The Delaware State Courts will be closed on Thursday, November 28 and Friday, November 29, 2024 for Thanksgiving. Justice of the Peace Court 11 (New Castle County) and Court 7 (Kent County) will remain open 24 hours and Justice of the Peace Court 3 (Sussex County) will be open from 6AM – 12AM (no new cases after 11:00PM).

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Information for Defendants in the Justice of the Peace Courts


The following information applies to defendants in criminal and traffic cases which are heard by the court rather than paid by voluntary assessment.

Información para acusados en los Juzgados de Paz

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 initial appearance:

What happens at an arraignment in the Justice of the Peace Court?

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.

If you choose to transfer your case to the Court of Common Pleas:

  • 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 of release.

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:

  • The offender enters a plea of guilty or nolo contendere.
  • The Court defers further proceedings and the entry of a judgment of conviction against the offender.
  • The Court places the offender on probation for a period of time with such terms and conditions as the Court decides are appropriate.
  • If the offender complies with the terms and conditions, at the end of the period of probation, no conviction will be entered on the record.

Learn about eligibility requirements and other information concerning Probation Before Judgment.

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 Peace Court?

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, you may request a continuance (postponement) of your case 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 may not be granted.

To request a continuance in your criminal or traffic case, use either the fillable ELECTRONIC CONTINUANCE REQUEST FORM FOR CRIMINAL CASES or you may download a digital copy of CRIMINAL FORM 35 to fill out and email or fax to the court of jurisdiction. When using the electronic form please ensure that you are entering all of your information correctly and you are selecting the appropriate court of jurisdiction. Please note, if you are submitting any additional documentation (i.e. doctor’s notes, work notes, etc.) you will be unable to attach them to the electronic continuance form. They will have to be sent separately to the court of jurisdiction with your case number clearly marked on the top right hand corner of each submitted page.

For more information, see policy directive PD050 CONTINUANCE POLICY.

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 testifies.

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 defendant's witnesses.

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:

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 is appropriate.

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 of probation.

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.

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 as ordered.
  • 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 search.
  • 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.

Community Service

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

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 treatment.

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

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 real property).

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

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.