Ties and personal circumstances
Fixed residence, lawful occupation, children and family present reduce the alleged risk of flight and support less severe measures.
Emergency criminal defense · custody
Custody hearing: what the judge decides and how the defense prepares in a few hours
It is the detainee's first contact with a judge, within 24 hours of the arrest. It decides whether the person will answer the case in freedom. Preparation happens with the clock running.
Straight answer: what happens at the custody hearing
The judge hears the detainee, the prosecutor and the defense, checks whether the arrest was lawful and whether there was mistreatment, and chooses among three paths: releasing the detainee if the arrest was unlawful, granting provisional release with or without precautionary measures (bail, periodic reporting, electronic monitoring, no-contact orders), or converting the arrest into pre-trial detention when the requirements of article 312 of the CPP are present. The hearing does not judge guilt; it discusses only the detention.
This page is for relatives of persons arrested in the act awaiting presentation to a judge, and for the detainee seeking to understand the act. Emergency in-person assistance in the city of São Paulo (East, North and South zones), Guarulhos and the metropolitan area; other cases are handled throughout the State of São Paulo, Brazil, with remote meetings when appropriate.
What the defense presents to the judge at the hearing
Lawfulness of the arrest
Defects in the report, home entry without a well-founded reason, absence of the notice of charges or of notification to the family are raised for release.
Physical integrity
Reports of assault or coercion during the approach are recorded, with a request for a forensic examination and investigation.
Alternative measures
The defense proposes concrete measures from article 319 of the CPP compatible with the case, showing that detention is not necessary.
Bail
When applicable, the amount is discussed according to financial condition and may be reduced, waived or paid in installments.
Special situations
Pregnant women, mothers of children, seriously ill or elderly persons have specific provisions for house arrest or release.
Priorities before the hearing
Arrive early with the documents
The hearing lasts minutes. Organized documents handed to the judge and the prosecutor before the act weigh more than improvised arguments.
Private interview
The detainee has the right to talk with the lawyer before the hearing. That is when what will be said and what will be left for the trial is defined.
Do not discuss the facts
The custody hearing is not the place to deny or confess. Speaking about the merits may create evidence against the detainee.
How assistance is organized until the hearing
1. Location and time
Confirming the courthouse, the presentation time and the judge in charge.
2. Collecting documents
The family gathers proof of ties, which is organized and filed before the hearing.
3. Hearing and follow-up
Oral argument, recording of defects and, if needed, immediate habeas corpus against a decision keeping the person in custody.
If the presentation to the judge does not occur within 24 hours, or is done only by video without justification, the defense records the fact and may use it in a habeas corpus.
Frequently asked questions about the custody hearing
Can the family attend the hearing?
As a rule the hearing is public, unless a confidentiality order applies. The presence of relatives may help prove ties, but they do not speak during the act.
If the judge converts the arrest into pre-trial detention, is it over?
No. The decision can be challenged by habeas corpus before the TJSP, and detention can be reviewed at any time on new facts, such as a change of circumstances or excessive delay.
Does provisional release mean the case is over?
No. The person answers the case in freedom and must comply with the measures imposed. Breaching them may lead to a new arrest.
Official references and related pages
Rules applicable to the custody hearing in Brazil. The concrete decision depends on the arrest report and the documents presented at the act.
Is the custody hearing in the next few hours?
Send the detainee's and the police station's details through the secure channel. The screening organizes the documents and the presence at the hearing.