(THE FOLLOWING INFORMATION APPLIES TO DEFENDANTS
IN CRIMINAL AND TRAFFIC CASES WHICH ARE HEARD BY THE COURT RATHER THAN
PAID BY VOLUNTARY ASSESSMENT)
What do I do if I receive a summons to appear in court?
You must appear at the court on the date which is specified
in the summons or traffic ticket. Be sure to bring your copy of the
summons or traffic ticket with you and, if you wish, you may bring an
attorney to represent you. You should also bring a form of payment if
you wish to plead guilty and pay the fine. You may pay by check, cash,
debit card, or the following credit cards: Visa, Mastercard, or Discover.
What happens after I arrive at the courthouse?
When you arrive at the court, you should go to the window
and tell the clerk that you are there. Give the clerk the same spelling
of your name as is listed on your summons. However, if the name or the
spelling on the summons is incorrect, please advise the clerk. The clerk
will give you a document called DEFENDANT HISTORY for you to
fill out. When you go into the courtroom, you will be appearing for
an "initial appearance".
What is an initial appearance?
An initial appearance is the first appearance before
a justice of the peace for a charge - whether you come to court on a
summons which you previously received or whether you are arrested and
brought before the court.
What happens at the initial appearance?
At the initial appearance, the judge will explain
the charges against you and the possible penalties. Although you
are not required to, you may wish to have an attorney. If your case
is one which can be heard in the Justice of the Peace Court, you may
make certain decisions concerning your case at the initial appearance.
- If your case is one which cannot be heard in the Justice
of the Peace Court:
- The judge will set bail and any conditions
of release. However, the judge will incarcerate without bail
anyone charged with a capital crime (one for which the death penalty
may be imposed).
- The judge may set a date for arraignment in the other court
(Court of Common Pleas or Family Court), or for a preliminary
hearing in the Court of Common Pleas, if your case will ultimately
be held in the Superior Court. If you do not receive a date for
your arraignment or preliminary hearing at your initial appearance,
you will receive notification in the mail of the time and date.
- If your case is one which can be heard in the Justice of the Peace Court, at the time of your
What happens at an arraignment in the Justice of the
At your arraignment, you will be asked to make some decisions
about your case:
- You will be asked to decide whether you wish to have your arraignment
(and trial, if you plead "not guilty") in the Justice
of the Peace Court or transfer your case for arraignment (and trial,
if you plead "not guilty") to the Court of Common Pleas.
- You should be aware that the judge in the Justice of the Peace
Court is not necessarily a lawyer, while the judge in the Court
of Common Pleas will be a lawyer. You may choose to be represented
by a lawyer in either court. In most situations, there is no prosecutor
or public defender in the Justice of the Peace Court, while there
will be a prosecutor and a public defender (if you are eligible)
in the Court of Common Pleas. However, if you are in Justice of
the Peace Court 20 in the City of Wilmington, both a public
defender and prosecutor will be available.
- If you are charged with a violation of a municipal ordinance
or county code, you will not have the right to transfer
your case to the Court of Common Pleas.
- If you choose to transfer your case to the Court of Common
- The judge may set bail and any conditions
for release. In some cases, the Court may set a date for arraignment
at this time. In other cases, you may receive your arraignment
date in the mail.
- If you are coming to the Court in response to a summons or traffic
ticket and know that you want to transfer your case to the Court
of Common Please, you should let the clerk know you are interested
in doing this as soon as you check in (go to the counter).
- If you choose keep your case in the Justice of the Peace Court:
- The judge will ask you to sign a Jurisdictional Form. By signing
this form you agree to have your case handled in the Justice of
the Peace Court rather than the Court of Common Pleas. You should
read this form carefully and ask the judge if you have any questions.
- At the time you sign the jurisdictional form, the judge will
ask you whether you wish to plead "guilty" or "not
guilty." If you are not sure what to do at this time, you
should plead "not guilty.
- If you choose to plead "guilty",
- If you do not have an attorney, the judge will ask you to sign
a Waiver of Attorney form. By signing this form, you agree to
waive your right to have representation by an attorney.
- The judge will ask you to sign a Record of Guilty Plea. The
guilty plea form explains the rights which you will be giving
up by pleading guilty. If you plead guilty, you will not have
a right to a trial or to appeal your conviction. You should read
these forms carefully before signing them and be sure that you
understand them. If you have any questions, you should ask the
judge. After you have signed these forms, the judge will usually sentence you unless you are eligible for probation before judgment.
- If you choose to plead "not guilty", the judge
will set a date for trial in the Justice of the Peace Court and
will set bail and any conditions
- If you are eligible, you may request Probation
Before Judgment. Probation before Judgment (PBJ) permits
a first or infrequent offender, under certain circumstances to avoid
having a conviction entered against him or her if the offender complies
with certain conditions. PBJ works as follows:
offender enters a plea of guilty or nolo contendere.
Court defers further proceedings and the entry of a judgment of conviction
against the offender.
Court places the offender on probation for a period of time with such
terms and conditions as the Court decides are appropriate.
the offender complies with the terms and conditions, at the end of the
period of probation, no conviction will be entered on the record.
Click here to learn about
eligibility requirements and other information concerning Probation
What happens after my arraignment?
- If you have pled "guilty", the judge will sentence you. If a fine is imposed, you will be expected to pay the fine
at that time or make arrangements for deferred payment or work referral. Whether or not a fine
is imposed, you will be expected to pay court costs and other assessments
required by law.
- If you have pled "not guilty", the court clerk
will give you a document called "Bond/Order to Appear".
This document tells you the type and amount of bail, if any, which
you must post, when you must appear in court for your trial or preliminary
hearing, and where your trial or preliminary hearing will be held.
You should save this document so that you can refer to it later.
If there is no trial date on this document, you will receive notice
in the mail of your trial date. You should give the court your correct
mailing address and telephone number (if you have one) and let the
court know if you move so you will receive notices from the court.
You should contact the court if you don't receive your trial notice
within a reasonable period of time (about 3 weeks).
What happens at a preliminary hearing or a trial?
- If you are scheduled for a preliminary
hearing or trial in the Court of Common Pleas, or
a trial in the
Family Court you may click on the appropriate selection
to obtain further information from the Court of Common Pleas' or
Family Court's web site.
- If you are scheduled for a trial in the Justice of the Peace
Court, you may wish to review the information which follows.
How do I prepare for a trial in the Justice of the
- You should consider whether you wish to have an attorney represent
you. If you wish to have an attorney represent you, you should
contact the attorney well before the date of your trial (or arraignment).
In a very limited number of situations, a public defender may be
available to defend eligible persons in the Justice of the Peace
Court. You should check with the Public Defender's Office to see
if there is a possibility of a public defender handling your case.
- You should be sure to know the exact date and time of your
trial and be there on time.
- Although the Justice of the Peace Court is less formal than
the higher courts, the Rules of Evidence must still be followed. If you will be appearing without an attorney, you should try to
familiarize yourself with some of the most important Rules as described
in "Questions and Answers
About the Rules of Evidence."
- You should bring with you to trial all photographs, diagrams,
reports, or other items which have anything to do with your case.
- You should also bring any witnesses who can help with your
defense. (A written statement from a witness who cannot appear
in court cannot be considered by the judge.) Make sure your witness
knows the exact date, time and place of the trial and then make
sure the witness appears for trial. If you are not sure that a witness
will show up at court, you may subpoena the witness (have the court
order the person to appear at the court to testify) by filing a
request for a subpoena with the court. The court can also issue
a subpoena for evidence, such as photographs, reports, or objects
which are in someone else's possession and which you need for your
defense. You should ask the Court for the subpoena as far in advance
of your trial date as possible.
- Remember, that you must appear as ordered for your trial or
you may be charged with contempt of court in addition to the
original charge(s) and a warrant for your arrest (called a capias)
will be issued.
- If there is a valid reason why you cannot be in court on the
day of the trial, write or fax the court, if possible, or call,
if not, to request a continuance (postponement) to another date.
You should make your request for a continuance as early as possible.
A continuance request which is made at the last minute is not likely
to be granted. In your continuance request you should include the
case or ticket number or a copy of your ticket
specific reason for the continuance;
position of the prosecuting agency on the requested continuance, unless
impossible to obtain;
the request is made because of you (or your attorney's) appearance in
another court, a copy of the other court's trial notice (or, if the
notice is not available, the name of the case, the court, the date and
time of appearance and the date the other case was scheduled.)
What happens at trial in the Justice of the Peace Court?
- Arriving for trial. It is important to arrive on time for
your trial. However, you should realize that there may be a number
of cases to be heard before your case so you may have to wait beyond
the scheduled time before your case can be heard.
- Opening statements. The person representing the prosecuting
agency will speak first and may give a brief opening statement,
telling the court what he or she intends to prove through his or
her testimony, evidence and/or witnesses. After the prosecuting
agency finishes its opening statement, the defendant may make a
statement as to what he or she intends to prove, or the defendant
may wait until after the prosecuting agency has presented its evidence
before making any opening statement.
- Testimony for the prosecuting agency. After the opening
statement(s), if any, the prosecuting agency will be asked to call
the first witness to testify. In some cases, the person representing
the prosecuting agency will be a witness in the case. All witnesses
who testify will be sworn-in by the court prior to their giving
testimony. The prosecuting agency must prove its case beyond
a reasonable doubt.
- Cross examination. After the witness finishes his or her
direct testimony and introduces any evidence the witness may have,
the defendant or court may cross-examine the witness. Cross-examination
means asking the witness questions regarding anything about which
the witness testified. The defendant should not start telling his
or her side of the story at this time. (The defendant will be given
an opportunity to explain the defendant's defense after all the
witnesses for the plaintiff have testified.)
- Testimony for the defendant. When the prosecuting agency
has presented all of its witnesses and evidence, the defendant may
present his or her defense, calling any witnesses and presenting
any evidence the defendant may have. The defendant may, but is not
required (because the defendant has the right to remain silent)
to testify. The prosecuting agency or judge may cross-examine the
defendant's witnesses, including the defendant, if the defendant
- Rebuttal. After the defense has been presented, the prosecuting
agency may call any rebuttal witnesses. Rebuttal witnesses are witnesses
for the prosecuting agency who seek to rebut the testimony of the
- Closing Statements. When both sides have presented all
of their evidence and testimony, the prosecuting agency may summarize
his or her side of the case by telling the court what he or she
thinks has been proved. The defendant is then given the opportunity
to summarize his or her side of the case.
- Judgment. Usually, the judge will render the verdict upon
the close of the trial. However, at times, the judge may require
more time to consider the verdict and will reserve judgment to a
later date. When the judge does this, you will be notified as to
when to return to court for the verdict.
What can my sentence include?
Depending upon the offense and other factors, your sentence
will include one or more of the following:
· Jail time
· Partial Confinement in a halfway house or other facility,
or supervised house arrest
· Community service
In addition, a sentence always includes court costs.
Jail time, fines and court costs (but not restitution,
Victim's Compensation, or Videophone assessments) may be suspended and the defendant placed on probation, if the judge finds that this
How does the judge decide what my sentence should be?
Statutes set minimum or maximum limits for fines and/or
jail time or community service for each offense. In some cases, the
court may choose to impose probation in addition to, or instead of,
a fine or jail time. In addition, if the offense caused injury to another
person or damage to their property, the defendant may be required to
pay restitution to the victim to pay for treatment for the victim's
injury or repair or replacement of their property.
In determining the sentence, the judge will take into
account the type of offense, as well as the defendant's prior criminal
history, the need for community protection, and the possibility of rehabilitation
of the defendant.
Payment of fines and court costs
Payment of fines and court costs is to be made at the
time of sentencing, unless you make other arrangements with the Court.
You may use a check, cash, debit card or the following credit cards:
VISA, MasterCard, or Discover to pay your fine and court costs.
What if I am unable to pay a fine?
If you do not believe that you will be able to pay a fine
for which you are sentenced, you should tell the judge. The judge may
ask you to sign a deferred payment plan under which you agree to pay
your fine over time. Or, the judge may order you to report to the Department
of Corrections for work referral instead
of paying your fine. (Assessments for the Victim's Compensation Fund
and Restitution cannot be paid off through work referral.)
If you have signed a deferred payment plan and are not
able to make a deferred payment, you should contact the Court before
your next payment is due so that your deferral schedule can be revised
or you can be assigned to work referral.
Failure to pay a fine as ordered may result in your being
found in contempt (for which a fine and/or jail sentence may be imposed)
or it may be treated as a violation
Can I appeal, if I am found guilty?
Generally, a defendant who is found guilty in the Justice
of the Peace Court can appeal if he or she receives a fine of more than
$100 or a jail sentence of more than one month (including a sentence
of more than one month which is suspended for probation). However,
- Traffic cases may be appealed if there is a fine of more than
$100 or a sentence of any jail time.
- Persons convicted of a violation of a code, ordinance, or regulation
of a town, city or county may appeal a conviction by a justice of
the peace without regard to the amount of the fine.
Appeals, other than those involving violations of local
or county ordinances or codes, must be filed with the Court of Common
Pleas within 15 days of the date of sentencing in the Justice of the
Peace Court. Appeals involving violations of local or county ordinances
or codes must be made within 5 days (excluding weekends and State holidays)
from the date of conviction. A new trial will be held on appeal.
TERMS DEFENDANTS SHOULD KNOW
(Additional legal terms are defined in the Glossary found in the
Resources section of this web site)
Bail is the security posted by the defendant or a surety
to ensure the defendant's appearance at a later time. A defendant must
sign a Bond/Order to appear. Once the defendant timely appears for all
court proceedings and the defendant's trial has concluded, any money
or property posted as bail is returned to the individual who posted
it. If the defendant fails to appear as ordered, the money or property
posted may be forfeited and, if the amount specified on the Bond/Order
to Appear was greater than the security posted, the defendant or surety
may be required to pay the remainder of the specified amount.
The following are the different types of bail:
· O/R (Own Recognizance). This means
the defendant is released without paying any money, but must sign
the Bond/Order to Appear promising to appear for any future court
hearings or trials.
· Unsecured Bail. The defendant must
sign a Bond/Order to Appear promising to appear for future court
appearances but is not required to pay any money as surety before
release. However, the Bond/Order to Appear specifies an amount of
money the defendant will have to pay if the defendant does not appear
· Secured Bail. The defendant must sign
a Bond/Order to Appear promising to appear for future court appearances.
As with unsecured bail, the defendant must pay the Court this amount
if the defendant fails to appear as ordered. However, if secured
bail is ordered, the defendant (or someone on the defendant's behalf)
must post a specified amount of money or property with the court
as security for the defendant's appearance before the defendant
will be released. The person posting the security promises to pay
the full amount specified on the Bond/Order to Appear if the defendant
does not appear as ordered. Frequently, a bail bondsman is used
to post the security. If the defendant appears as ordered, the amount
of the security is returned to the person who posted it. If property
is posted as security, the judge most likely will require a title
· Cash Bail. The defendant must sign
a Bond/Order to Appear promising to appear for future court appearances
and the defendant, or someone on the defendant's behalf, must post
the full amount listed on the Bond/Order to Appear before the defendant
can be released. If the defendant fails to appear, the cash bond
may be forfeited. If the defendant does appear as required, the
amount posted will be returned.
If you are sentenced to community service, you will be
required to work for a nonprofit or other tax-supported entity without
pay for a specified period of time. You will also be placed on probation
and if you fail to complete your required community service, you may
be charged with a violation of probation.
CONDITIONS OF RELEASE
When a defendant is released from custody prior to trial,
the Court may, in addition to any bail set, order that the defendant
comply with certain conditions. These may include, but are not limited
to such things as ordering the person to have no contact with a specified
person or persons (no contact order) , requiring a psychiatric examination,
placing restrictions on travel or consumption of alcohol or drugs. Failure
to comply with these conditions can result in the forfeiture of any
bail set as well as the defendant being convicted of a separate crime
for which a fine and/or jail time may be imposed.
Probation is the sentencing of an offender by the court
subject to the conditions imposed by the court, including the supervision
and guidance of the Department of Corrections. If a defendant is placed
on probation, the Court may suspend all or part of a jail sentence or
fine. The Court may also order the defendant on probation to comply
with special conditions such as completing a course of counseling or
Depending on the level of probation imposed, probation
may be either supervised or unsupervised, if the probation is supervised,
the defendant must meet regularly with a probation officer and pay the
required monthly fee.
Restitution is an amount of money which must be paid
to the victim to cover costs for treatment of an injury, or to repair
or replace property damaged by the defendant. Amounts owed for restitution
cannot be suspended nor can they be worked off through work referral.
Such amounts can be transferred to become a civil judgment against the
defendant upon which the victim(s) can execute (sell the defendant's
personal property, garnish wages, or create a lien on the defendant's
SUSPENDED SENTENCE (OR SUSPENDED JAIL TIME OR FINE)
If your jail time or fine is suspended, you may be placed
on probation. If you comply with the conditions of probation, you will
not have to serve the suspended jail sentence or pay the amount of the
fine which has been suspended. If you fail to comply with the terms
of probation, you may be found to have violated your probation and the
jail time originally ordered may be re-imposed.
VIOLATION OF PROBATION
A person violates probation if he or she fails to comply
with the terms and conditions of probation. If this occurs, the Court
will hold a violation of probation hearing. If the Court determines
that the defendant has violated probation, it may re-impose the suspended
jail sentence or may sentence the defendant to include anything the
Court could have ordered at the original sentencing.
Work referral is a way for a defendant who is financially
unable to pay a fine to work off the amount of the fine. A person assigned
to work referral must work for the State at an hourly rate until the
amount of fines and costs are worked off. Work referral may not be used
to pay off restitution or Victim's Compensation Fund payments.