117.1Procedure for Arraignment
- Defendant has both a constitutional and statutory right to the presence of counsel at arraignment.
- Arraignment is generally only required upon a defendant’s written request under G.S. 15A-941.
An arraignment is a proceeding whereby a defendant is brought before a judge having jurisdiction to try the offenses, and the judge advises the defendant of the pending charges and directs the defendant to plead to them. The prosecutor “must read the charges or fairly summarize them to the defendant.” Should the defendant thereafter fail to plead, “the court must record that fact and the defendant must be tried as if he had pleaded not guilty.” G.S. 15A-941.
G.S. 7A-49.6 broadly authorizes the use of audio and video transmission to conduct "all types" of court proceedings as long as the presiding judge and participants can see and hear each other, there is no objection made for good cause, the videoconferencing application used has been approved by the Administrative Office of the Courts, and the procedures "safeguard the constitutional rights of those persons involved in the proceeding and preserve the integrity of the judicial process," including preserving the defendant's right to confer confidentially with counsel and confront witnesses, if applicable. G.S. 7A-49.6 was established by S.L. 2017-47 (S.B. 255), effective June 18, 2021, which also repealed the provisions of G.S. 15A-941 that had previously limited the use of remote audio and video transmission to noncapital cases only.
Right to Counsel
If a defendant appears at arraignment without an attorney, the judge must advise defendant of his or her rights in compliance with G.S. 15A-942 and 15A-1012(a) before the defendant may be called upon to plead, even though the defendant previously may have waived counsel or been denied appointed counsel (for example, at first appearance on a felony in district court). See State v. Bullock, 316 N.C. 180 (1986); State v. Sanders, 294 N.C. 337 (1978)
Additionally, in a case within the original jurisdiction of superior court, which generally includes felonies plus any accompanying misdemeanors described in G.S. 7A-271, a defendant who has waived counsel may not plead within seven days following the date the defendant was arrested or otherwise informed of the charge. See G.S. 15A-1012(b), Official Commentary.
Arraignment in District Court
When the docket (calendar) is called in district court, defendants are often informally asked how they intend to plead to charges against them as an indication of what plea they plan to enter at arraignment. It is debatable whether arraignment actually occurs when district court opens and the misdemeanor docket is called, or later when each defendant is called before a judge to enter a plea to each charge, but the better view is that arraignment occurs when a defendant enters a plea before a judge. See State v. Brunson, 327 N.C. 244 (1990), discussed below.
When does jeopardy attach in district court? In State v. Brunson, 327 N.C. 244 (1990), the court considered whether jeopardy had attached in a district court case simply because the defendant had been arraigned and had pled not guilty. In reversing the court of appeals [and effectively reversing prior cases, such as State v. Coats, 17 N.C. App. 407 (1973) and State v. Lee, 51 N.C. App. 344 (1981)], the court ruled that jeopardy attaches in district court only after the trial judge begins to hear the evidence. See also Serfass v. United States, 420 U.S. 377 (1975) (jeopardy attaches in non-jury trials when the first witness is sworn).
Arraignment in Superior Court
- Defendant Must File a Timely Request for Arraignment
A defendant is entitled to be arraigned in superior court only if the defendant files a written request for an arraignment with the clerk of superior court not later than 21 days after service of an indictment. If an indictment is not required to be served under G.S. 15A-630, a written request for arraignment must be filed not later than 21 days from the return of the indictment as a true bill. On return of an indictment as a true bill, the court must immediately cause notice of the 21-day time limit to be mailed to the defendant and to the defendant’s counsel of record, if any. G.S. 15A-941(d). If the defendant does not file a written request for arraignment, then the court must enter a not guilty plea on the defendant’s behalf. G.S. 15A-941(d). G.S. 15A-941(e) clarifies that nothing in this statute prevents the district attorney from calendaring cases for administrative purposes.
- Calendaring Requirements in Counties with 20 Weeks or More of Criminal Trial Sessions Annually
In counties with 20 weeks or more of criminal trial sessions annually, as specified in G.S. 15A-943, arraignments must take place on at least the first day of every other week in which criminal cases are heard, and no cases in which the presence of a jury are required may be calendared for the same day. The purpose of calendaring arraignments is to promote the efficient use of court time and to “minimize the imposition upon jurors and witnesses, not to afford defendant any particular rights or to insure the impartiality of jurors.” State v. Elkerson, 304 N.C. 658, 661 (1981). Thus, failure to follow proper arraignment procedures in the specified counties (for example, arraignment calendared when jury matters scheduled, and prospective jurors allowed to observe co-conspirators’ arraignment), does not in itself entitle defendant to a new trial.
- Failure to Follow Calendaring Requirements for Counties Specified in G.S. 15A-943
Failure to calendar an arraignment in such counties, although a violation of G.S. 15A-943(a), does not by itself constitute reversible error when a defendant is nevertheless given at least a week before trial, as required by 15A-943(b). State v. Richardson, 308 N.C. 470 (1983). But when a defendant is tried during the same week as arraignment, without consent, prejudice is presumed and a new trial is required. State v. Shook, 293 N.C. 315 (1977) (trial court erred in proceeding with trial over defendant’s objection on the same day as arraignment on superseding indictment). But remember that a defendant is not entitled to an arraignment unless the defendant makes a timely request. State v. Lane, 163 N.C. App. 495 (2004) (Because the record in this case did not show that the defendant requested an arraignment on his habitual felon charge, there was no error in proceeding to the hearing in the same week as the arraignment on the charge.); State v. Styles, 93 N.C. App. 596 (1989) (defendant may also waive right not to be tried in same week of arraignment; defendant waived right by failing to request continuance).
- Failure to Conduct an Arraignment, if One Is Requested.
The key inquiry in determining whether a conviction should be reversed for failing to conduct formal arraignment is whether defendant was prejudiced, not whether arraignment procedure was flawed or arraignment was never held. State v. Brown, 315 N.C. 40 (1985). Only if the defendant shows that his or her right to a fair trial was prejudiced or that he or she was unaware of the charges is it reversible error to fail to formally arraign the defendant. State v. Smith, 300 N.C. 71 (1980). See also State v. Silva, 796 S.E.2d. 72 (2017) (trial court did not commit reversible error when it failed to formally arraign the defendant on charges of habitual DWI and driving while license revoked pursuant to G.S. 15A-928(c)). Failure to conduct arraignment for a capital charge does not constitute reversible error per se. State v. Brown, 313 N.C. 40 (1985); State v. Brown, 306 N.C. 151 (1982). A defendant must show prejudice under the standard set out above.
- When Jeopardy Attaches in Superior Court.
In superior court jury trials, jeopardy attaches when the jurors are sworn and impaneled. Crist v. Bretz, 437 U.S. 28 (1978); State v. Shuler, 293 N.C. 34 (1977).
- Effect of Announcing Charge at Arraignment.
Prosecutor’s pretrial announcement of intent to seek conviction for only some of the charges in the indictment or for lesser-included offenses does not immediately have the effect of an acquittal of the other or greater charges contained in the indictment. Such an announced election becomes binding on the state only when jeopardy has attached (when the jury has been impaneled and sworn). Until that time, a prosecutor may withdraw a previously announced election and prosecute the defendant for all crimes charged in the indictment. However, proper notice of withdrawal and election must be given to ensure a defendant’s rights to due process and effective assistance of counsel. State v. Hickey, 317 N.C. 457 (1986) (election properly withdrawn by prosecutor when defendant was given actual notice, three months before trial, of prosecutor’s intent to proceed with greater charge); State v. Jones, 317 N.C. 487 (1986) (binding election was made by prosecutor when prosecutor unequivocally arraigned defendant on lesser-included offense and thereafter failed to give any notice, before jeopardy attached, of intent to prosecute greater offense; without proper notice, prosecutor’s election amounted to acquittal of greater offense).
- Arraignment is Required for Trial De Novo Cases in Superior Court in Counties Subject to Mandatory Arraignment
In counties where G.S. 15A-943 applies, the statutory arraignment provisions also apply to cases appealed from district court for trial de novo in superior court. See State v. Vereen, 177 N.C. App. 233 (2006). In Vereen, the defendant was convicted in district court in Durham County, which is subject to G.S. 15A-943, and appealed for trial de novo in superior court. The defendant objected to being formally arraigned and tried in superior court on the same day, and moved for a continuance so he could obtain evidence that he had subpoenaed, but the judge proceeded immediately to trial. The court ruled that proceeding to trial violated G.S. 15A-943(b), which prohibits a trial without the defendant’s consent in the same week in which the defendant is arraigned, and the defendant’s motion for a continuance to obtain evidence constituted a lack of consent to a trial during the same week. The court noted that the defendant was not required to make a written request for arraignment within 21 days of indictment pursuant to G.S. 15A-941(d), since it was an appeal for trial de novo and there was no indictment in this case, but an arraignment was still required under G.S. 15A-943 to enable the defendant to submit a plea in superior court.