Delaware Preliminary Hearings in the Court of Common Pleas

August 31, 2010


People often ask what is the point of a preliminary hearing? Well, a preliminary hearing occurs after an arrest for a felony or a narcotic drug misdemeanor. These hearings typically occur between 3 and 10 days after arrest in the court of common pleas.

There are two main components of the preliminary hearing process, the main purpose is to insure that there is probable cause to charge the defendant with the charges in question. The standard for probable cause is extremely low and even just the word of a potentially unreliable witness may be enough. The time to fully explore a witnesses credibility is at trial, not at these hearings.

There may however be a legal basis to have a charge dismissed. I once had a first degree murder charge dismissed at preliminary hearing because the officer charged that the defendant acted recklessly and it was a legal impossibility. The State may also offer a misdemeanor plea offer to resolve cases if the State feels that would be appropriate. They may not offer a felony plea to resolve the case because the Court of Common Pleas has no jurisdiction over felonies.

The other thing that happens at preliminary hearings is the potential for a bond review. The original bond for the charges is set by a justice of the peace who is a nonlawyer judge. In the Court of Common Pleas a lawyer judge reviews the charges and may choose to lower to lower the bond amount making it possible for a Defendant to make bail.

The important thing to remember about the preliminary hearing is that even if a charge is dismissed at a hearing the State still has the ability to take the charge to the grand jury and attempt to acquire an indictment, so the game may not be over for that charge.