5.7​Waiver of Rights

A.​Right to Arraignment

A defendant may waive the right to an arraignment. People v Phillips, 383 Mich 464, 469-470 (1970). With the court’s permission, a defendant may stand mute or plead not guilty without a “formal” or “in-court” arraignment by filing a written statement signed by the defendant and any defense attorney of record. MCR 6.610(D)(4) provides:

“The court may allow a defendant to enter a plea of not guilty or to stand mute without formal arraignment by filing a written statement signed by the defendant and any defense attorney of record, reciting the general nature of the charge, the maximum possible sentence, the rights of the defendant at arraignment, and the plea to be entered. The court may require that an appropriate bond be executed and filed and appropriate and reasonable sureties posted or continued as a condition precedent to allowing the defendant to be arraigned without personally appearing before the court.”

Determining whether a defendant waived his or her right to an arraignment requires an examination of all the circumstances. People v Thomason, 173 Mich App 812, 815 (1988), citing Phillips, 383 Mich at 470. For a defendant’s waiver to be valid, the record must establish that the defendant was entitled to an arraignment, that the defendant knew he or she was entitled to an arraignment, and that the defendant voluntarily elected not to exercise that entitlement. Thomason, 173 Mich App at 815-816, citing Phillips, 383 Mich at 470. A defendant does not have the burden of coming forward to request an arraignment, even when the defendant is aware that he or she was entitled to an arraignment and the arraignment did not occur. Thomason, 173 Mich App at 816 (citation omitted).

B.​Right to Counsel

A court cannot accept a defendant’s waiver of the right to be represented by an attorney unless the court first

•​advises the defendant of the charge against him or her, the maximum possible prison sentence the defendant could face if convicted of the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation, and

•​offers the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed attorney. MCR 6.005(D)(1)-(2).²⁴

Part Bdures Specific to Mis: Procedemeanor Arraignments²⁵