Defendant's Waiver of Appearance at Initial Arraignment

Monday, March 16, 2020


Rule 10(a) of the Federal Rules of Criminal Procedure requires that an arraignment be conducted in open court. Rule 10(b), Fed. R. Crim. P., provides for a defendant to waive his or her appearance at arraignment under the following circumstances:

(b) Waiving Appearance. A defendant need not be present for the arraignment if:
(1) the defendant has been charged by indictment . . .;
(2) the defendant, in a written waiver signed by both the defendant and defense counsel, has waived appearance and has affirmed that the defendant received a copy of the indictment . . . and that the plea is not guilty; and
(3) the court accepts the waiver.

Due to the exceptional circumstances presented by the Covid-19 pandemic, the U.S. Magistrate Judges for this District will accept a waiver of appearance for arraignments on indictments, as opposed to the current practice of only on superseding indictments. Click here for the waiver form which Defendant and counsel for Defendant should execute if, after discussion between them, Defendant decides to enter a not guilty plea to the indictment and waive his or her appearance in court for the arraignment. [Please note: If Defendant has not yet had an initial appearance in federal court on the charge contained in the indictment, or has been arrested on an arrest warrant on the indictment, this procedure does not apply.] The arraignment in open court will be held at the scheduled time. Assuming the timely filing of the waiver form (as described below), the Magistrate Judges also will permit counsel to appear at the arraignment telephonically. The lawyer cannotappear telephonically if Defendant does not waive his or her own appearance. In order to properly and timely waive appearance, these instructions must be followed:

  1. The waiver form must be COMPLETED and SIGNED by Defendant and counsel for Defendant.
  2. Only the waiver form bearing Defendant’s ORIGINAL signature will be accepted by the Court.
  3. Defendant and counsel for Defendant must sign and date the waiver form and it must be filed on CM/ECF.  NOTE: If Defendant is in USMS custody, the CM/ECF filing must be docketed at least  24 hours in advance of the scheduled arraignment so that the Court can advise the USMS that Defendant’s personal appearance at arraignment has been waived. Defense counsel must notify the Magistrate Judge’s Courtroom Deputy by email prior to 3:00 pm the day before the scheduled arraignment whether counsel is attending via telephone conference so that the CRD may email the call-in instructions to counsel.