Arraignment in Open Court

Arraignment in Open Court

The arraignment is the proceeding at which a defendant is first asked how to plead, and Rule 10(a) controls both its setting and its order. It must be conducted in open court and must consist of three steps performed in sequence.¹ The public setting does two jobs. Observers can see that the accusation is being put to the defendant fairly, and the proceeding produces a transcript that a reviewing court can read years later, so the question whether the defendant understood the charge does not depend on anyone's memory. The later sections on constitutional validity and the plea colloquy rest on that record.

The order of these steps follows from what a plea is. A plea is the defendant's answer to an accusation, and an answer means little unless the defendant has been told what is alleged. Placing the copy and the reading ahead of the question therefore keeps the court from asking for a commitment on a charge the defendant has not yet seen or heard. The two notice steps also give practical effect to the Sixth Amendment's guarantee that the accused be informed of the nature and cause of the accusation.⁶ They back each other up, since the written copy serves a defendant who wants to study the exact wording and the oral reading or summary serves one who cannot easily read it. On exam facts the usual error is to treat the request for a plea as the arraignment's opening act, when the plea is requested last.

The arraignment also matters because of who should stand beside the defendant at it. In United States v. Wade the Court recalled that the period from arraignment to trial is among the most critical in a prosecution, and that at an arraignment of the Alabama type, where available defenses may be irretrievably lost if they are not asserted then, the accused needs the guidance of a lawyer.⁷ Estelle v. Smith, quoting Kirby v. Illinois, confirms that the Sixth Amendment right to a lawyer attaches at or after the start of adversary judicial proceedings, whether by formal charge, preliminary hearing, indictment, information, or arraignment.⁸ By the moment the court asks for a plea, then, the defendant is entitled to counsel's advice about how to answer.

Boykin v. Alabama shows how little the arraignment sequence guarantees by itself. A grand jury returned five indictments against Boykin, then 27 years old, for common-law robbery, an offense punishable by death in Alabama, and the trial court found him indigent and appointed counsel.⁹ Three days later, at his arraignment, he pleaded guilty to all five indictments, and so far as the record showed, the judge asked him no questions about the plea and he never addressed the court.¹⁰ Rule 10(a) governs how the plea is requested. The questions that the judge in Boykin never asked belong to the plea colloquy and the constitutional test for validity, both taken up later. The same is true of the circumstances in which a defendant may waive appearance at arraignment, which Rule 10 allows in some cases and which the section on the defendant's presence develops.¹¹