Rule 5. Initial appearance before the committing magistrate

(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 unreasonable 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. 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.

(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 or in the Family Court if the

defendant is a juvenile. When the initial appearance is in the Municipal Court for the City of Wilmington,

the preliminary examination shall be held in the Municipal Court if the defendant is an adult or in the

Family Court if the defendant is a juvenile

the peace, the preliminary examination

shall be held in the Court of Common Pleas if the defendant is an adult or in the Family Court if the

defendant is a juvenile. When the initial appearance is in the Municipal Court for the City of Wilmington,

the preliminary examination shall be held in the Municipal Court if the defendant is an adult or in the

Family Court if the defendant is a juvenile. 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.

History.

Adopted, effective Feb. 12, 1953; amended, effective June 1, 1969; May 1, 1974; May 31, 1978; Sept. 15,

1979; revised, effective Jan. 1, 1992.