For now, there is no such thing as a formal “arraignment” in South Carolina, although that was addressed in the Chief Justice’s docket control order (which is currently in limbo).  For some time now, though, Horry County has been doing what they call arraignments – when a defendant refuses to plead guilty the prosecutor will schedule a hearing where the prosecutor makes the plea offer to them on the record, the judge questions the defendant about whether they understand the plea offer and the potential penalties they face, and the defendant will accept or deny the plea offer on the record.

I don’t think this is a bad idea, in theory.  In practice, however, it often turns into a debacle where the prosecutor, judge, and defense lawyer all lean on the defendant in an attempt to force a guilty plea.  The prosecutor without fail states that this case will be on the very next trial roster.  In a week’s time, various assistant solicitors may state on the record 50 times to 50 different defendants that their case will be on the very next trial roster.  The judge and the defense lawyers play along, knowing full well that the defendant’s case will not be on the very next trial roster – each term the solicitor is required to release no more than 20 names in the order that they will be called, and no more than a few of these will be the people who were arraigned the week before.

I have had cases where we played along, had an “arraignment,” then 6 months later when we still have not pled guilty, had another “arraignment,” then 6 months later . . . etc.  The worst of these that I have watched while sitting in the courtroom waiting our turn are the ones where the judge castigates the defendant, telling them that this is an amazing plea offer and they are going to get hammered after trial, and the defense lawyer gangs up on the defendant with the prosecutor and the judge.  “Your honor, I’ve explained all of this to him, I’ve told him why he needs to accept the plea offer . . .”

This week I watched several of these where the defendant’s public defenders stood by and allowed their client to explain to the court, on the record, why they did not think they were guilty.  Allowed the judge to question their client on the record about why they were not guilty and why they were not taking the plea offer.  I don’t know if this happened because the lawyer hoped their client would buckle under the pressure and be persuaded by the Court, or if they were afraid or did not understand that they do not have to allow their client to be questioned on their guilt or innocence.

If your client is about to have an “arraignment,” talk to your client beforehand.  Make sure they understand the plea offer, they understand the charges they are facing and the potential penalty, make sure they understand what your advice is and the reasoning for it.  If they want a trial, honor their decision.  Don’t subject them to interrogation on the record, by the Court or by a prosecutor – if you go to trial, and your client made admissions on the record at their arraignment, you are going to hear it again at the trial.

The only legitimate purpose of the arraignment is to have your client accept or reject the plea offer on the record.  The judge and/or the prosecutor are questioning your client on the record not because they have a right to, but because you are letting them do it.    It’s not only ok, but it is your job to say to the Court, “I am advising my client to remain silent.  He/she rejects the plea offer and wants a trial.”  If your client has told you they want a trial by a jury of their peers, be proud and help them to stand up in court and demand a trial by jury.

It occurs to me that I have done many arraignments since the practice began in Horry County, and only once have I had a judge or prosecutor attempt to question my client on the record.  If this is happening to your clients it is because you are letting it happen, and it’s because they know that they can get away with it when you are the attorney.

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