Arraignment

Arraignment

The critical-stage test asks what a lawyer's absence would cost the accused at a particular event, and arraignment is the clearest place to watch that question answered by what a procedure does rather than by what it is called. In the usual sequence, arraignment follows the indictment or information and consists of reading the charges to the accused and taking a plea in response.¹ Taking a plea sounds like a formality, especially when the plea is not guilty. Hamilton v. Alabama holds that the arraignment Alabama prescribed was a critical stage at which the Sixth Amendment right to counsel applies, and it reaches that result by examining what the accused had to do or lose at that moment.²

The petitioner in Hamilton was sentenced to death on a capital count charging breaking and entering a dwelling at night with intent to ravish.³ He had first been indicted for burglary arising from the same incident and arraigned with a lawyer present. A second indictment was then returned, and although his appointed counsel was told that he would be arraigned again, no lawyer appeared for that arraignment.⁴ When he later attacked the judgment, the Alabama Supreme Court acknowledged that state law gave him a right to counsel at arraignment, yet it denied relief because nothing showed that the absence of a lawyer had disadvantaged him when he pleaded not guilty.⁵

The United States Supreme Court reversed, and its reasoning began with what Alabama law made of the arraignment. The defense of insanity had to be pleaded then or the opportunity was lost: afterward the plea could be entered only in the trial judge's discretion, and a refusal was not reviewable on appeal. Pleas in abatement were due at arraignment, as were motions to quash an indictment because the grand jury systematically excluded one race or was otherwise improperly drawn.⁶ From those rules the Court concluded that arraignment in Alabama was a critical stage, because, in its words, “What happens there may affect the whole trial.”⁷

The Court compared the loss to a familiar one: defenses not asserted at that hearing may be as irretrievably lost as when a represented accused waives a right for strategic reasons.⁸ The comparison also shows what is special about the unrepresented case. A represented defendant who lets a defense go has made a choice on advice, whereas an unrepresented one may let it go without ever learning that it existed, and the forfeiture is just as final. A lawyer at arraignment is the only safeguard against that kind of silent loss, which is why the Court said that only counsel's presence could have enabled the accused to know all the defenses available and to plead intelligently.⁹

Because the reasoning runs from function, Hamilton does not say that every proceeding called an arraignment requires counsel. The Court set aside whatever role arraignment plays in other jurisdictions and decided only that in Alabama it is a critical stage.¹⁰ The word is therefore a poor guide, since the same label can name a decisive moment in one system and a ceremony in another. The inquiry is the second feature of the critical-stage test from the previous section: whether the accused must make a choice at the event through which available defenses may be irretrievably lost.¹¹ Nor is the holding confined to the capital setting in which it arose. Wade later described the principle as requiring counsel at the type of arraignment, Alabama's for example, where certain rights might be sacrificed or lost, and it attached no capital-charge limit to that description.¹²

The sources treat the trial-court arraignment as critical when it has the characteristics just described, meaning that action or inaction there can later be used against the accused.¹³

The second part of Hamilton concerns proof. The Alabama Supreme Court had denied relief because nothing showed a disadvantage, and the Court refused to make the right depend on such a showing, stating that when one pleads to a capital charge without a lawyer it does not stop to determine whether prejudice resulted.¹⁴ The reason lies in what the harm is. The injury from a missing lawyer at arraignment is a defense that was never raised, and a defense that nobody knew about leaves no trace. To demand proof of prejudice, the court would have to require the accused to show what a lawyer would have advised, which is the very knowledge the accused lacked. The Court therefore said that the degree of prejudice can never be known.¹⁵ A later concurring opinion in Chapman v. California restates the point in general terms: even before trial, when counsel has not been provided at a critical stage, courts do not stop to determine whether prejudice resulted.¹⁶

Two neighboring events are grouped with arraignment in the sources, although this chapter does not develop them. A first appearance before a magistrate is likely critical when action or inaction there can later be used against the accused, with a first appearance limited to setting bail remaining an open question, and a preliminary hearing is critical when the state chooses to provide one.¹⁷ The accused also has a right to a lawyer at the moment a plea must be entered at arraignment.¹⁸

On an exam, students lose this issue when they treat the label arraignment as the answer, whether to require counsel or to excuse it. The better move is to ask what the jurisdiction requires the accused to assert or surrender at that hearing. If defenses are lost there, counsel is required, and the absence of counsel is itself the violation, with no inquiry into prejudice. The next section moves from a hearing in court to identification procedures held after charge, where the same question about what counsel's absence puts at risk is asked on different facts.