The Arraignment in a Michigan Domestic Violence Case: Your First Court Date

The arraignment is the hearing at which a person charged with domestic violence is formally told the charge and the court decides pretrial release. In a misdemeanor case the court tells the defendant the name of the offense, the maximum sentence, and the rights to a lawyer and to a trial.^[1] The court then decides whether the defendant stays in custody or is released, and on what conditions.^[2]

An arraignment is not a trial. What is addressed is the right to a lawyer, whether a plea is entered, what the bond is, and whether a no-contact order goes into effect. This page walks through each of those in order.

When does the arraignment happen?

Unless released beforehand, an arrested person must be taken before a court for arraignment "without unnecessary delay," either in person or by two-way interactive video.^[6] A police officer who arrests someone without a warrant has a matching statutory duty to bring the person before a magistrate without unnecessary delay and present a complaint stating the charge.^[7]

Domestic assault arrests work differently from most misdemeanor arrests in one respect. For most warrantless misdemeanor arrests, a person can post an interim bond at the police station or jail when no magistrate is available.^[8] A person arrested without a warrant for domestic assault cannot. The statute says that person "shall be held until he or she can be arraigned or have interim bond set by a judge or district court magistrate."^[3] The same hold applies to a person arrested on a warrant for domestic assault or aggravated domestic assault against a spouse, former spouse, dating partner, co-parent or household member.^[9]

Some websites describe a "20-hour hold." The current text of MCL 780.582a contains no number of hours.^[10] The outer limits come from elsewhere: the court rule's "without unnecessary delay" standard, and the constitutional rule that a delay of more than 48 hours between a warrantless arrest and a probable cause determination is presumptively unreasonable.^[6][11] The details are in How long are you held after an arrest?

Not everyone is arrested first. A person who receives a charge in the mail or learns of a warrant should read Charged without being arrested.

In person or by video?

The arraignment rule allows the hearing to be held by two-way interactive video technology.^[6] Where the court rules make videoconferencing the preferred mode, which includes district court arraignments for defendants who are in custody, any participant may ask to appear in person, and the rule expressly includes a victim as defined by the Crime Victim's Rights Act.^[12] Whether a given court arraigns from the jail by video or brings people to the courtroom is a matter of local practice.

What the judge covers at a misdemeanor arraignment

A misdemeanor domestic assault charge is handled from start to finish in district court, which has jurisdiction over all misdemeanors.^[13] Whenever a defendant is arraigned on an offense within the district court's jurisdiction, the defendant must be informed of:

• the name of the offense and the maximum sentence permitted by law;^[1]
• the right to the assistance of an attorney at all court proceedings, including the arraignment itself;^[1]
• the right to an appointed attorney, when the defendant qualifies;^[1]
• the right to a trial, and to a trial by jury when the law provides one.^[1]

The maximum sentences for each domestic violence offense are collected in the penalties chart.

The right to a lawyer at the first appearance

An arrested person is entitled to the assistance of an attorney at arraignment unless the person makes an informed waiver of counsel, or the court issues a personal bond and will not accept a guilty or no contest plea at that hearing.^[14]

In a misdemeanor case, an indigent defendant has a right to an appointed attorney whenever the charge carries a minimum jail term on conviction or the court determines it might impose a sentence of incarceration, even a suspended one.^[15] The right to an attorney is not waived unless the defendant has been informed of it and waives it in writing or orally on the record.^[16] The ability to post bond does not make a person ineligible for an appointed lawyer.^[17] The process is explained in The right to a lawyer and Court-appointed lawyer or hired lawyer.

Is a plea entered at the arraignment?

The pleas available in Michigan are not guilty, guilty, no contest (nolo contendere), guilty but mentally ill, and not guilty by reason of insanity; a no contest plea needs the court's consent. If a defendant stands mute or refuses to plead, the court enters a not guilty plea.^[18]

A court may not accept a guilty or no contest plea unless it is convinced that the plea is understanding, voluntary and accurate.^[19] The crime victim statute anticipates that some misdemeanor defendants plead at the arraignment: the prosecutor's duty to consult the victim about a plea or dismissal applies "if the defendant has not already entered a plea of guilty or nolo contendere at the arraignment."^[20] The difference between the two pleas, and what each one means later, is covered in Guilty or no contest.

How a felony arraignment is different

A felony domestic violence charge also starts in district court, which handles felonies through the preliminary examination and until the case is bound over to circuit court.^[13] At the felony arraignment the court states the offense and its maximum possible prison sentence, advises an unrepresented defendant of the right to remain silent and the right to a lawyer, and decides pretrial release. The court "may not question the accused about the alleged offense or request that the accused enter a plea."^[4]

The court also sets two dates: a probable cause conference not less than 7 days or more than 14 days after the arraignment, and a preliminary examination not less than 5 days or more than 7 days after that conference.^[21] Those steps are explained in the felony case timeline.

Question	Misdemeanor arraignment	Felony arraignment in district court
What the court tells the defendant	Name of the offense, maximum sentence, rights to counsel and to a trial[1]	The offense, its maximum prison sentence, the right to remain silent and the right to a lawyer[4]
Is a plea taken?	A plea of guilty or no contest can be entered at the arraignment[20]	The court may not request a plea[4]
Pretrial release decided?	Yes[2]	Yes[4]
Next dates	The court may schedule a pretrial conference[22]	Probable cause conference in 7 to 14 days, then preliminary examination[21]

The bond decision

At arraignment the court must order that, pending trial, the defendant be held in custody, released on personal recognizance or an unsecured appearance bond, or released conditionally, with or without money bail.^[2] Personal recognizance is the starting point: the court must use it unless it determines that such release will not reasonably ensure the defendant's appearance or will present a danger to the public.^[23]

In deciding, the court looks at the defendant's prior record, record of appearing in court, substance abuse history, the seriousness of the offense and the presence or absence of threats, employment, and community and family ties, among other factors.^[24] The Domestic Violence Benchbook's advisory committee also tells judges to assess whether circumstances indicate the defendant is likely to kill or seriously injure an intimate partner, which it calls assessing "lethality factors."^[25] The full list of conditions is in Bond conditions in domestic violence cases.

No-contact conditions at the arraignment

A judge who releases a defendant on protective conditions must make a finding of the need for them and tell the defendant, orally on the record or in a personally delivered writing, what the specific conditions are and that a violation means arrest without a warrant and possible forfeiture or revocation of bail.^[26] The order is then entered into the Law Enforcement Information Network (LEIN).^[27]

The court may make a no-contact condition effective immediately, while the defendant is still in custody, if that is reasonably necessary to protect a named person or the integrity of the proceeding.^[5] A defendant who has not yet walked out of the jail can already be bound by it. What the condition covers is explained in No-contact orders explained.

If you are the person named as the victim

If you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and available 24/7 at 1-800-799-SAFE (7233), or by texting START to 88788.^[28]

The complaining witness is not a party to the arraignment, and the Domestic Violence Benchbook advises courts not to ask that person to approve or agree to release conditions.^[29] In a misdemeanor domestic assault case the investigating police agency must, within 72 hours of the arrest, give the victim notice of the availability of pretrial release, the sheriff's phone number, and notice that the victim may call to learn whether the defendant has been released.^[30] In a felony case that notice is due not later than 24 hours after the arraignment.^[31] These and other rights are set out in Crime victim rights in domestic violence cases.

What people get wrong about arraignments

The first mistake is expecting the judge to hear the facts. The court rule for felony arraignments bars the court from questioning the accused about the alleged offense, and an unrepresented defendant is told that anything said can be used against him or her.^[4] In a misdemeanor case the arraignment settles guilt only if the defendant pleads guilty or no contest and the court accepts the plea.^[20][19]

The second is assuming that a missed court date can be fixed later. The usual 48-hour waiting period before a bench warrant issues does not apply when the case is for an assaultive crime or a domestic violence offense.^[32]

The third is treating the bond paperwork as a formality. Under Michigan law a court's decision setting bond is a court order.^[33] Its conditions can control where the defendant lives and whom the defendant may contact from that moment.^[34] Practical preparation is covered in How to prepare for your arraignment and The first 48 hours after an arrest.