# Del. Com. Pl. Ct. Crim. R. 5: Rule 5. Appearance before the committing magistrate > Delaware · Court rules · In force URL: https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R5 ## Section - **Citation:** Del. Com. Pl. Ct. Crim. R. 5 - **Heading:** Rule 5. Appearance before the committing magistrate - **Jurisdiction:** Delaware - **Kind:** Court rules - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Delaware Court Rules / Court of Common Pleas / Court of Common Pleas Criminal Rules / Del. Com. Pl. Ct. Crim. R. 5 ## Text (a) In general. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without reasonable delay before the nearest available committing magistrate of the county in which the offense is alleged to have been committed or such other committing magistrate as provided by the warrant or by statute, court rule or administrative order. If a person arrested without a warrant is brought before a committing magistrate, a complaint shall be filed forthwith, which shall comply with the requirements of Rule 4(a), with respect to the showing of probable cause. When a person, arrested with or without a warrant or given a summons, appears initially before the committing magistrate, the committing magistrate shall proceed in accordance with the applicable subdivisions of this rule. (b) Offenses triable by the committing magistrate. If the charge against the defendant is triable by the committing magistrate, the committing magistrate may, with the consent of the attorney general, proceed to try or otherwise dispose of the charge in accordance with the rules of procedure of the committing magistrate’s court. (c) Offenses not triable by the committing magistrate. (1) If the committing magistrate does not try or otherwise dispose of the charge against the defendant under subdivision (b) of this rule, the defendant shall not be called upon to plead. The committing magistrate shall inform the defendant of the complaint against the defendant and of any affidavit filed therewith, of the defendant’s right to retain counsel or to request the assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. The committing magistrate shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant defendant’s right to retain counsel or to request the assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. The committing magistrate shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant. The committing magistrate shall also inform the defendant of the right to a preliminary examination. The committing magistrate shall allow the defendant reasonable time and opportunity to consult counsel and shall detain or conditionally release the defendant as provided by statute or in these rules. (2) If the defendant is before the Court of Common Pleas on offenses not triable and there are other charges that arise from a separate incident, which are to be brought against the defendant which are not triable, the Attorney General with the consent of the Court, may cause those offenses to be brought and the Judge of the Court shall proceed as a committing magistrate in accordance with these rules. (d) Scheduling preliminary examination. A defendant is entitled to a preliminary examination, unless waived, when charged with any offense that is within the exclusive jurisdiction of, or that the attorney general chooses to prosecute in, Superior Court. If the defendant waives preliminary examination, the committing magistrate shall forthwith hold the defendant to answer in Superior Court. If the defendant does not waive the preliminary examination, the committing magistrate shall schedule a preliminary examination. When the initial appearance is before a justice of the peace, the preliminary examination shall be held in the Court of Common Pleas if the defendant is an adult ry examination, the committing magistrate shall forthwith hold the defendant to answer in Superior Court. If the defendant does not waive the preliminary examination, the committing magistrate shall schedule a preliminary examination. When the initial appearance is before a justice of the peace, the preliminary examination shall be held in the Court of Common Pleas if the defendant is an adult. Such examination shall be held within a reasonable time, but in any event not later than 10 days following the initial appearance if the defendant is in custody and no later than 20 days if the defendant is not in custody, provided, however, that the preliminary examination shall not be held if the defendant is indicted or if an information against the defendant is filed in Superior Court before the date set for the preliminary examination. With the consent of the defendant and upon a showing of good cause, taking into account the public interest in the prompt disposition of criminal cases, time limits specified in this subdivision may be extended one or more times. In the absence of such consent by the defendant, time limits may be extended only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice. ## Nearby sections - [Del. Com. Pl. Ct. Crim. R. 1 Rule 1. Scope](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R1.md) - [Del. Com. Pl. Ct. Crim. R. 2 Rule 2. Purpose and construction](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R2.md) - [Del. Com. Pl. Ct. Crim. R. 3 Rule 3. Commencement](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R3.md) - [Del. Com. Pl. Ct. Crim. R. 4 Rule 4. Arrest warrant or summons; capias](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R4.md) - [Del. Com. Pl. Ct. Crim. R. 5 Rule 5. Appearance before the committing magistrate](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R5.md) - [Del. Com. Pl. Ct. Crim. R. 5.1 Rule 5.1. Preliminary hearing](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R5_1.md) - [Del. Com. Pl. Ct. Crim. R. 6 Rule 6. Omitted](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R6.md) - [Del. Com. Pl. Ct. Crim. R. 7 Rule 7. The information](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R7.md) - [Del. Com. Pl. Ct. Crim. R. 8 Rule 8. Joinder of offenses and of defendants](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R8.md) - [Del. Com. Pl. Ct. Crim. R. 9 Rule 9. Warrant or summons upon information](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R9.md) - [Del. Com. Pl. Ct. Crim. R. 10 Rule 10. Arraignment](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R10.md) - [Del. Com. Pl. Ct. Crim. R. 11 Rule 11. Pleas](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R11.md) - [Del. Com. Pl. Ct. Crim. R. 12 Rule 12. Pleadings and motions before trial; defenses and objections](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R12.md) - [Del. Com. Pl. Ct. Crim. R. 12.1 Rule 12.1. Omitted](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R12_1.md) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SRULES_DE_DECCPCRIM_R5. Check the current official text before relying on it. Not legal advice.