Proposed Rules Archives

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

Suggested Changes to
CrRLJ 4.1 ARRAIGNMENT

Purpose: The suggested changes to CrRLJ 4.1 concern a defendant’s access to an attorney at the arraignment stage of a criminal proceeding. 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, in addition to asking a defendant to enter a plea of guilty or not guilty. While arraignment is a critical stage in the proceedings and thus should require the presence of counsel pursuant to CrRLJ 3.1, the current version of CrRLJ 4.1 is ambiguous regarding the requirement for counsel. The suggested amendments to this rule clarify the requirement for counsel to be available at arraignment for those unable to obtain 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.

The lack of clarity in CrRLJ 4.1 plays some 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, 2006 Wash.LEXIS 600 (2006).)

The suggested changes to CrRLJ 4.1 eliminate any ambiguity about the right to counsel at arraignment. Suggested CrRLJ 4.1(c) (1) mirrors the language found in CrR 4.1(c), which is the superior court rule. CrRLJ 4.1(c) (2) is added to make it clear that an attorney who acts as an “attorney of the day” for all unrepresented defendants fulfills the role of counsel. An “attorney of the day,” by contract, represents all unrepresented defendants in a limited manner, i.e., for arraignment purposes only. This provision will allow compliance with the new rule by courts that do not screen and approve for appointment of counsel prior to arraignment. The rule does not require use of an “attorney of the day” and leaves courts free to provide counsel in other ways, such as screened appointments or video arraignments.

The suggested rule amendments also eliminate the waiver of jury trial at arraignment (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 in the arraignment rule for courts of limited jurisdiction will create greater uniformity of practice, which leads to greater confidence within the Bar and the public. Judges who have not had the support of the executive for funds to provide counsel for unrepresented defendants at arraignment will have the force of the court rule behind budget requests.