Your First Real Opportunity to Challenge the State's Case
Under 11 Del. C. § 5308 and Court of Common Pleas Criminal Rule 5.1, if you have been arrested on a felony charge, you are entitled to a preliminary hearing — within 10 days if you are in custody, or within 20 days if you have been released on bail — to determine whether the arrest is supported by probable cause. The hearing takes place before a Justice of the Peace Court or, in some cases, a Superior Court commissioner. The state must present sufficient evidence that each element of the charged offense has been met — and the defense has the right to cross-examine witnesses. A preliminary hearing is generally the first time a defendant appears in court with an attorney on a felony case, and it is often the first real test of the prosecution's case.
We use preliminary hearings to challenge evidence and preserve defenses early — before the case fully develops. This is one of the most important and underutilized tools in criminal defense, and we treat it as an opportunity rather than a formality.
Probable Cause Challenges
Questioning whether the state has enough evidence to justify holding you for trial — and moving to have charges dismissed if they do not.
Cross-Examination
Testing the strength and consistency of witness statements — locking witnesses into testimony that can be used at trial.
Bail Advocacy
If you have been incarcerated since arrest, this is the best opportunity to request adjusted bail so you can be released while your case is pending — which can take up to a year before resolution.
Strategic Positioning
Shaping the defense narrative from the beginning — before the prosecution has fully assembled its case.
Felony Cases Pending for Months — Getting Out Is Critical
If you have been incarcerated since arrest, a preliminary hearing is the best opportunity to have your bail adjusted so that you can be released while your case is pending. This opportunity is invaluable because felony cases often remain pending for up to a year between arrest and resolution.
Being out of custody during that period makes an enormous practical difference — you can work, support your family, assist in your own defense, and maintain the stability that makes a better outcome more likely.
Preliminary Hearing FAQ
What happens if probable cause is found at the preliminary hearing?
The case proceeds to arraignment and ultimately toward trial. However, the testimony obtained at the preliminary hearing becomes part of the record and can be used to challenge witnesses later — making it a valuable tool even when the case is not dismissed.
Can I waive a preliminary hearing?
Yes, but you generally should not without discussing it with your attorney. Waiving a preliminary hearing gives up an early opportunity to challenge the state's case and lock in witness testimony. In most cases, we recommend holding the hearing.
What if my bail is set too high to pay?
A preliminary hearing gives us the opportunity to argue for reduced bail based on your community ties, employment, and other factors. We present a compelling case for release at every opportunity.
Have more questions? Schedule a free consultation or call 302-735-8401.