117.1 – Procedure For Arraignment - NC PRO

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  1. Table of Contents
  2. 100. Pretrial
    1. Charging Process
      1. 101. Jurisdiction
        1. 101.1 – Jurisdiction: Territorial, Personal, & Subject Matter
        2. 101.2 – Challenges to Jurisdiction
        3. 101.3 – Jurisdiction of Officers and Judicial Officials
      2. 102. Venue
        1. 102.1 – Rules for Determining Venue
        2. 102.2 – Challenges and Motions to Change Venue
      3. 103. Criminal Pleadings
        1. 103.1 – Types of Criminal Pleadings
        2. 103.2 – Common Pleading Defects
        3. 103.3 – Larceny and RDO Pleading Defects
        4. 103.31 – Drug Pleading Defects
        5. 103.4 – Amending, Replacing or Recharging
      4. 104. Double Jeopardy
        1. 104.1 – Overview and Sources
        2. 104.2 – Jurisdiction and Eligible Proceedings
        3. 104.3 – Attachment and Termination
        4. 104.4 – The Same Offense
        5. 104.5 – A Prior Acquittal
        6. 104.6 – A Prior Conviction
        7. 104.7 – A Prior Mistrial
        8. 104.8 – Multiple Punishments
        9. 104.9 – Collateral Estoppel
        10. 104.91 – Separate Sovereigns and Joinder
      5. 105. Ex Post Facto Laws
      6. 106. Selective Prosecution
      7. 107. Grand Jury Proceedings
      8. 108. Victims' Rights
    2. Early Stages
      1. 110. Initial Appearance/First Appearance
        1. 110.1 – Overview and Summary
        2. 110.2 – Suggested Procedures
      2. 111. Right to Counsel
        1. 111.1 – Sources and Scope
        2. 111.2 – When Right to Counsel Applies
        3. 111.3 – Limitations on the Right to Counsel
        4. 111.4 – Waiver/Forfeiture of Right to Counsel
        5. 111.5 – Determining Indigency
        6. 111.6 – Experts/Resources for Indigent Defendants
        7. 111.7 – Suggestions for Handling Indigent Cases
      3. 112. Pretrial Release
        1. 112.1 – Eligibility and Conditions
        2. 112.2 – Modification and Revocation
      4. 113. Communicable Diseases
        1. 113.1 – Detaining and Testing Defendants
        2. 113.2 – Prosecuting Violations
      5. 114. Extradition
        1. 114.1 – Overview and Process
        2. 114.2 – Interstate Compact and Detainers
        3. 114.3 – Common Issues and Questions
      6. 115. Calendaring and Docketing Duties
      7. 116. Private Prosecutors
      8. 117. Arraignment
        1. 117.1 – Procedure for Arraignment
        2. 117.2 – Waiver of Arraignment
      9. 118. Probable Cause Hearing
        1. 118.1 – Summary and Overview
        2. 118.2 – Probable Cause Hearing Procedures
      10. 119. Discovery
        1. 119.1 – Defendant’s Discovery Rights
        2. 119.2 – State’s Discovery Rights
        3. 119.3 – Obligations, Remedies, and Sanctions
      11. 120. Nontestimonial Identification Orders
      12. 121. Failure to Appear
        1. 121.1 – FTA, OFA, and V/L
        2. 121.2 – Reinstatement of a V/L Case
    3. Before Trial
      1. 130. Capacity to Proceed
        1. 130.1 – Basic Requirements and Overview
        2. 130.2 – Determining Capacity to Proceed
        3. 130.3 – Next Steps After Capacity Evaluation
        4. 130.4 – Suggested Questions for Mental Health Expert
      2. 131. Suppression Motions
        1. 131.1 – Content & Statutory Requirements
        2. 131.2 – Hearing & Burden of Proof
        3. 131.3 – Rulings & Appeals
      3. 132. Joinder and Severance
        1. 132.1 – Offenses and Defendants
        2. 132.2 – Severance and Bruton Issues
      4. 133. Guilty Pleas and Plea Agreements
        1. 133.1 – Negotiation and Terms
        2. 133.2 – Entry and Enforcement of Plea
        3. 133.3 – Grants of Immunity
      5. 134. Deferral and Discharge Agreements
        1. 134.1 – General Offenses
        2. 134.2 – Drugs and Specific Offenses
      6. 135.1 Motions In Limine
      7. 136. Speedy Trial Motions
        1. 136.1 – Constitutional and Statutory Protections
        2. 136.2 – Procedure, Hearings, Burden of Proof
        3. 136.3 – Prisoners and Interstate Detainers
  3. 200. Trial
    1. Special Topics
      1. 201. Alleging & Proving Prior Convictions
        1. 201.1 – Pleadings and Types
        2. 201.2 – Court Procedure and Proof
        3. 201.3 – Punishment and Sentencing
      2. 202.1 State’s Election of Offenses at Trial
      3. 203. Recusal
        1. 203.1 – Recusal of Judge
        2. 203.2 – Recusal of Prosecutor
      4. 204. Contempt
        1. 204.1 – Which Type: Criminal or Civil?
        2. 204.2 – Criminal Contempt
        3. 204.3 – Civil Contempt
      5. 205.1 Prosecuting a Business or Organization
    2. Witnesses and Subpoenas
      1. 210. Subpoena to Produce Documents
        1. 210.1 – Contents and Basic Procedure
        2. 210.2 – Out-of-State or Confidential Records
        3. 210.3 – Objections & Compliance
      2. 211. Securing Attendance of Witnesses
        1. 211.1 – Generally
        2. 211.2 – Out-of-State Witnesses
        3. 211.3 – Defendants and Witnesses in Custody
      3. 212.1 Sequestering a Witnesses
    3. In Trial
      1. 220.1 Recording Trial Proceedings
      2. 221. Duties/Conduct of Trial Judge
        1. 221.1 – Must Be Fair and Impartial
        2. 221.2 – Control the Courtroom and Proceedings
      3. 222. Defendant’s Rights in Court
        1. 222.1 – Right to Be Present
        2. 222.2 – Appear in Civilian Clothing, Free of Restraints
        3. 222.3 – Right to Confront, Testify, Allocute
      4. 223. Jury Selection
        1. 223.1 – Right to Jury Trial, Waiver
        2. 223.2 – Juror Qualifications
        3. 223.3 – Voir Dire Scope and Topics
        4. 223.4 – Challenges and Excusing Jurors
      5. 224.1 Opening Statement
      6. 225. Witness Examinations
        1. 225.1 – Overview, Competency and Qualifications
        2. 225.2 – Direct Examination of Witnesses
        3. 225.3 – Special Topics and Issues
        4. 225.4 – Cross-examination
      7. 226.1 Rebuttal Evidence
      8. 227.1 Motion to Dismiss: Insufficient Evidence
      9. 228. Closing Argument to Jury
        1. 228.1 – Procedure
        2. 228.2 – Basic Guidelines, Correcting Errors
        3. 228.3 – Permissible Topics
        4. 228.4 – Impermissible Topics
      10. 229. Custody of Evidence
        1. 229.1 – During and After Trial
        2. 229.2 – Disposition & Disposal of Evidence
    4. Deliberation and Verdict
      1. 240.1 Jury Instructions
      2. 241. Jury Procedures
        1. 241.1 – Jury Procedures During Trial
        2. 241.2 – Juror Misconduct
      3. 242. Jury Verdict
        1. 242.1 – Requirements and Types
        2. 242.2 – Unanimity, Inconsistency & Challenges
      4. 243. Mistrial
        1. 243.1 – Procedure and Effects
        2. 243.2 – Grounds for Mistrial
  4. 300. Sentencing
    1. Basic Law/Rules
      1. 301.1 Felony Sentencing
      2. 302.1 Misdemeanor Sentencing
      3. 303.1 DWI Sentencing
      4. 304. Sentencing Issues
        1. 304.1 – Fines, Costs, and Restitution
        2. 304.2 – Sex Crimes
        3. 304.3 – Multiple Convictions
        4. 304.4 – Jail Credit and Sentence Reductions
        5. 304.5 – Deferrals and Conditional Discharges
        6. 304.6 – Work Release
        7. 304.7 – Purposes of Sentencing
        8. 304.8 – Obtaining Additional Information
      5. 305.1 Probation
      6. 306.1 Felony Sentencing Grids
      7. 307.1 Misdemeanor Sentencing Grids
      8. 308.1 DWI Punishment Charts
      9. 309.1 Drug Trafficking
      10. 310. Sentencing Appendices
        1. 310.1 – Felony Offense Classification Table
        2. 310.2 – Misdemeanor Offense Classification Table
        3. 310.3 – Aggravating Factors
        4. 310.4 – Mitigating Factors
        5. 310.5 – Offenses Covered by CVRA
        6. 310.6 – Crimes Requiring Sex Offender Registration
        7. 310.7 – Place of Confinement
        8. 310.8 – Special Sentencing Rules
    2. Related Topics
      1. 320.1 Conducting the Sentencing Hearing
      2. 321.1 Sentencing Errors and Corrections
      3. 322.1 Prayer for Judgment Continued
      4. 323. Forfeiture of Property
        1. 323.1 – Proceeds and Specific Offenses
        2. 323.2 – Drug Offenses
        3. 323.3 – Sample Motions and Orders
  5. 400. Appeals & Relief
    1. Appeals & Remands
      1. 401.1 Defendant's Right to Appeal
      2. 402.1 State's Right to Appeal
      3. 403.1 Withdrawal, Remand, & Resentence
    2. Other Relief
      1. 410.1 Expunctions
      2. 411.1 Motions for Appropriate Relief
      3. 412.1 Habeas Corpus
      4. 413.1 Innocence Commission
  6. 500. Juvenile Prosecutions
    1. Investigating & Charging
      1. 501.1 Basic Concepts, Recent Changes to Laws
      2. 502.1 Jurisdiction and Venue
      3. 503.1 Authority Over Parent or Guardian
      4. 504. Investigation
        1. 504.1 – Juvenile Custody and Questioning
        2. 504.2 – Juvenile Identification Procedures
      5. 505. Complaints and Petitions
        1. 505.1 – Complaint & Petition Process
        2. 505.2 – Defects and Amendments
      6. 506.1 Discovery in Juvenile Court
    2. Hearings
      1. 510.1 First Appearance
      2. 511.1 Secure Custody Hearing
      3. 512.1 Pretrial Motions & Continuances
      4. 513.1 Probable Cause Hearing
      5. 514.1 Transfer Hearing
      6. 515.1 Admission or Adjudication
    3. Disposition and Appeal
      1. 520. Disposition
        1. 520.1 – Calculating Disposition Level
        2. 520.2 – Disposition Options
        3. 520.3 – Disposition Hearing
        4. 520.4 – Juvenile Probation
        5. 520.5 – Commitment
        6. 520.6 – Juvenile Sex Offender Registration
      2. 521.1 Juvenile Appeals
      3. 522.1 Interstate Compact For Juveniles
      4. 523.1 Juvenile Records
  7. 600. Expert Testimony
    1. General Topics
      1. 601.1 Reliability, Admissibility, and Daubert
      2. 602. Procedure and Overview
        1. 602.1 – Qualifications, Presentation, & Guidelines
        2. 602.2 – Sample Questions: Generic
      3. 603.1 Crawford, Substitute Analyst
    2. Expert Testimony by Subject
      1. Chemical
        1. 610. Forensic Drug Analysis
          1. 610.1 – Law & Issues
          2. 610.2 – Suggested Questions
        2. 611. Gunshot Residue Test
          1. 611.1 – Law and Issues
          2. 611.2 – Suggested Questions
        3. 612. HGN
          1. 612.1 – Law and Issues
          2. 612.2 – Suggested Questions
        4. 613. Retrograde Extrapolation
          1. 613.1 – Law and Issues
          2. 613.2 – Suggested Questions
      2. Medical
        1. 620. Cause of Death/Autopsy
          1. 620.1 – Law and Issues
          2. 620.2 – Suggested Questions
        2. 621. DNA Evidence
          1. 621.1 – Law and Issues
          2. 621.2 – Suggested Questions
        3. 622. Hair Analysis
          1. 622.1 – Law and Issues
          2. 622.2 – Suggested Questions
        4. 623. Blood/Bodily Fluids Identification
          1. 623.1 – Law and Issues
          2. 623.2 – Suggested Questions
        5. 624. Bite Mark Analysis
          1. 624.1 – Law and Issues
          2. 624.2 – Suggested Questions
        6. 625.1 Blood Spatter Analysis
        7. 626.1 Child Sexual Assault Exam
      3. Physical
        1. 640. Fingerprint Identification
          1. 640.1 – Law and Issues
          2. 640.2 – Suggested Questions
        2. 641. Footprints, Shoes & Tire Tracks
          1. 641.1 – Law and Issues
          2. 641.2 – Suggested Questions
        3. 642. Firearms/Tool Mark Identification
          1. 642.1 – Law and Issues
          2. 642.2 – Suggested Questions
        4. 643. Fiber Analysis
          1. 643.1 – Law and Issues
          2. 643.2 – Suggested Questions
        5. 644. Dog Tracking
          1. 644.1 – Law and Issues
          2. 644.2 – Suggested Questions
        6. 645.1 Handwriting Analysis
        7. 646.1 Fire/Arson Investigation
        8. 647.1 Accident Reconstruction
      4. Mental
        1. 660.1 Use of Force, Self-Defense
        2. 661.1 Crime and Criminal Practices
        3. 662.1 Eyewitness Identification
        4. 663.1 Polygraphs, Plethysmography, and Witness Credibility
        5. 664.1 Repressed Memories and Hypnosis
  8. 700. Evidence
    1. Rules
      1. 701. General Provisions [Rules 101 – 106]
        1. 701.1 – Scope of the Rules [Rule 101]
        2. 701.2 – Purpose and Construction [Rule 102]
        3. 701.3 – Rulings on Evidence [Rule 103]
        4. 701.4 – Preliminary Questions [Rule 104]
        5. 701.5 – Limited Admissibility [Rule 105]
        6. 701.6 – Rule of Completeness [Rule 106]
      2. 702.1 Judicial Notice [Rule 201]
      3. 703. Relevance and Prejudice [Rules 401 – 412]
        1. 703.1 – Relevance & Admissibility [Rules 401, 402]
        2. 703.2 – Prejudice, Confusion, Waste of Time [Rule 403]
        3. 703.3 – Character Generally [Rule 404(a)]
        4. 703.4 – Other Crimes, Wrongs, or Acts [Rule 404(b)]
        5. 703.5 – Proving Character [Rule 405]
        6. 703.6 – Habit or Routine Practice [Rule 406]
        7. 703.7 – Plea Offers and Negotiations [Rule 410]
        8. 703.8 – Victim's Past Sexual Behavior [Rule 412]
      4. 704.1 Privileges [Rule 501]
      5. 705. Witnesses and Testimony [Rules 601 – 615]
        1. 705.1 – Competency of Witnesses [Rule 601]
        2. 705.2 – Personal Knowledge [Rule 602]
        3. 705.3 – Impeachment: General [Rule 607]
        4. 705.4 – Impeachment: Character & Conduct [Rule 608]
        5. 705.5 – Impeachment: Prior Conviction [Rule 609]
        6. 705.6 – Impeachment: Religious Beliefs [Rule 610]
        7. 705.7 – Mode and Order of Testimony [Rule 611]
        8. 705.8 – Refreshing Recollection [Rule 612]
        9. 705.9 – Prior Statements [Rule 613]
        10. 705.10 – Questioning by the Court [Rule 614]
        11. 705.11 – Exclusion of Witnesses [Rule 615]
      6. 706. Expert Testimony/Opinions [Rules 701 – 706]
        1. 706.1 – Lay Opinion [Rule 701]
        2. 706.2 – Expert Testimony [Rule 702]
        3. 706.3 – Basis of Opinion [Rule 703]
        4. 706.4 – Ultimate Issue [Rule 704]
        5. 706.5 – Underlying Facts/Data [Rule 705]
        6. 706.6 – Court-Appointed Expert [Rule 706]
      7. 707. Hearsay [Rules 801 – 806]
        1. 707.1 – Hearsay: Definition & Admissibility [Rules 801, 802]
        2. 707.2 – Admission of Party Opponent [Rule 801(d)]
        3. 707.3 – Double Hearsay [Rule 805]
        4. 707.4 – Declarant’s Credibility [Rule 806]
      8. 708. Hearsay Exceptions [Rule 803]
        1. 708.1 – Availability Immaterial [Rule 803]
        2. 708.2 – Present Sense Impression [Rule 803(1)]
        3. 708.3 – Excited Utterance [Rule 803(2)]
        4. 708.4 – Mental/Physical Condition [Rule 803(3)]
        5. 708.5 – Medical Diagnosis/Treatment [Rule 803(4)]
        6. 708.6 – Recorded Recollection [Rule 803(5)]
        7. 708.7 – Business Records [Rule 803(6)]
        8. 708.8 – Absence of Records [Rule 803(7)]
        9. 708.9 – Public Records [Rule 803(8)]
        10. 708.10 – Commercial Publications [Rule 803(17)]
        11. 708.11 – Learned Treatises [Rule 803(18)]
        12. 708.12 – Reputation as to Character [Rule 803(21)]
        13. 708.13 – “Other Exceptions” [Rule 803(9-23)]
      9. 709. Hearsay Exceptions [Rule 804]
        1. 709.1 – Declarant Unavailable [Rule 804(a)]
        2. 709.2 – Former Testimony [Rule 804(b)(1)]
        3. 709.3 – Dying Declaration [Rule 804(b)(2)]
        4. 709.4 – Statement Against Interest [Rule 804(b)(3)]
        5. 709.5 – Personal or Family History [Rule 804(b)(4)]
        6. 709.6 – Residual Exceptions [Rules 803(24), 804(b)(5)]
      10. 710. Authentication [Rules 901 – 903]
        1. 710.1 – Requirements, Methods [Rule 901]
        2. 710.2 – Self-Authentication [Rule 902]
        3. 710.3 – Subscribing Witness Unnecessary [Rule 903]
      11. 711. Contents of Writings [Rules 1001 – 1008]
        1. 711.1 – Definitions [Rule 1001]
        2. 711.2 – Requirement of Original [Rule 1002]
        3. 711.3 – Admissibility of Duplicates [Rule 1003]
        4. 711.4 – Other Evidence of Contents [Rule 1004]
        5. 711.5 – Public Records [Rule 1005]
        6. 711.6 – Summaries [Rule 1006]
        7. 711.7 – Testimony/Admission of Party [Rule 1007]
        8. 711.8 – Function of Court/Jury [Rule 1008]
      12. 712.1 Applicability of Rules [Rule 1101]
    2. Types
      1. 721.1 Real Evidence: Non-fungible
      2. 722.1 Real Evidence: Fungible
      3. 723.1 Demonstrative Evidence
      4. 724.1 Digital Evidence
      5. 725.1 Photos and Videos
      6. 726.1 Audio Recordings
      7. 727.1 Maps and Diagrams
      8. 728.1 Eyewitness Identification
      9. 729.1 Voice Recognition
      10. 730.1 “Opened the Door”
  9. 800. Pattern Jury Instructions
  10. 900. Arrest Warrant and Indictment Forms
  11. Printer Friendly Version
117.1Procedure for Arraignment Print Last Updated: 12/01/23 previous116.Private Prosecutors next117.2Waiver of Arraignment

Key Concepts

  • Defendant has both a constitutional and statutory right to the presence of counsel at arraignment.
  • Arraignment is generally only required upon a defendant’s written request under G.S. 15A-941.

Overview

An arraignment is a proceeding whereby a defendant is brought before a judge having jurisdiction to try the offenses, and the judge advises the defendant of the pending charges and directs the defendant to plead to them. The prosecutor “must read the charges or fairly summarize them to the defendant.” Should the defendant thereafter fail to plead, “the court must record that fact and the defendant must be tried as if he had pleaded not guilty.” G.S. 15A-941.

G.S. 7A-49.6 broadly authorizes the use of audio and video transmission to conduct "all types" of court proceedings as long as the presiding judge and participants can see and hear each other, there is no objection made for good cause, the videoconferencing application used has been approved by the Administrative Office of the Courts, and the procedures "safeguard the constitutional rights of those persons involved in the proceeding and preserve the integrity of the judicial process," including preserving the defendant's right to confer confidentially with counsel and confront witnesses, if applicable. G.S. 7A-49.6 was established by S.L. 2017-47 (S.B. 255), effective June 18, 2021, which also repealed the provisions of G.S. 15A-941 that had previously limited the use of remote audio and video transmission to noncapital cases only.

Right to Counsel

If a defendant appears at arraignment without an attorney, the judge must advise defendant of his or her rights in compliance with G.S. 15A-942 and 15A-1012(a) before the defendant may be called upon to plead, even though the defendant previously may have waived counsel or been denied appointed counsel (for example, at first appearance on a felony in district court). See State v. Bullock, 316 N.C. 180 (1986); State v. Sanders, 294 N.C. 337 (1978)

Additionally, in a case within the original jurisdiction of superior court, which generally includes felonies plus any accompanying misdemeanors described in G.S. 7A-271, a defendant who has waived counsel may not plead within seven days following the date the defendant was arrested or otherwise informed of the charge. See G.S. 15A-1012(b), Official Commentary.

Arraignment in District Court

  1. Timing When the docket (calendar) is called in district court, defendants are often informally asked how they intend to plead to charges against them as an indication of what plea they plan to enter at arraignment. It is debatable whether arraignment actually occurs when district court opens and the misdemeanor docket is called, or later when each defendant is called before a judge to enter a plea to each charge, but the better view is that arraignment occurs when a defendant enters a plea before a judge. See State v. Brunson, 327 N.C. 244 (1990), discussed below.
  2. Jeopardy When does jeopardy attach in district court? In State v. Brunson, 327 N.C. 244 (1990), the court considered whether jeopardy had attached in a district court case simply because the defendant had been arraigned and had pled not guilty. In reversing the court of appeals [and effectively reversing prior cases, such as State v. Coats, 17 N.C. App. 407 (1973) and State v. Lee, 51 N.C. App. 344 (1981)], the court ruled that jeopardy attaches in district court only after the trial judge begins to hear the evidence. See also Serfass v. United States, 420 U.S. 377 (1975) (jeopardy attaches in non-jury trials when the first witness is sworn).

Arraignment in Superior Court

  1. Defendant Must File a Timely Request for Arraignment A defendant is entitled to be arraigned in superior court only if the defendant files a written request for an arraignment with the clerk of superior court not later than 21 days after service of an indictment. If an indictment is not required to be served under G.S. 15A-630, a written request for arraignment must be filed not later than 21 days from the return of the indictment as a true bill. On return of an indictment as a true bill, the court must immediately cause notice of the 21-day time limit to be mailed to the defendant and to the defendant’s counsel of record, if any. G.S. 15A-941(d). If the defendant does not file a written request for arraignment, then the court must enter a not guilty plea on the defendant’s behalf. G.S. 15A-941(d). G.S. 15A-941(e) clarifies that nothing in this statute prevents the district attorney from calendaring cases for administrative purposes.
  2. Calendaring Requirements in Counties with 20 Weeks or More of Criminal Trial Sessions Annually In counties with 20 weeks or more of criminal trial sessions annually, as specified in G.S. 15A-943, arraignments must take place on at least the first day of every other week in which criminal cases are heard, and no cases in which the presence of a jury are required may be calendared for the same day. The purpose of calendaring arraignments is to promote the efficient use of court time and to “minimize the imposition upon jurors and witnesses, not to afford defendant any particular rights or to insure the impartiality of jurors.” State v. Elkerson, 304 N.C. 658, 661 (1981). Thus, failure to follow proper arraignment procedures in the specified counties (for example, arraignment calendared when jury matters scheduled, and prospective jurors allowed to observe co-conspirators’ arraignment), does not in itself entitle defendant to a new trial.
  3. Failure to Follow Calendaring Requirements for Counties Specified in G.S. 15A-943 Failure to calendar an arraignment in such counties, although a violation of G.S. 15A-943(a), does not by itself constitute reversible error when a defendant is nevertheless given at least a week before trial, as required by 15A-943(b). State v. Richardson, 308 N.C. 470 (1983). But when a defendant is tried during the same week as arraignment, without consent, prejudice is presumed and a new trial is required. State v. Shook, 293 N.C. 315 (1977) (trial court erred in proceeding with trial over defendant’s objection on the same day as arraignment on superseding indictment). But remember that a defendant is not entitled to an arraignment unless the defendant makes a timely request. State v. Lane, 163 N.C. App. 495 (2004) (Because the record in this case did not show that the defendant requested an arraignment on his habitual felon charge, there was no error in proceeding to the hearing in the same week as the arraignment on the charge.); State v. Styles, 93 N.C. App. 596 (1989) (defendant may also waive right not to be tried in same week of arraignment; defendant waived right by failing to request continuance).
  4. Failure to Conduct an Arraignment, if One Is Requested. The key inquiry in determining whether a conviction should be reversed for failing to conduct formal arraignment is whether defendant was prejudiced, not whether arraignment procedure was flawed or arraignment was never held. State v. Brown, 315 N.C. 40 (1985). Only if the defendant shows that his or her right to a fair trial was prejudiced or that he or she was unaware of the charges is it reversible error to fail to formally arraign the defendant. State v. Smith, 300 N.C. 71 (1980). See also State v. Silva, 796 S.E.2d. 72 (2017) (trial court did not commit reversible error when it failed to formally arraign the defendant on charges of habitual DWI and driving while license revoked pursuant to G.S. 15A-928(c)). Failure to conduct arraignment for a capital charge does not constitute reversible error per se. State v. Brown, 313 N.C. 40 (1985); State v. Brown, 306 N.C. 151 (1982). A defendant must show prejudice under the standard set out above.
  5. When Jeopardy Attaches in Superior Court. In superior court jury trials, jeopardy attaches when the jurors are sworn and impaneled. Crist v. Bretz, 437 U.S. 28 (1978); State v. Shuler, 293 N.C. 34 (1977).
  6. Effect of Announcing Charge at Arraignment. Prosecutor’s pretrial announcement of intent to seek conviction for only some of the charges in the indictment or for lesser-included offenses does not immediately have the effect of an acquittal of the other or greater charges contained in the indictment. Such an announced election becomes binding on the state only when jeopardy has attached (when the jury has been impaneled and sworn). Until that time, a prosecutor may withdraw a previously announced election and prosecute the defendant for all crimes charged in the indictment. However, proper notice of withdrawal and election must be given to ensure a defendant’s rights to due process and effective assistance of counsel. State v. Hickey, 317 N.C. 457 (1986) (election properly withdrawn by prosecutor when defendant was given actual notice, three months before trial, of prosecutor’s intent to proceed with greater charge); State v. Jones, 317 N.C. 487 (1986) (binding election was made by prosecutor when prosecutor unequivocally arraigned defendant on lesser-included offense and thereafter failed to give any notice, before jeopardy attached, of intent to prosecute greater offense; without proper notice, prosecutor’s election amounted to acquittal of greater offense).
  7. Arraignment is Required for Trial De Novo Cases in Superior Court in Counties Subject to Mandatory Arraignment In counties where G.S. 15A-943 applies, the statutory arraignment provisions also apply to cases appealed from district court for trial de novo in superior court. See State v. Vereen, 177 N.C. App. 233 (2006). In Vereen, the defendant was convicted in district court in Durham County, which is subject to G.S. 15A-943, and appealed for trial de novo in superior court. The defendant objected to being formally arraigned and tried in superior court on the same day, and moved for a continuance so he could obtain evidence that he had subpoenaed, but the judge proceeded immediately to trial. The court ruled that proceeding to trial violated G.S. 15A-943(b), which prohibits a trial without the defendant’s consent in the same week in which the defendant is arraigned, and the defendant’s motion for a continuance to obtain evidence constituted a lack of consent to a trial during the same week. The court noted that the defendant was not required to make a written request for arraignment within 21 days of indictment pursuant to G.S. 15A-941(d), since it was an appeal for trial de novo and there was no indictment in this case, but an arraignment was still required under G.S. 15A-943 to enable the defendant to submit a plea in superior court.
Related Resources Arraignment in Superior Court Pretrial Vol. 1, Ch. 12 Right to Counsel, 12.6 Waiver of Counsel Update on Jury Trial Waivers Submit Brief/Motion

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