The Law and You

Typical Criminal Proceedings in Felony Matters

Subsequent to your arrest, assuming you have made bail, you will be entitled to a Preliminary Hearing within 20 days following your arrest. If you have not made bail, you are entitled to a Preliminary Hearing within 10 days following your arrest.

Preliminary Hearings are held in the Court of Common Pleas. They are not your trial. This hearing is not held to determine guilt or innocence. Rather, it is held only to determine whether or not the police have a reasonable basis to continue the charges against you.

Most Defendants "lose" their Preliminary Hearings. This is because the standard that the police must meet in a Preliminary Hearing is not proof beyond a reasonable doubt as it would be at trial. Rather, it is simply "probably cause". Again, this is simply a reasonable basis to permit the continuation of charges against you at the present time.

If most Defendants "lose" their Preliminary Hearing, what is the point of having one? First of all, at a Preliminary Hearing, the police officer in charge of the investigation will appear and testify. One of the first things we need to do in representing you in any criminal case is find out the evidence against you. Because your right to discover the evidence against you is somewhat limited in the Superior Court -- for example, you are not automatically entitled to witness statements -- it is important to be able to cross-examine the investigating officer at your Preliminary Hearing to determine the evidence against you. Other than the investigating officer, it is likely that no witnesses will testify for the State at the Preliminary Hearing. Rather, the officer is permitted to, by means of hearsay, testify to what those witnesses told him they know about the case.


If you "lose" your Preliminary Hearing, you will not be re-incarcerated.

Rather, you will simply be told that your case has been "bound over" for the consideration of the Grand Jury.

Under Delaware law you have the right to demand an Indictment by a Grand Jury in all felony matters. In other words, you cannot be named as a Defendant in a felony criminal matter in the Superior Court unless a Grand Jury has chosen to indict you. Unfortunately, Grand Juries in this State and elsewhere throughout the United States are often nothing more than "rubber stamps" for the prosecution. Under Delaware law the only witness appearing before the Grand Jury is usually the police officer who investigated you. You do not have a right to appear before the Grand Jury and testify unless the prosecutor permits you to do so. The Grand Jury's standard of proof is the same standard in the Preliminary Hearing -- probable cause to believe that an offense has been committed.

If you are indicted after having been previously arrested, the police will not come out and arrest you again. Rather, you will simply receive notice of an Arraignment date in the Superior Court. On receiving this notice, you should notify your lawyer immediately.

Arraignment is simply the stage of the case where you are called upon to enter a formal plea of guilty or not guilty to the charges. In addition, your lawyer will formally notify the Court that he/she is going to be representing you. Nothing else really happens at Arraignment and often we are able to accomplish the foregoing simply by filing written notification of the Not Guilty Plea and our entry of appearance. If we can do this than you do not have to appear for an actual Arraignment.

Following Arraignment we enter a phase of the case known as "Discovery". During this phase we request that the State provide us with details of the information supporting the charge against you. Unfortunately for the Defendant, the State is not required to provide us with witness statements or even witness identities at this stage of the proceedings. Rather, among the things we are entitled to are any statement you made to the police, an opportunity to view any tangible evidence against you and access to scientific reports on which the State relies.

The next step of any consequence in the proceedings is known as "Case Review". At Case Review, we are required to appear in Court and meet with the prosecutor. This is what I sometimes describe as formalized plea bargaining. At that time the prosecutor will advise us of a plea offer if he is going to make any offer of a plea. Usually the offers made by the prosecutor are not good from your point of view, at least at the first Case Review. You are free to accept or reject any plea offer or to make a counter plea offer. If we and the prosecutor reach an agreement regarding a plea, the plea will be entered that day. Sometimes cases proceed after plea to immediate sentencing. Many times cases are referred to the Pre-Sentence Office for a Pre-Sentence investigation with sentencing to follow at a later date, usually 60 days or so afterwards.

If a plea is not worked out at the first Case Review, the case is usually scheduled for a second Case Review. If a plea is not worked out at the second Case Review, the case is scheduled for trial. The policy of the Superior Court is that if a Defendant does not enter a plea pursuant to a plea agreement by the second Case Review, there can be no further plea bargaining other than a plea to all of the charges against the Defendant. Obviously, this is not a rule that is advantageous to you as a Defendant. On the other hand, we have seen this rule bent and even outright broken on a number of occasions so long as the prosecutor is willing to extend to you a better plea offer at a later date and you are willing to accept it.

All of this talk about plea bargaining should not lead you to believe that this is the only way to resolve a criminal case. If you are not guilty, you should not plead guilty to anything. Alternatively, even if you are guilty, if the prosecutor does not have the evidence necessary to convict you, you should not plead guilty and we will go to trial.

If you enter a guilty plea or in the unfortunate event that you are convicted following a trial, the case will proceed to Sentencing. As noted above, Immediate Sentencing works to your advantage in two ways. First, you are sentenced that day and do not have to return to Court. Secondly, cases that proceed to immediate sentencing are usually the least serious cases and I have never personally seen a Defendant sentenced to jail at an Immediate Sentencing proceeding.

If the case does not proceed to Immediate Sentencing, you will be referred to the Pre-Sentence Office for a Pre-Sentence investigation. The Pre-Sentence Officer is somewhat like a social worker who works for the Court but is assigned to investigate your case including your background and the facts of the offense of which you have been convicted. This is done so the Pre-Sentence Officer can make a recommendation to the sentencing Judge for an appropriate sentence. The Pre-Sentence Officer's report is reduced to writing and we have an opportunity to see it prior to the actual sentencing date. During your contact with the Pre-Sentencing Officer it is important to be honest and generally not to minimize the offense of which you have been convicted or your involvement in it. Most importantly, it is valuable for you to acknowledge your culpability and your desire not to commit further offenses. Generally, lawyers are not involved in the pre-sentence investigation process. However, if you have any questions that arise during your contact with a Pre-Sentence Officer, you should cut that process short and contact your attorney to get the question answered before resuming the process.

Sentencing will take place after completion of the Pre-Sentence Report. The Judge who sentences you will generally be the Judge who heard your case if the matter proceeded to trial. If the matter did not proceed to trial, you may be sentenced by a Judge other than the Judge before whom you entered your plea. The Judge will have an opportunity to read the Pre-Sentence Report prior to your Sentencing. At Sentencing, the prosecutor will have an opportunity to speak, your lawyer will have an opportunity to speak and you will have an opportunity to speak. As far as what you have to say, I think the central message simply needs to be that you acknowledge wrongdoing and that you are prepared to move forward. If you cannot say either of those things convincingly, then I suggest you make no statement. I have never seen a Defendant punished for not making a statement at a Sentencing proceeding. I have seen Defendants punished by receiving a more severe sentence who spoke at a Sentencing Hearing but failed to acknowledge the seriousness of the offense or their own culpability.


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