Proposed Rules Archives

• Proposed Changes to CrRLJ 4.1 - Arraignment (in Word Format)
• Comments Received for CrRLJ 4.1 - Arraignment

Purpose: The suggested changes to CrRLJ 4.1 require that a defendant be informed of his or her right to counsel prior to being arraigned in a court of limited jurisdiction. If the defendant is indigent, the court will be required to assign counsel, unless waived by the defendant.

CrRLJ 4.1 governs procedures for arraignments in courts of limited jurisdiction. In these courts, arraignment is usually the first appearance for persons charged with a misdemeanor offense. (It is usually only in-custody misdemeanor defendants who are seen at a CrRLJ 3.2.1 preliminary appearance.)

At arraignment, defendants are apprised of their rights in a criminal case and of the charges against them for the first time. At the arraignment hearing the judge may also make a finding of probable cause and set bail and other conditions of release. The conditions of release that may be imposed include electronic home detention, GPS monitoring, alcohol and drug use restrictions and no-contact orders. Violation by the defendant of any one of these conditions of release may result in the defendant’s pretrial incarceration. Finally, the defendant will be required to enter a plea of guilty or not guilty.

The court rules provide that a lawyer must be provided at every critical stage of a criminal case. See CrRLJ 3.1 (b) (2). Arraignment is a critical stage in the proceedings and the opportunity to consult with counsel should be required. However, the current version of CrRLJ 4.1 is ambiguous regarding the requirement for counsel. The DMCJA’s suggested amendments to this rule clarify that the court must inform the defendant of his or her right to have access to counsel before being arraigned, and that the court must appoint counsel for an indigent defendant before arraignment, unless the defendant waives his or her right to counsel.

The current version of CrRLJ 4.1 states that a defendant may not be forced to enter a plea to the complaint until he or she has had a reasonable time to examine it and to consult with a lawyer, “if requested”. See CrRLJ 4.1(a) (2). The rule also requires the judge to “advise” a defendant on the record of the “right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one”. See CrRLJ 4.1(a) (3). By contrast, the superior court arraignment rule, CrR 4.1(c), requires that the judge inform any defendant who appears without counsel at arraignment of his or her right to have counsel before being arraigned. In the superior court, a judge is also obligated to assign counsel to a defendant if a defendant is not represented and is unable to obtain counsel. CrR 4.1(c).

The lack of clarity in CrRLJ 4.1 plays a role in the absence of uniformity in arraignment practices in courts of limited jurisdiction in Washington state. While some local jurisdictions provide counsel for unrepresented defendants at arraignment, many do not. The failure to provide counsel at arraignment erodes the crucial right to counsel firmly established in the Sixth and Fourteenth Amendments to the U.S. Constitution and in the Washington State Constitution, where the right to counsel is co-extensive with its federal counterpart. See Powell v. Alabama, 287 U.S. 45 (1932); Kirby v. Illinois, 406 U.S. 682 (1972); Coleman v. Alabama, 399 U.S. 1 (1970); State v. Long, 104 Wn. 2d 285 (1985). At arraignment calendars without defense counsel, prosecutors are able to negotiate directly with unrepresented and often unsophisticated defendants at their first appearance; and judges often take guilty pleas from hurried and confused defendants before the defendants can review the matter with a lawyer. Moreover, in many courts, neither a defense lawyer nor a prosecutor is present at the arraignment hearing. The judge then is forced to play the roles traditionally assigned to advocates in our criminal justice system. A 2006 decision of the Commission on Judicial Conduct, In re Ottinger, identified many defective practices relating to the judge’s handling of preliminary matters at arraignment. However, the decision lauds Judge Ottinger’s decision to require a public defender at arraignment calendars to help remedy the concerns of the Judicial Conduct Commission:

Following June 2005, Respondent began requiring both prosecutors and public defenders to attend all arraignments and bail hearings in her courtroom. While Respondent ultimately waived the requirement for prosecutors to appear, she did continue to require the presence of public defenders at this critical stage of the proceeding…. This procedure ensured that defendants would have attorneys present to advise them at their first appearance and arraignments. This procedure was a very positive change, protected defendants’ rights, and may serve as a model for other courts.

In re Ottinger, CJC No. 4475-F-119, page 6, lines 20-28 through page 7, line 1 (2006). (Commission recommendation approved by Washington Supreme Court in In re Ottinger, Supreme Court Order No. 200,389-3 (July 20, 2006).

The suggested changes to CrRLJ 4.1 eliminate any ambiguity about the right to counsel at arraignment. The revised amendment to CrRLJ 4.1(c) mirrors the language found in the superior court rule, CrR 4.1(c), except that CrRLJ 4.1 adds the words, “due to indigence” to clarify that only indigent defendants are entitled to have counsel assigned by the court. The proposed amendment to CrRLJ 4.1(c) reads: “If the defendant appears without counsel, the court shall inform the defendant of his or her right to have counsel before being arraigned. The court shall inquire if the defendant has counsel. If the defendant is not represented and is unable to obtain counsel, due to indigence, counsel shall be assigned by the court, unless otherwise provided.” (Emphasis added.) Superior courts acting under CrR 4.1 appear to have had little difficulty in complying with the requirement that indigent defendants have the opportunity to have the advice of counsel at arraignment.

Under the amended version of CrRLJ 4.1, jurisdictions will have flexibility in determining how to provide counsel for indigent defendants at arraignment. Options include the presence of an “attorney of the day” for all indigent persons on the calendar or video or telephone consultation at the time of arraignment. Many jurisdictions have pre-screening processes in place, and once a defendant has been determined to meet the criteria for indigence, the defendant is assigned to appear at a calendar time at which a public defender is already assigned.

Although the guilty plea form required by CrRLJ 4.2(g) sets out a written advisement of rights and information as to the consequences of a plea of guilty (in five single-spaced pages), it may be unrealistic to believe that unrepresented defendants at arraignment calendars have the same understanding of their rights as a represented defendant. People entering the justice system are often ignorant of legal concepts, unsophisticated, low on the literacy continuum, frightened and intimidated by authority. There are no voluntary programs that provide attorneys for indigent persons at arraignment. Defendants charged with crimes in the courts of limited jurisdiction should have the same basic due process rights as those charged with crimes in the superior court.

Several other suggested amendments to CrRLJ 4.1 will make the rule consistent with the superior court rule except for some instances where CrRLJ 4.1 identifies the charging document using the language of the court of limited jurisdiction rules (i.e., complaint or citation and notice) and not the language of superior court rules (information or indictment). CrRLJ 4.1(a) (1) changes the time for arraignment from 15 days to 14 days. The Court Rules Committee could not find any reason the superior court rule specified 14 days and the court of limited jurisdiction rule 15 days. The sections on waiver of counsel (suggested CrRLJ 4.1(d)), reading the defendant’s name and the charge (suggested CrRLJ 4.1(e) and (f)) also now conform to the superior court rule.

The suggested rule amendments also eliminate the waiver of jury trial at arraignment in CrRLJ 4.1(c) (1). A waiver at this stage is not found in the superior court arraignment rule and waiver of the constitutional right to jury at a preliminary appearance, without the benefit of time to thoroughly consult with counsel, is ill-advised. Although the current rule allows a defendant to withdraw the waiver within 10 days, this does not allow sufficient time to consult with counsel.

The changes proposed to CrRLJ 4.1 will clarify the right to counsel at the critical stage of arraignment. The changes will ensure greater uniformity of practice in the courts, which leads to greater confidence within the Bar and the public. Judges will have the force of the court rule behind budget requests to provide counsel for indigent defendants at arraignment.