Arraignment and bail procedures vary depending on whether an arrest is made by warrant or without a warrant, and whether an arrest is made in the county in which the offense occurred or in a different county.
Videoconferencing technology is the preferred mode for conducting arraignments for in-custody defendants. MCR 6.006(C)(1). Arraignments are “scheduled to be conducted remotely subject to a request under MCR 2.407(B)(4) to appear in person by any participant, including a victim. . . , or a determination by the court that a case is not suited for videoconferencing under MCR 2.407(B)(5).” MCR 6.006(C)(1). “The use of telephonic, voice, videoconferencing, or two-way interactive video technology, must be in accordance with any requirements and guidelines established by [SCAO], and all proceedings at which such technology is used must be recorded verbatim by the court.” MCR 6.006(D). See also MCR 4.401(E) (“[a] district court magistrate may use videoconferencing technology in accordance with MCR 2.407 and MCR 6.006”). For additional information, including a complete list of authorized uses for videoconferencing, see the SCAO’s Michigan Trial Court Standards for Courtroom Technology.
District court magistrates are authorized by statute to conduct arraignments and set bail using interactive video technology. MCL 767.37a provides, in part:
“(1) A judge or district court magistrate may conduct initial criminal arraignments and set bail by 2-way interactive video technology communication between a court facility and a prison, jail, or other place where a person is imprisoned or detained. A judge or district court magistrate may conduct initial criminal arraignments and set bail on weekends, holidays, or at any time as determined by the court.
* * *
(5) This act does not prohibit the use of 2-way interactive video technology for arraignments on the information, criminal pretrial hearings, criminal pleas, sentencing hearings for misdemeanor violations cognizable in the district court, show cause hearings, or other criminal proceedings, to the extent the Michigan supreme court has authorized that use.”1
B.Arraignment on Arrest by Warrant
1.Arrest by Warrant in County in Which Alleged Offense Occurred
A warrant for an individual’s arrest must direct the arresting officer to take the arrestee, without unnecessary delay, before a judge or district court magistrate of the judicial district in which the charged offense occurred. MCL 764.1b.
See also MCR 6.104(A), which provides that an arrested person, if not released beforehand or arraigned by interactive video technology, must be taken without unnecessary delay before a court for arraignment in accordance with the provisions of MCR 6.104. MCR 6.104(B)2 provides, in relevant part:
“Place of Arraignment. An accused arrested pursuant to a warrant must be taken to a court specified in the warrant. . . . In the alternative, the provisions of this subrule may be satisfied by use of two-way interactive video technology in accordance with MCR 6.006(A).”
See also MCR 4.401(E) (“[a] district court magistrate may use videoconferencing technology in accordance with MCR 2.407 and MCR 6.006”).
2.Arrest By Warrant Outside County in Which Charged Offense Occurred
MCR 6.104(B)3 provides, in relevant part:
“Place of Arraignment. An accused arrested pursuant to a warrant must be taken to a court specified in the warrant. . . . If the arrest occurs outside the county in which [this court is] located, the arresting agency must make arrangements with the authorities in the demanding county to have the accused promptly transported to the latter county for arraignment in accordance with the provisions of [MCR 6.104]. If prompt transportation cannot be arranged, the accused must be taken without unnecessary delay before the nearest available court for preliminary appearance in accordance with [MCR 6.104(C)]. In the alternative, the provisions of this subrule may be satisfied by use of two-way interactive video technology in accordance with MCR 6.006(A).”4
If an accused first appears before the court in a county other than the one in which the offense occurred or, if arrested by warrant, in a county not listed in the arrest warrant, and the accused is not represented by counsel, the court must advise the accused of certain rights and decide whether to release the accused before trial. MCR 6.104(C).5 Specifically, when an accused appears before a court outside the county in which the alleged offense occurred, the court is responsible for advising the accused that
“(a) the accused has a right to remain silent,
(b) anything the accused says orally or in writing can be used against the accused in court,
(c) the accused has a right to have a lawyer present during any questioning consented to, and
(d) if the accused does not have the money to hire a lawyer, the local indigent criminal defense system will appoint a lawyer for the accused[.]” MCR 6.104(E)(2); see MCR 6.104(C).
An accused’s preliminary appearance may be “by way of two-way interactive video technology[.]” MCR 6.104(C).
MCL 764.4 governs arrests by warrant when the arrest and the charged offense do not occur in the same county and the offense is one for which bail may not be denied. In such a case, the arrestee has the right to request to be taken before a magistrate of the judicial district in which he or she was arrested. MCL 764.4. In those circumstances:
•The court may take from the person a recognizance with sufficient sureties for the accused’s appearance within 10 days before a court in the district in which the charged offense occurred. MCL 764.5.
•The court must certify on the recognizance that the accused was permitted to post bail and must deliver the recognizance to the arresting officer. Without unnecessary delay, the arresting officer must see that the recognizance is delivered to the court in which the accused will be appearing. MCL 764.6.
•If the court refuses to permit the arrestee to post bail or if insufficient bail is offered, the official having charge of the arrestee must take him or her before a magistrate in the judicial district in which the charged offense was committed. MCL 764.7.
•The interim bond provisions in MCL 780.581 apply to misdemeanor arrests by warrant, unless the alleged offense is a violation of MCL 764.15a (warrantless arrest only) or a substantially corresponding local ordinance; a violation of MCL 750.81, if the arrestee is in a specified relationship with the victim, or a substantially corresponding local ordinance; or a violation of MCL 750.81a, if the arrestee is in a specified relationship with the victim. MCL 780.582; MCL 780.582a(1).6
MCL 765.6e governs detention on an arrest warrant that originated in another county. “Except in cases in which the person is alleged to have committed an assaultive crime or an offense involving domestic violence, a person who is detained on warrant of arrest in a county other than the county from which the warrant originated must be released from custody if the county from which the warrant originated does not make arrangements within 48 hours from the time the person was detained to pick the person up and does not in fact pick the person up within 72 hours after the time the person was detained.” MCL 765.6e(1). “If a person is released from custody under [MCL 765.6e], the releasing facility must contact the originating court and obtain a court date for the defendant to appear.” MCL 765.6e(1).
Each district court must “establish a communication protocol to enable the swift processing of individuals detained on a warrant of arrest that originated in another county,” and also “establish a hearing protocol for individuals detained on a warrant that originated in another county,” that includes “the use of 2-way interactive video technology, when appropriate.” MCL 764.6f(1)-(2).
3.Interim Bail When Arrest is Made by Warrant
MCR 6.102(H), governing interim bail when arrest is made by warrant, states:
“Release on Interim Bail. If an accused has been arrested pursuant to a warrant that includes an interim bail provision, the accused must either be arraigned promptly or released pursuant to the interim bail provision. The accused may obtain release by posting the bail on the warrant and by submitting a recognizance to appear before a specified court at a specified date and time, provided that
(1) the accused is arrested prior to the expiration date, if any, of the bail provision;
(2) the accused is arrested in the county in which the warrant was issued, or in which the accused resides or is employed, and the accused is not wanted on another charge;
(3) the accused is not under the influence of liquor or controlled substance; and
(4) the condition of the accused or the circumstances at the time of arrest do not otherwise suggest a need for judicial review of the original specification of bail.”
Provisions similar to those in MCR 6.102(H) are also found in MCL 780.581 (interim bail and warrantless arrests), which, subject to the conditions of MCL 780.582a, is made applicable to arrests on warrants by MCL 780.582.7
C.Arraignment on Arrest Without a Warrant
1.Warrantless Arrest in County in Which Charged Offense Occurred
MCL 764.15 sets out circumstances under which an officer may arrest a person without a warrant. For example, a police officer may arrest a person without a warrant for a felony, misdemeanor, or ordinance violation that is committed in the officer’s presence, MCL 764.15(1)(a), or for a felony committed outside the officer’s presence, MCL 764.15(1)(b); additionally, a police officer who has reasonable cause to believe a person committed a felony or a misdemeanor offense punishable by more than 92 days of imprisonment may arrest that person without a warrant and without having witnessed the criminal conduct, MCL 764.15(1)(c)-(d). Additional exceptions to the warrant requirement for misdemeanor arrests include arrests for offenses involving the operation of a vehicle, snowmobile, ORV, or vessel while intoxicated or visibly impaired, MCL 764.15(1)(h)-(l), and arrests for domestic assault, MCL 764.15a.
An accused arrested without a warrant must be taken to a court in the judicial district in which the offense allegedly occurred. MCR 6.104(B).8 MCL 764.13 provides that a peace officer who arrests an individual without a warrant must, without unnecessary delay, take the arrestee before a magistrate in the district in which the offense occurred and present the magistrate with a complaint stating the offense for which the individual was arrested. See also MCL 780.581(1), which provides:
“If a person is arrested without a warrant for a misdemeanor or a violation of a city, village, or township ordinance, and the misdemeanor or violation is punishable by imprisonment for not more than 1 year, or by a fine, or both, the officer making the arrest shall take, without unnecessary delay, the person arrested before the most convenient magistrate of the county in which the offense was committed to answer to the complaint.”
MCR 6.104(D)9 provides:
“Arrest Without Warrant. If an accused is arrested without a warrant, a complaint complying with MCR 6.101 must be filed at or before the time of arraignment. On receiving the complaint and on finding probable cause, the court must either issue a warrant or endorse the complaint as provided in MCL 764.1c. Arraignment of the accused may then proceed in accordance with [MCR 6.104(E)].”
MCR 6.101 contains the requirements of a criminal complaint.
“A complaint is a written accusation that a named or described person has committed a specified criminal offense. The complaint must include the substance of the accusation against the accused and the name and statutory citation of the offense. At the time of filing, specified case initiation information[10] shall be provided in the form and manner approved by the State Court Administrative Office.” MCR 6.101(A).
When an individual has been arrested without a warrant, the law requires also that a prompt determination of probable cause be made. See People v Mallory, 421 Mich 229, 239 n 4 (1984). Under MCL 764.1c(1), if an individual is in custody after a warrantless arrest, a magistrate must determine if there exists reasonable cause to believe the individual in custody committed the offense; if the court finds reasonable cause, it must either:
•issue a warrant for the accused’s arrest according to MCL 764.1b, or
•endorse the complaint according to MCL 764.1c.
If the court endorses the complaint on a finding of reasonable cause, the complaint constitutes a warrant as well as a complaint. MCL 764.1c(2). A magistrate “endorses” the complaint by noting the finding of reasonable cause that a crime was committed and that the individual named in the complaint committed it, and directing that the individual accused of the crime be taken before the court in the district in which the crime allegedly occurred. MCL 764.1c(1)(b).
In addition, MCL 764.9c addresses warrantless arrests for misdemeanors or ordinance violations and provides, subject to certain exceptions, an alternative to formal arraignment. MCL 764.9c(1) provides, in relevant part:
“Except as provided in [MCL 764.9c(3)], if a police officer has arrested a person without a warrant for a misdemeanor or ordinance violation, instead of taking the person before a magistrate and promptly filing a complaint . . . , the officer may issue to and serve upon the person an appearance ticket as defined in [MCL 764.9f] and release the person from custody. The appearance ticket . . . , or other documentation as requested, must be forwarded to the court, appropriate prosecuting authority, or both, for review without delay.”11
2.Warrantless Arrest Outside County in Which Charged Offense Occurred
Because most warrantless arrests result from the accused’s conduct as witnessed by a law enforcement officer or citizen, warrantless arrests most often are made in the county in which the offense occurred. Exceptions may arise, however, such as when an individual cannot be apprehended immediately but is later located and arrested in another county.
MCR 6.104(B)12 provides, in relevant part:
“Place of Arraignment. . . . An accused arrested without a warrant must be taken to a court in the judicial district in which the offense allegedly occurred. If the arrest occurs outside the county in which [this court is] located, the arresting agency must make arrangements with the authorities in the demanding county to have the accused promptly transported to the latter county for arraignment in accordance with the provisions of [MCR 6.104]. If prompt transportation cannot be arranged, the accused must be taken without unnecessary delay before the nearest available court for preliminary appearance in accordance with [MCR 6.104(C)]. In the alternative, the provisions of this subrule may be satisfied by use of two-way interactive video technology in accordance with MCR 6.006(A).”
If an accused first appears before the court in a county other than the one in which the offense occurred and the accused is not represented by counsel, the court must advise the accused of certain rights and decide whether to release the accused before trial. MCR 6.104(C).13 Specifically, when an accused appears before a court outside the county in which the alleged offense occurred, the court is responsible for advising the accused that
“(a) the accused has a right to remain silent,
(b) anything the accused says orally or in writing can be used against the accused in court,
(c) the accused has a right to have a lawyer present during any questioning consented to, and
(d) if the accused does not have the money to hire a lawyer, the local indigent criminal defense system will appoint a lawyer for the accused[.]” MCR 6.104(E)(2); see MCR 6.104(C).
An accused’s preliminary appearance may be “by way of two-way interactive video technology[.]” MCR 6.104(C).
Subject to the conditions of MCL 780.582a, “if a magistrate is not available or immediate trial cannot be had,” an individual arrested without a warrant for a misdemeanor offense or ordinance violation punishable by imprisonment for not more than one year may be entitled to post an interim bond with the arresting officer or other authorized officer. MCL 780.581(2). The bond amount may not exceed the maximum possible fine for the offense, but may not be less than 20 percent of the minimum possible fine for the offense. Id.14
D.Special Procedures for Violations of Part 801 of the Natural Resources and Environmental Protection Act (NREPA)
See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 5, for information on arraigning a resident or nonresident who has been arrested without a warrant for a violation of the NREPA.
1 Effective January 1, 2013, Administrative Order No. 2012-7 provides that, in certain specific situations, “[t]he State Court Administrative Office is authorized, until further order of [the Michigan Supreme] Court, to approve the use of two-way interactive video technology in the trial courts to allow judicial officers to preside remotely in any proceeding that may be conducted by two-way interactive technology or communication equipment without the consent of the parties under the Michigan Court Rules and statutes.” “Notwithstanding any other provision in [MCR 6.006], until further order of the Court, AO No. 2012-7 is suspended.” MCR 6.006(E).
2 Although MCR 6.104(B) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B), MCR 6.104(B) is presumably applicable to misdemeanors under MCR 6.104(A), which is expressly applicable to misdemeanors and provides that arraignment is to take place “in accordance with the provisions of [MCR 6.104.]”
3 Although MCR 6.104(B) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B), MCR 6.104(B) is presumably applicable to misdemeanors under MCR 6.104(A), which is expressly applicable to misdemeanors and provides that arraignment is to take place “in accordance with the provisions of [MCR 6.104.]”
4 See also MCR 4.401(E) (“[a] district court magistrate may use videoconferencing technology in accordance with MCR 2.407 and MCR 6.006”).
5 Although MCR 6.104(C) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B), MCR 6.104(C) may be instructive when conducting an arraignment of a person arrested for a misdemeanor.
6 See Section 3.4 for discussion of interim bond.
7 See Chapter 3 for additional discussion of bail.
8 Although MCR 6.104(B) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B), MCR 6.104(B) is presumably applicable to misdemeanors under MCR 6.104(A), which is expressly applicable to misdemeanors and provides that arraignment is to take place “in accordance with the provisions of [MCR 6.104.]” Effective May 22, 2017, the Department of Licensing and Regulatory Affairs approved proposed standards submitted pursuant to the Michigan Indigent Defense Commission Act (MIDCA) by the Michigan Indigent Defense Commission, including that “[w]here there are case-specific interim bonds set, counsel at arraignment shall be prepared to make a de novo argument regarding an appropriate bond regardless of and, indeed, in the face of, an interim bond set prior to arraignment which has no precedential effect on bond-setting at arraignment.” MIDC Standard 4(A). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4 for discussion of the MIDCA.
9 Although MCR 6.104(D) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B), MCR 6.104(D) may be instructive when conducting an arraignment of a person arrested without a warrant for a misdemeanor.
10 “At a minimum, specified case information shall include the name, an address for service, an e-mail address, and a telephone number of every party[.]” MCR 1.109(D)(2).
11 See Section 4.14(D) for additional discussion of MCL 764.9c and appearance tickets. See Section 2.17(A) for information on the issuance and restrictions of appearance tickets
12 Although MCR 6.104(B) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B), MCR 6.104(B) is presumably applicable to misdemeanors under MCR 6.104(A), which is expressly applicable to misdemeanors and provides that arraignment is to take place “in accordance with the provisions of [MCR 6.104.]”
13 Although MCR 6.104(C) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B), MCR 6.104(C) may be instructive when conducting an arraignment of a person arrested for a misdemeanor.
14 Effective May 22, 2017, the Department of Licensing and Regulatory Affairs approved proposed standards submitted pursuant to the Michigan Indigent Defense Commission Act (MIDCA) by the Michigan Indigent Defense Commission, including that “[w]here there are case-specific interim bonds set, counsel at arraignment shall be prepared to make a de novo argument regarding an appropriate bond regardless of and, indeed, in the face of, an interim bond set prior to arraignment which has no precedential effect on bond-setting at arraignment.” MIDC Standard 4(A).
See Section 4.4 for discussion of the MIDCA. See Chapter 8 for additional discussion of bail.