4.7Right to a Prompt Arraignment

A.Arraignment “Without Unnecessary Delay”

Michigan law mandates that an arrestee be arraigned “without unnecessary delay.” See MCL 764.1b; MCL 764.13; MCL 764.26; People v Cipriano, 431 Mich 315, 319 (1988); see also MCR 6.104(A). “[T]he state constitutional guarantee of due process of law requires an arrestee’s prompt arraignment.” People v Mallory, 421 Mich 229, 239 (1984), citing Const 1963, art 1, § 17.

“[I]n all but the most extraordinary situations,” an individual arrested without a warrant may not be detained for more than 48 hours without a judicial determination of probable cause. People v Whitehead, 238 Mich App 1, 4 (1999). A delay of more than 48 hours between a defendant’s warrantless arrest and the probable cause hearing is presumptively unreasonable and shifts the burden to the government to show the delay was caused by extraordinary circumstances. Riverside Co v McLaughlin, 500 US 44, 56-57 (1991). Moreover, a delay of less than 48 hours may be unreasonable under certain circumstances. Id. at 56.

“Both the constitutional and statutory [arraignment] requirements are designed to advise the arrestee of his constitutional rights and the nature of the charges against him by an impartial judicial magistrate, to insure that the arrestee’s rights are not violated, and to afford the arrestee an opportunity to make a statement or explain his conduct in open court if he so desires.” Mallory, 421 Mich at 239 (citations omitted). “Finally, prompt arraignment affords the arrestee an opportunity to have his right to liberty on bail determined.” Id.

Express statutory authority for felony arraignments is contained in MCL 764.26:

“Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer.”

General statutory authority for arraignments following a warrantless arrest for an offense of unspecified severity is contained in MCL 764.13:

“A peace officer who has arrested a person for an offense without a warrant shall without unnecessary delay take the person arrested before a magistrate of the judicial district in which the offense is charged to have been committed, and shall present to the magistrate a complaint stating the charge against the person arrested.”

MCR 6.104(A), which applies to both felonies and misdemeanors,¹ provides:

“Arraignment Without Unnecessary Delay. Unless released beforehand, an arrested person must be taken without unnecessary delay before a court for arraignment in accordance with the provisions of [MCR 6.104], or must be arraigned without unnecessary delay by use of two-way interactive video technology in accordance with MCR 6.006(A). The arrested person is entitled to the assistance of an attorney at arraignment unless

(1) the arrested person makes an informed waiver of counsel or

(2) the court issues a personal bond and will not accept a plea of guilty or no contest at arraignment.”

B.Consequences of a Lengthy Delay

“‘[A]n improper delay in arraignment . . . does not entitle a defendant to dismissal of the prosecution.’” People v Cain (Cain I), 299 Mich App 27, 49 (2012), vacated in part on other grounds 495 Mich 874 (2013)², quoting People v Harrison, 163 Mich App 409, 421 (1987). However, failure to conduct a district court arraignment without unnecessary delay may jeopardize the admissibility of a confession or physical evidence in subsequent court proceedings against the defendant. Cain I, 299 Mich App at 49 (citations omitted). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 5, for a detailed discussion of the consequences of a lengthy delay.