After an in-flagrante arrest, one of the first questions a family usually asks is: when will the person see a judge? The answer lies in the custody hearing — a decisive, and often poorly understood, moment in a criminal case.
What is a custody hearing
A custody hearing (audiência de custódia) is the presentation of a person arrested in flagrante delicto to a judge, with the presence of the Public Prosecutor's Office (Ministério Público) and a lawyer or public defender. Its purpose is to allow immediate judicial review of the legality of the arrest and the conditions under which it took place, including checking for any signs of violence or mistreatment.
How soon it happens
The custody hearing must, as a general rule, take place within 24 hours of the in-flagrante arrest. This deadline aims to prevent someone from remaining in custody for a prolonged period without a judge assessing the legality and necessity of the arrest.
The 24-hour deadline derives from National Council of Justice (CNJ) rules and from the interpretation of constitutional provisions and the Code of Criminal Procedure on presenting the arrested person to a judicial authority. [CASE LAW TO CONFIRM]
What can be decided at the hearing
At the end of the custody hearing, the judge may take different paths, depending on the circumstances of the case:
- Declare the arrest unlawful and order release, when an illegality is found that made the procedure irregular from the outset;
- Grant provisional release, without any additional condition;
- Grant provisional release with alternative precautionary measures, such as periodic appearance in court, a prohibition on contacting certain people, or electronic monitoring;
- Convert the in-flagrante arrest into pretrial detention (prisão preventiva), when the legal requirements justifying continued custody during the investigation or proceedings are present.
What is assessed at the hearing
In addition to hearing the arrested person about the circumstances of the arrest and any treatment received, the judge examines the formal regularity of the arrest report, the need to maintain custody in light of the legal requirements (such as risk to public order, to the criminal investigation, or to the application of criminal law), and the possibility of applying measures less severe than detention.
The lawyer's role at the custody hearing
Having a retained lawyer present — rather than relying solely on the Public Defender's Office, which handles a large volume of cases — allows for closer, more personalized representation: analyzing the circumstances of the arrest beforehand, preparing specific arguments about any illegalities, and advocating for provisional release or alternative precautionary measures instead of detention, when applicable.
A custody hearing is not a trial hearing
It's common to confuse the custody hearing with the trial hearing (audiência de instrução e julgamento), which takes place later in the proceedings, involving the production of evidence, witness testimony and closing arguments. The custody hearing has a different purpose: to quickly assess the legality of the in-flagrante arrest, not to judge the merits of the accusation.
How to prepare
- Look for a lawyer immediately after learning of the arrest — the time before the hearing is usually short;
- Gather information about the arrested person's life that may be relevant (fixed residence, employment, family ties), which are often considered when assessing precautionary measures;
- Tell the lawyer about any report of assault or improper treatment during the arrest;
- Avoid trying to intervene directly with the police or judicial authority without legal guidance.