4.17Procedure Required for Felony Arraignments in District Court

MCR 6.610(I) specifies the procedure to be employed by a district court when a defendant first appears in district court for arraignment on an offense over which the circuit court has trial jurisdiction. Arraignment procedure for felony offenses is also covered by MCR 6.104(E). See the Michigan Judicial Institute’s checklist regarding felony arraignment in district court.

When a defendant is arraigned on a felony charge or a misdemeanor charge punishable by more than one year of imprisonment,1 the court must:

•“inform the accused of the nature of the offense charged, and its maximum possible prison sentence and any mandatory minimum sentence required by law[,]” MCR 6.104(E)(1); see also MCR 6.610(I)(1);

•if the accused is not represented by counsel, inform the accused of the right to be represented by an attorney, MCR 6.610(I)(2)(b);2

•if the accused is not represented by counsel, advise the accused that he or she has a right to remain silent, that anything said orally or in writing can be used against him or her in court, that he or she is entitled to have an attorney present during any questioning consented to, and that the local indigent criminal defense system will appoint an attorney to represent the accused if he or she cannot afford to hire one, MCL 775.163; MCL 780.991(1)(c)4; MCR 6.104(E)(2)(a)-(d); MCR 6.610(I)(2)(c);

•advise the accused of his or her right to be represented by an attorney at all proceedings, MCR 6.104(E)(3);

•inform the accused of the right to a preliminary examination, MCR 6.610(I)(2)(a);

•set a date for a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment, MCL 766.4(1); MCR 6.104(E)(4)5;

•schedule a preliminary examination for a date not less than 5 days or more than 7 days6 after the date of the probable cause conference, MCL 766.4(1); MCR 6.104(E)(4);

•if an unrepresented defendant waives the preliminary examination at arraignment, before accepting the waiver the court must determine that the waiver is given freely, understandingly, and voluntarily, MCR 6.610(I)7;

•inform the accused of the right to be considered for pretrial release, MCR 6.610(I)(2)(d);

•determine whether pretrial release is appropriate and, if so, what form of pretrial release is proper, MCR 6.104(E)(5); and

•“ensure that the accused has had biometric data collected as required by law,” MCR 6.104(E)(6); see also MCL 764.29.8


Committee Tip:

Note that different procedures are required under the court rules for arraignments on cases cognizable in the district court and cases cognizable in the circuit court. Specifically, the court rules (MCR 6.104 and MCR 6.610) require the court to inform the defendant of additional rights when arraigning on an offense cognizable in the circuit court, and this information must be given orally to the defendant at the arraignment. A writing setting out the defendant’s rights and signed by the defendant is not sufficient for felony arraignments and may only be used at arraignments on misdemeanors cognizable in the district court. A verbatim record is always required at arraignments on offenses cognizable in the circuit court, and may be required at arraignments on offenses cognizable in the district court unless a writing is permitted. Misdemeanor arraignments are discussed in Section 4.13. 

 

“A defendant neither demanding nor waiving preliminary examination in writing is deemed to have demanded preliminary examination and a defendant neither demanding nor waiving jury trial in writing is considered to have demanded a jury trial.” MCL 600.8513.

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.9 MCR 6.104(C).

The court conducting an accused’s arraignment on a circuit court offense is prohibited from “question[ing] the accused about the alleged offense or request[ing] that the accused enter a plea.” MCR 6.104(E).

A.Pretrial Release

Except as otherwise provided by law, an individual charged with a criminal offense is entitled to bail. MCL 765.6(1); Const 1963, art 1, § 15; MCR 6.106(A). A defendant arraigned in district court for a felony or misdemeanor not cognizable by the district court must be informed of his or her right to consideration of pretrial release. MCR 6.610(I)(2)(d). In addition, when a defendant is arraigned before a court in the same county in which the offense allegedly occurred, or before the court specified in the complaint or warrant if the defendant was arrested by warrant, the district court must determine whether pretrial release is appropriate and, if so, the court must tailor any conditions of the defendant’s pretrial release to the circumstances of the offense and the offender. MCR 6.104(C); MCR 6.104(E)(5); MCR 6.106(A).

 MCR 6.104(B) provides:

“(1) The court may deny pretrial release to

(a) a defendant charged with

(i) murder or treason, or

(ii) committing a violent felony and

[A] at the time of the commission of the violent felony, the defendant was on probation, parole, or released pending trial for another violent felony, or

[B] during the 15 years preceding the commission of the violent felony, the defendant had been convicted of 2 or more violent felonies under the laws of this state or substantially similar laws of the United States or another state arising out of separate incidents, if the court finds that proof of the defendant’s guilt is evident or the presumption great;

(b) a defendant charged with criminal sexual conduct in the first degree, armed robbery, or kidnapping with the intent to extort money or other valuable thing thereby, if the court finds that proof of the defendant's guilt is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.”

In general, where the defendant is preliminarily arraigned, “either in person or by way of two-way interactive video technology,” before a court in a county other than the county in which the offense occurred, the court must obtain a recognizance from the accused indicating that he or she will appear within the next 14 days before a court specified in the warrant or, in the case of a warrantless arrest, before a court in the judicial district where the offense occurred, or before another designated court. MCR 6.104(C). After receiving the accused’s recognizance, the court must certify the recognizance and deliver it to the appropriate court “without delay[.]” Id. If the accused is not released, he or she must be promptly transported to the judicial district of the offense. Id. “In all cases, the arraignment is then to continue under [MCR 6.104](D), if applicable, and [MCR 6.104](E) either in the judicial district of the alleged offense or in such court as otherwise is designated.” MCR 6.104(C).

See Chapter 3 for more information on pretrial release.

B.Advice of Right to Counsel at Felony Arraignments

This subsection provides a brief overview of the required advice of right to counsel at a felony arraignment. For more information on the topics discussed here, including a defendant’s right to counsel (and waiver), the Michigan Indigent Defense Commission Act (MIDCA10), and determining indigency, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4.

“[T]he right to counsel attaches at the initial appearance before a judicial officer[.]” Rothgery v Gillespie Co, 554 US 191, 199 (2008) (citations omitted). Whether the prosecutor was involved in or aware of the initial proceeding is irrelevant in determining when a defendant’s right to counsel has attached. Id. at 198-199. “[A] criminal defendant’s initial appearance before a judicial officer, where he [or she] learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” Id. at 213.

When an unrepresented defendant is arraigned in district court for an offense over which the district court does not have trial jurisdiction, the court must inform the defendant of his or her right to the assistance of counsel and to appointed counsel if he or she is indigent. MCR 6.610(I)(2)(b)-(c).“When a person charged with having committed a crime appears before a magistrate without counsel, the person shall be advised of his or her right to have counsel appointed.” MCL 775.16. “If the person states that he or she is unable to procure counsel, the magistrate shall appoint counsel, if the person is eligible for appointed counsel under the [Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981—MCL 780.100311].” MCL 775.16.

In addition, two different court rules address the court’s responsibility, at a defendant’s arraignment on the warrant or complaint, to advise a defendant of his or her right to counsel. MCR 6.005(A); MCR 6.104(E).

 MCR 6.005(A)(1) requires the court, at a defendant’s arraignment on the warrant or complaint, to advise the defendant of his or her right to the assistance of counsel at all court proceedings. In addition, at a defendant’s arraignment on the warrant or complaint, the court must inform the defendant that he or she is entitled to an attorney at public expense if he or she wants an attorney and cannot afford to retain one. MCR 6.005(A)(2). The court must ask the defendant whether he or shewants an attorney’s assistance and whether he or she is financially unable to retain one. MCR 6.005(A).

“Court rules providing for advising a defendant concerning his right to counsel at subsequent court proceedings . . . do not conflict with the language of [MIDC] Standard 4 providing for representation at the arraignment.” Oakland Co v State of Michigan, 325 Mich App 247, 270 (2018) (additionally holding that although the US Constitution does not require the appointment of counsel at arraignment, appointment at this juncture is not constitutionally prohibited, and through the MIDCA, the Michigan Legislature has enacted a protection greater than that secured by the United States Constitution).

MCR 6.104(E)(2) requires a court to convey specific information to a defendant at arraignment “if the accused is not represented by a lawyer at the arraignment[.]” (Emphasis added.) If the defendant is not represented by counsel at arraignment, the court must advise the defendant that he or she is entitled to have an attorney present during any questioning to which the defendant has consented and that the local indigent criminal defense system will appoint an attorney to represent the defendant if he or she is indigent.12 MCR 6.104(E)(2)(c)-(d). See also MCL 775.16 (“[w]hen a person charged with having committed a crime appears before a magistrate without counsel, the person shall be advised of his or her right to have counsel appointed[,]” and the magistrate must appoint counsel if required under the MIDCA).

MCR 6.104(E)(3) further requires the court to advise a defendant at arraignment (whether or not represented by an attorney at the time) that he or she has the right to be represented by an attorney at all subsequent proceedings.13 

C.Scheduling the Probable Cause Conference and Preliminary Examination14

See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for information on probable cause conferences and preliminary examinations and scheduling these types of hearings.

1    The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., applies to an indigent defendant who “is being prosecuted or sentenced for a crime for which an individual may be imprisoned upon conviction, beginning with the defendant’s initial appearance in court to answer to the criminal charge.” MCL 780.983(f)(i) (defining “‘[i]ndigent criminal defense services’” for purposes of the MIDCA) (emphasis supplied). Therefore, the requirements of the MIDCA concerning advice of the right to counsel and appointment of counsel apply whenever imprisonment of any length of time is a potential penalty. See Section 4.17(B) for additional discussion of advice of the right to counsel at arraignment. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook Vol. 1, for discussion of the MIDCA.

2    See Section 4.17(B) for more information on advising a defendant of the right to counsel at a felony arraignment.

3   Although MCR 6.104(E)(2)(d) has been amended to clarify that the local indigent criminal defense system is responsible for appointing a lawyer to represent an indigent accused, MCL 775.16 has not been amended to reflect this language and still provides that “the magistrate shall appoint counsel[.]”

4    The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., applies to an indigent defendant who “is being prosecuted or sentenced for a crime for which an individual may be imprisoned upon conviction, beginning with the defendant’s initial appearance in court to answer to the criminal charge.” MCL 780.983(f)(i) (defining “‘[i]ndigent criminal defense services’” for purposes of the MIDCA) (emphasis supplied). Therefore, the requirements of the MIDCA concerning advice of the right to counsel and appointment of counsel apply whenever imprisonment of any length of time is a potential penalty. See Section 4.17(B) for additional discussion of advice of the right to counsel at arraignment. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, for discussion of the MIDCA.

5    The prosecuting attorney and defense counsel may agree to waive the probable cause conference. MCL 766.4(2); see also MCR 6.110(A). See Section 4.20 for a discussion of probable cause conferences. See also the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, for discussion of scheduling the probable cause conference and preliminary examination.

6    “The parties, with the approval of the court, may agree to schedule the preliminary examination earlier than 5 days after the [probable cause] conference.” MCL 766.4(4). Additionally, under certain circumstances, the prosecuting attorney may request that the preliminary examination “commence immediately for the sole purpose of taking and preserving the testimony of a victim if the victim is present.” Id.; see also MCR 6.110(B)(2) (adding that “the defendant [must either be] present in the courtroom or [have] waived the right to be present[]”). See Section 4.20 for a discussion of probable cause conferences. See also the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, for discussion of scheduling the probable cause conference and preliminary examination.

7    “The defendant may waive the preliminary examination with the consent of the prosecuting attorney.” MCL 766.7 (emphasis supplied); MCR 6.110(A); see also MCL 766.4(4).

8    See Section 4.10 for more information on fingerprinting. Note that MCR 6.104(E)(6) contemplates the collection of biometric data while MCL 764.29 contemplates the taking of fingerprints.

9    See Section 4.8(A)(2) (arrest with a warrant) and Section 4.8(C)(2) (arrest without a warrant) for discussion of applicable procedures when an arrest is made outside the county in which the offense allegedly occurred.

10   The MIDCA does not violate the separation of powers doctrine of the Michigan Constitution because “any sharing or overlapping of functions required by the [MIDCA] is sufficiently specific and limited that it does not encroach on the constitutional authority of the judiciary.” Oakland Co v State of Michigan, 325 Mich App 247, 262 (2018). “[T]he [MIDCA] contains no provision authorizing the MIDC to force the judiciary to comply with the minimum standards, nor does the [MIDCA] purport to control what happens in court.” Id. at 264.

11    The MIDCA applies to an indigent defendant who “is being prosecuted or sentenced for a crime for which an individual may be imprisoned upon conviction, beginning with the defendant’s initial appearance in court to answer to the criminal charge.” MCL 780.983(f)(i) (defining “‘[i]ndigent criminal defense services’” for purposes of the MIDCA). The MIDCA requires the trial court to “assure that each criminal defendant is advised of his or her right to counsel.” MCL 780.991(1)(c). It further requires the indigent criminal defense system to make “[a] preliminary inquiry regarding, and . . . determin[e,] . . . the indigency of any defendant, including a determination regarding whether a defendant is partially indigent, . . . not later than at the defendant’s first appearance in court.” MCL 780.991(3)(a). The trial court may play a role in the determination of indigency. Id. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, for discussion of the MIDCA.

12    See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, for information on appointed counsel.

13    The MIDCA requires the trial court to “assure that each criminal defendant is advised of his or her right to counsel.” MCL 780.991(1)(c). It further requires the indigent criminal defense system to make “[a] preliminary inquiry regarding, and . . . determin[e,] . . . the indigency of any defendant, including a determination regarding whether a defendant is partially indigent, . . . not later than at the defendant’s first appearance in court.” MCL 780.991(3)(a). The trial court may play a role in the determination of indigency. Id. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, for discussion of the MIDCA.

14    See Section 4.20 for discussion of probable cause conferences. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for a discussion of preliminary examinations. District court magistrates do not have authority to conduct preliminary examinations. MCL 766.1.