In Delaware, a defendant who hasn’t been released must be brought before a magistrate without “unreasonable delay” and within 24 hours of arrest. The court may, for good cause, postpone the appearance, but not longer than an additional 48 hours. (Different timing rules may apply if the suspect is incapacitated due to drug or alcohol use.) If the arrest is without a warrant, a complaint showing probable cause must be filed. (11 Del. C. § 1909; Justice of the Peace Criminal Rule 5; Court of Common Pleas Rules of Criminal Procedure, Rule 5; Superior Court Criminal Rules, Rule 5.)
(For more information on first court appearances in general, see Arraignment: Getting to Court.)
Release by Police
An officer may release someone arrested without a warrant if:
- he or she is satisfied that there are no grounds for a complaint and that the case isn’t worth pursuing, or
- the suspected crime is a misdemeanor and the suspect signs an agreement to appear in court at a certain time. (11 Del. C. § 1908.)
Initial Appearances / Arraignments
At the first court appearance, the court will typically, at a minimum, set bail and any conditions of release, and schedule further court proceedings. Depending in part on the court in which the defendant appears, arraignment may or may not occur at the first court appearance. In some circumstances, defendants can skip the initial appearance and enter a plea of not guilty through a written form filed in conjunction with an attorney.
Arraignment typically involves the court:
- informing the defendant of the charges
- informing the defendant of specific rights, such as the rights to counsel and silence, and
- giving the defendant a copy of the charging document.
Depending on the offense and court in which arraignment occurs, the defendant may also be asked to decide which court will preside over his or her case. (For more, see the link below to the Justice of the Peace Courts.)
At arraignment, the defendant typically enters a plea to the charges. (See How should I plead at arraignment?)
(For more information on initial appearance and arraignment procedure, including the differences between the kinds of courts, see the Delaware websites for Justice of the Peace Courts, Courts of Common Pleas, and Superior Courts.)
Consult a Lawyer
If you’ve been arrested, regardless of whether you’ve been to court yet, consult an experienced local criminal defense attorney. Only such a lawyer can fully explain the nuances and complexities of the rules and how they affect your situation. For example, that attorney can explain whether you’re entitled to a preliminary hearing and whether your court appearance may occur by audiovisual feed.