15.7Arraignment1
An arraignment, in the context of a designated case, is the first hearing at which:
“(a) the juvenile is informed of the allegations, the juvenile’s rights, and the potential consequences of the proceeding;
(b) the matter is set for a probable cause or designation hearing; and,
(c) if the juvenile is in custody or custody is requested pending trial, a decision is made regarding custody pursuant to MCR 3.935(C).[2]” MCR 3.903(D)(1)(a)-(c).
A referee may conduct an arraignment in a designated case, and the referee need not be a licensed attorney. MCR 3.912(A); MCR 3.913(A)(1); see also MCR 3.913(A)(2)(c) (referee who conducts a designation hearing or a hearing to amend a petition to designate a case must be licensed to practice law in Michigan).3
B.Time Requirements for Arraignment
1.When Juvenile is in Custody or Custody is Requested
In both prosecutor-designated and court-designated cases,
“[i]f the juvenile is in custody or custody is requested, the arraignment must commence no later than 24 hours after the juvenile has been taken into court custody, excluding Sundays and holidays as defined by MCR 8.110(D)(2), or the juvenile must be released. The court may adjourn the arraignment for up to 7 days to secure the attendance of the juvenile’s parent, guardian, or legal custodian or of a witness, or for other good cause shown.” MCR 3.951(A)(1)(a); MCR 3.951(B)(1)(a).
2.When Juvenile is Not in Custody and Custody is Not Requested
In both prosecutor-designated and court-designated cases,
“[i]f the juvenile is not in custody and custody is not requested, the juvenile must be brought before the court for an arraignment as soon as the juvenile’s attendance can be secured.” MCR 3.951(A)(1)(b); MCR 3.951(B)(1)(b).
C.Required Procedures at Arraignment
1.Preliminary Procedures
MCR 3.951(A)(2) and MCR 3.951(B)(2), which set out the procedure for conducting an arraignment, provide in part that:
“(a) The court shall determine whether the juvenile’s parent, guardian, or legal custodian has been notified and is present. The arraignment may be conducted without a parent, guardian, or legal custodian, provided a guardian ad litem or attorney appears with the juvenile. Attorney appointments, even if just for the arraignment, are to be done by the court’s local funding unit’s appointment authority.
(b) The court shall read the allegations in the petition[.]”
2.Advice of Rights in Prosecutor-Designated Cases
MCR 3.951(A)(2)(b) states that in a prosecutor-designated case, the court must advise the juvenile on the record in plain language:
“(i) of the right to an attorney at all court proceedings, including the arraignment;[4]
(ii) of the right to trial by judge or jury on the allegations in the petition;
(iii) of the right to remain silent and that any statement made by the juvenile may be used against the juvenile;
(iv) of the right to have a preliminary examination within 14 days;[5]
(v) that the case has been designated for trial in the same manner as an adult and, if the prosecuting attorney proves that there is probable cause to believe an offense was committed and there is probable cause to believe that the juvenile committed the offense, the juvenile will be afforded all the rights of an adult charged with the same crime and that upon conviction the juvenile may be sentenced as an adult; and
(vi) of the maximum possible prison sentence and any mandatory minimum sentence required by law.”
3.Advice of Rights in Court-Designated Cases
MCR 3.951(B)(2)(b) states that in a court-designated case, the court must advise the juvenile on the record in plain language:
“(i) of the right to an attorney at all court proceedings, including the arraignment;[6]
(ii) of the right to trial by judge or jury on the allegations in the petition;
(iii) of the right to remain silent and that any statement made by the juvenile may be used against the juvenile;
(iv) of the right to have a designation hearing within 14 days;
(v) of the right to have a preliminary examination within 14 days after the case is designated if the juvenile is charged with a felony or offense for which an adult could be imprisoned for more than one year;[7]
(vi) that if the case is designated by the court for trial in the same manner as an adult and, if a preliminary examination is required by law, the prosecuting attorney proves that there is probable cause to believe that an offense was committed and there is probable cause to believe that the juvenile committed the offense, the juvenile will be afforded all the rights of an adult charged with the same crime and that upon conviction the juvenile may be sentenced as an adult; [and]
(vii) of the maximum possible prison sentence and any mandatory minimum sentence required by law.”
4.Right to Appointed Counsel8
The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., requires the court to advise the accused of the right to counsel and requires that the accused be screened for eligibility for appointed counsel.9 MCL 780.991(1)(c) provides:
“Trial courts shall assure that each criminal defendant is advised of his or her right to counsel. All adults,[10] except those appearing with retained counsel or those who have made an informed waiver of counsel, must be screened for eligibility under [the MIDCA], and counsel must be assigned as soon as an indigent adult is determined to be eligible for indigent criminal defense services.”
“A preliminary inquiry regarding, and the determination of, the indigency of any defendant, including a determination regarding whether a defendant is partially indigent, . . . must be made as determined by the indigent criminal defense system[11] not later than at the defendant’s first appearance in court.” MCL 780.991(3)(a).12 The “trial court may play a role in this determination as part of any indigent criminal defense system’s compliance plan under the direction and supervision of the [Michigan Supreme Court.]” Id.13 Furthermore, nothing in the MIDCA “prevents a court from making a determination of indigency for any purpose consistent with” Const 1963, art 6. MCL 780.991(3)(a).
Counsel must be assigned as soon as the defendant has been determined as eligible for indigent criminal defense services, and counsel must be appointed “as soon as the defendant’s liberty is subject to restriction by a magistrate or judge.” MIDC Standard 4. “Representation includes but is not limited to the arraignment on the complaint and warrant.”14 Id. “All persons determined to be eligible for indigent criminal defense services shall also have appointed counsel at pre-trial proceedings, during plea negotiations and at other critical stages, whether in court or out of court.” Id. However, the defendant is not prohibited “from making an informed waiver of counsel.” Id.
For further discussion of the MIDCA, see Chapter 17.
D.Authorization of Petition by Court at Arraignment
“Unless the arraignment is adjourned, the court must decide whether to authorize the petition to be filed.” MCR 3.951(A)(2)(c); MCR 3.951(B)(2)(c).
MCR 3.951(A)(2)(c)(i)-(iii) and MCR 3.951(B)(2)(c)(i)-(iii) provide that if the court authorizes the filing of the petition, it must:
•determine if biometric data must be collected pursuant to MCR 3.936,15
•schedule a preliminary examination (in a prosecutor-designated case, MCR 3.951(A)(2)(c)(ii)) or a designation hearing (in a court-designated case, MCR 3.951(B)(2)(c)(ii)),16 and
•if the juvenile is in custody or custody is requested, determine whether to detain or release the juvenile as provided in MCR 3.935(C).17
Additionally, “[i]f the juvenile is in custody or custody is requested, the juvenile may be detained pending the completion of the arraignment if it appears to the court that one of the circumstances in MCR 3.935(D)(1)[18] is present.” MCR 3.951(A)(2)(d); MCR 3.951(B)(2)(d).
E.Scheduling of Preliminary Examination or Designation Hearing
In a prosecutor-designated case, if the petition is authorized for filing at the arraignment, the court must “schedule a preliminary examination within 14 days[19] before a judge other than the judge who would conduct the trial[.]” MCR 3.951(A)(2)(c)(ii).20
If the court authorizes the filing of a petition requesting the court to designate the case, the court must schedule a designation hearing within 14 days of the arraignment. MCR 3.951(B)(2)(c)(ii).
1 “Instruments of restraint . . . may not be used on a juvenile during a court proceeding unless the court finds that the use of restraints is necessary due to one of the” factors set forth in MCR 3.906(A)(1)-(3). MCR 3.906(A). A determination that restraints are necessary must be made in compliance with MCR 3.906(B), and any use of restraints must comply with MCR 3.906(C). See Section 1.5 for more information on the use of restraints in juvenile proceedings.
2 See Section 6.1(G) for a discussion of MCR 3.935(C), which sets out factors that the Family Division, at the preliminary hearing in a delinquency case, must consider when determining whether to release or detain the juvenile.
3 See the Michigan Judicial Institute’s table summarizing which proceedings must be conducted by a judge and which proceedings may be conducted by an attorney referee or a nonattorney referee.
4 MCR 3.915(A)(1) provides, in relevant part, that if a juvenile is not represented by an attorney, “the court shall advise the juvenile of the right to the assistance of an attorney at each stage of the proceedings on the formal calendar[.]” Additionally, the Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., requires the court to advise the juvenile of the right to counsel, MCL 780.991(1)(c), and establishes additional requirements regarding screening the juvenile for eligibility for appointed counsel. See Chapter 17.
5 At arraignment for a felony charge, the court must schedule “a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1.
Because the proceedings in a designated case “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction,” MCL 712A.2d(7), these requirements under MCL 766.4(1) may apply to designated proceedings. However, MCL 712A.2d and the court rules governing designated proceedings, including MCR 3.951, have not been amended to reflect these requirements; therefore, it is unclear to what extent the statutory and court rule requirements apply to designated cases (with the exception of MCR 6.110, which, under MCR 3.953(E), specifically applies to designated proceedings). See Section 15.9 for additional discussion of MCL 766.4; see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.
6 MCR 3.915(A)(1) provides, in relevant part, that if a juvenile is not represented by an attorney, “the court shall advise the juvenile of the right to the assistance of an attorney at each stage of the proceedings on the formal calendar[.]” Additionally, the Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., requires the court to advise the juvenile of the right to counsel, MCL 780.991(1)(c), and establishes additional requirements regarding screening the juvenile for eligibility for appointed counsel. However, the MIDCA applies to court-designated proceedings only “[d]uring consideration of a request by a prosecuting attorney . . . that the court designate the case as a case in which the juvenile is to be tried in the same manner as an adult.” MCL 780.983(a)(ii)(C). See Chapter 17 for discussion of the MIDCA.
7 At arraignment for a felony charge, the court must schedule “a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1.
Because the proceedings in a designated case “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction,” MCL 712A.2d(7), these requirements under MCL 766.4(1) may apply to designated proceedings. However, MCL 712A.2d and the court rules governing designated proceedings, including MCR 3.951, have not been amended to reflect these requirements; therefore, it is unclear to what extent the statutory and court rule requirements apply to designated cases (with the exception of MCR 6.110, which, under MCR 3.953(E), specifically applies to designated proceedings). See Section 15.9 for additional discussion of MCL 766.4; see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.
8 See Chapter 17 for additional discussion of requirements under the MIDCA.
9 The MIDCA applies to juveniles in prosceutor- and court-designated proceedings. See MCL 780.983(a)(ii)(B)-(C) (defining adult, for purposes of the MIDCA, to include these juveniles).
10 As used in the MIDCA, “‘[a]dult’” includes “[a]n individual less than 18 years of age at the time of the commission of a felony” who is the subject of a traditional waiver, designated, or automatic waiver proceeding. MCL 780.983(a)(ii). Note that the MIDCA does not appear to apply to court-designated cases after designation. It is unclear whether this was intentional or an oversight.
11 An indigent criminal defense system is “[t]he local unit of government that funds a trial court.” MCL 780.983(h)(i). Alternatively, “[i]f a trial court is funded by more than 1 local unit of government,” an indigent criminal defense system is “those local units of government, collectively.” MCL 780.983(h)(ii).
12 The MIDC must “promulgate objective standards for indigent criminal defense systems to determine whether a defendant is indigent or partially indigent,” which must include “prompt judicial review, under the direction and review of the supreme court[.]” See MCL 780.991(3)(e); Standard for Determining Indigency and Contribution, Judicial Review. The MIDC has set out a minimum standard for determining indigency and contribution “for those local funding units that elect to assume the responsibility of making indigency determinations and for setting the amount that a local funding unit could require a partially indigent defendant to contribute to their defense”; however, “[a] plan that leaves screening decisions to the court can be acceptable.” Standard for Determining Indigency and Contribution, Indigency Determination (a).
13 This statute recognizes “the authority of the judicial branch with respect to indigency determinations,” and “it is sufficiently clear from MCL 780.991(3)(a) that the judiciary has not been deprived of its constitutional authority in this area.” Oakland Co, 325 Mich App at 265. See Chapter 17 for more information on the constitutionality of the MIDCA.
14 The requirement that counsel be appointed for arraignment under MIDC Standard 4 does not conflict with the US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co, 325 Mich App at 269. “Absent a state constitutional prohibition, states are free to enact legislative ‘protections greater than those secured under the United States Constitution[.]’” Id., quoting People v Harris, 499 Mich 332, 338 (2016).
15 See Section 21.10 for discussion of biometric data collection requirements.
16 See Section 15.1(E) for more information on scheduling these hearings.
MCL 766.4 previously provided that, in a court of general criminal jurisdiction, the preliminary examination was to be scheduled for a date “not exceeding 14 days after the arraignment.” Effective May 20, 2014, and applicable to cases in which the defendant is arraigned in district court on or after January 1, 2015, 2014 PA 123 amended MCL 766.4 to require the court, at arraignment for a felony charge, to schedule “a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1. Effective January 1, 2015, ADM File No. 2014-42 amended MCR 6.110 (governing preliminary examinations) and added MCR 6.108 (governing probable cause conferences) to correspond to these statutory changes.
Because the proceedings in a designated case “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction,” MCL 712A.2d(7), these new requirements under amended MCL 766.4(1) may apply to designated proceedings. However, MCL 712A.2d and the court rules governing designated proceedings, including MCR 3.951, have not been amended to reflect these changes; therefore, it is unclear to what extent the new statutory and court rule requirements apply to designated cases (with the exception of MCR 6.110, which, under MCR 3.953(E), specifically applies to designated proceedings). See Section 15.9 for additional discussion of MCL 766.4; see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.
17 See Section 6.1(G) for discussion of MCR 3.935(C), which sets out factors that the Family Division, at the preliminary hearing in a delinquency case, must consider in determining whether to release or detain the juvenile.
18 See Section 6.1(H) for discussion of MCR 3.935(D)(1), which sets out conditions for the pretrial detention of a juvenile.
19 At arraignment for a felony charge, the court must schedule “a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1.
Because the proceedings in a designated case “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction,” MCL 712A.2d(7), these requirements under MCL 766.4(1) may apply to designated proceedings. However, MCL 712A.2d and the court rules governing designated proceedings, including MCR 3.951, have not been amended to reflect these requirements; therefore, it is unclear to what extent the statutory and court rule requirements apply to designated cases (with the exception of MCR 6.110, which, under MCR 3.953(E), specifically applies to designated proceedings). See Section 15.9 for additional discussion of MCL 766.4; see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.
20 See also MCR 3.912(C)(1), which provides, in part, that “[t]he judge who presides at the preliminary examination may not preside at the trial of the same designated case unless a determination of probable cause is waived.”