LawRefs Customized Legal Information
Attorney Renee C. Walsh

What is an Arraignment? Is a lawyer needed?

According to Black’s Law Dictionary, an arraignment is a procedure whereby the accused is brought before the court to plead to the criminal charge against him in the indictment or information. The charge is read to him and he is asked to plead “guilty” or “not guilty” or, where permitted, “nolo contendre.” State v McCotter, 288 N.C. 227, 217 S.E.2d 525, 529. Nolo contendre means “no contest” and is used in cases where for example, the defendant has no memory of the events.

The defendant is advised of the nature of the charge and his rights, and is allowed to claim or waive the rights. There are three types of arraignments: district court arraignment on a misdemeanor charge, district court arraignment on a felony charge, and circuit court arraignment on a felony charge.

All cases start in district court. A defendant can have any number of charges which will be either misdemeanors or felonies. Misdemeanor matters are handled in district court, however, felony charges must be bound over to circuit court.

At the arraignment, a defendant will be advised of the charge – that there is a misdemeanor and/or a felony charge that occurred. The magistrate or judge will read enough of the information to lay a foundation to inform the defendant of the facts of the events that make up the charge. The magistrate or judge will advise the defendant of his rights including but not limited to his right to an attorney and right to remain silent. He will ask the defendant how he pleads and whether he wants court appointed counsel and a preliminary hearing.

The procedure for a misdemeanor arraignment is codified at MCR 6.610(D). A defendant may ask the court to enter a plea of not guilty or to stand mute without a formal arraignment. The defendant files a written statement signed by himself and his attorney, if any. The statement must state the general nature of the charge, the maximum possible sentence, the rights of the defendant at the arraignment, and the plea to be entered.

If the charge is a felony, a defendant can have two arraignments on that charge. The first arraignment will occur in district court. After a preliminary hearing is either held or waived in district court, if the matter is bound over to circuit court, the first hearing in the circuit court will be another arraignment where again the felony charge is read or waived. The matter is bound over or sent to circuit court because the district court does not have jurisdiction to enter a final plea in felony cases.

An important step in the arraignment is the issue of bail. Accused persons are entitled to bail as provided in MCL 765.1 et seq. No person charged with treason or murder shall be allowed to bail if the proof of his guilt is evident. Where bail is allowed, the amount shall not be excessive. In fixing the amount of bail, the judge must consider the seriousness of the offense, the protection of the public, the previous criminal record and dangerousness of the person accused and the probability of the person accused of appearing at the trial.

If there is a question of whether the defendant will receive a bail in order to be released from jail, then this is a reason to have an attorney at the arraignment. The judge wants to hear that a defendant is not going to be a danger to the public and that he has ties to the community and obligations and responsibilities that will require him to return for the trial. The judge will set bail at a price that is tailored to get a defendant back in court and protect the public. If a defendant does not have money to pay the bail amount, he can ask the court for a personal recognizance bond (PR bond) and offer his driver license as security.

A very important aspect of bail involves defendants already on parole at the time of the offense. “Time served while being held for an offense committed while the defendant was on parole must be credited against the sentence on the former offense for which the defendant was paroled, and not against the sentence imposed for the current offense.” People v Brown, 186 Mich App 350 (1990), People v Watts, 186 Mich App 686, lv den 439 Mich 863 (1991). This means that if bail is set in such a case, and a defendant is incarcerated, the time he serves does not get credited toward the new charge, but rather for the former offense for which he was paroled. If that happens, a defendant can speak with their parole officer about credit against any parole violation. Another way to handle it is to motion the court to revoke the bond so that credit can be given for the new charge, knowing however, that if the bond is revoked, then the defendant will remain in jail. If there is a good chance that the defendant will be convicted at the trial, then the time served can be credited to the new sentence if the bond is revoked.

There are many factors to consider with regard to bail. However, if bail is not going to be an issue, then a defendant does not usually need to be represented by an attorney at the arraignment.

Discussion:

  1. A relative of mine had 2 drinks at a resturant and started home on slick, rainy roads. She thinks she might have fallen asleep and ran off the road. The next thing she knew was the officer tapping on her window. After she got out of the car they gave her a Field Sobriety tTst which she apparently failed and was taken to jail and charged with DWI. The bail was $500, paid and she was released with a temporary driver license. She is married with 4 children, employed and this was a first offense. Does she need a lawyer at the arraignment? There were no other vehicles involved and no property damage except to her vehicle.

    • Dear Marilyn K.:

      An arraignment is an initial hearing in which the defendant is notified of the charges. One usually does not need an attorney at the arraignment. If it were my relative, I would tell her to go, listen, plead not guilty or say nothing, and if necessary, ask that a court appointed attorney be provided. I would also tell her to introduce herself to the prosecutor if possible and try to establish a rapport.

  2. My son was arrested with 3 other people and they all were charged with grand larceny, robbery, & endangering the welfare of a minor. Bail was set for all and everyone was bailed out except my son his bail was set at 20,000. the others bail was as low as 5,000. Prior to my sons arrest he was sentence to probation for a conviction that happened b4 the arrest for the charges above but he had not initially met with his probation officer yet for consultation but was assigned someone. When my son had his first court appearance for the charges stated above his public defender told him to waive his rights and he did but he did not understand what it meant. None of the others that were involved waived their rights. He did not commit any crime or did he know this crime was going to take place he was present when it happened. There is no evidence against him. Just a case of being n the wrong place at the wrong time. How or what should he do???? Should he try to take his plea back of waving his rights for lack of knowledge & consequence? Please what’s the best & right thing to do?

    • Dear Sherrina:

      Someone should go up to the courthouse and look at his file procuring a copy of the Waiver he signed. Then, I can provide more information. Unless he entered a plea, it probably isn’t detrimental. He probably just waived his right to be arraigned and this would mean that he signed a form that said he had received a copy of the information, he read it or it was explained to him, he understands the charge, he waives arraignment in open court and pleads not guilty or stands mute. Furthermore, as to the charge, if he had no knowledge that the crime was going to take place, then it should go well for him but he will have to be confident in forcing them to prove their case against him because the prosecutor will not, at least initially, back down.

  3. Thank you so much for your advice on this site. It is very helpful and very RARE for someone to actually care enough to respond to these types of questions.

    I was arrested on a possession/cocaine charge. I got an attorney and I think he is the best lawyer the STATE of GA has. I moved to NY and did not know to notify the court. (Yes, dumb as it sounds, it is true) though, I DID notify my attorney who did not advise me to notify anybody else. Saying I was fine moving, I took that to be all the notification I needed to make. I asked said attorney to contact me as soon as there was any notice or movement on my case to which he agreed. That was @ six months ago or more. Last Friday morning at seven am, he called and said,” You know you have to be in court at nine o’clock, don’t you?” VERY rude awakening. I asked him to try to get a continuance so u would not have a bench warrant issued. He said he doubted the judge would do it. He called a little while later (before 9:00) and said that a warrant was issued but gave me a new court date so I would not have to sit in jail. I had asked in a previous telephone conversation ( the one in which I asked him to notify me of any movement on the case) that he work out a plea deal with the D.A. so I would not even have to take this to court at all.

    Now, I have these questions: Could my attorney have appeared in my place for the arraignment so I would not have my bond revoked and a warrant issued? Could a plea deal have been arranged and this whole thing taken care of already? Why does it seem like this lawyer doesn’t care that he is really screwing up my life when he doesn’t inform me of things? Am I expecting too much? Oh, by the way, this is the ONLY trouble I have ever been in. I have NO idea about what all goes on and what can or can’t be done. The attorney knows this and it seems like he is using thus fact against me. One last thing, I have already paid this guy a flat $3500 to deal with this case.

    • Dear Dennis:

      I’m not licensed in GA so pay special attention to my Legal Disclaimer (at page bottom) but in all my experience, attorneys MUST show up even if their client’s don’t. Furthermore, a good attorney will contact a prosecutor and try to work everything out without ever going into court.

      Under the facts stated, I would be worried that you would claim ineffective assistance of counsel, as well as legal malpractice and the possibility that my client may complain to the State Bar (licensing board) if I didn’t fix the situation somehow. I would do all I could to fix the situation, even if I had to tell the prosecution that my client relied upon me to notify the court and I failed to do it.

      Consider letting the court know that there was no intention to miss the court date and that in order to avoid this type of confusion, you notified your attorney (citing date and time) that you had moved and relied upon him to follow any required legal protocol to notify the court that your address had changed.

      Know that the failure to show up doesn’t mean the prosecution has a better case against you on the cocaine charge which they must still prove beyond a reasonable doubt.

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