrant will be in the best possible position to obtain a release from custody in the shortest amount of time possible.

Resources

• American Bar Association, Section of Criminal Justice