Victims’ Bill of Rights
On July 23, 1992, Governor Michael N. Castle, signed the Victims’ Bill of Rights into law. This law mandates that victims are informed about the criminal process and extends notification and participation rights to them. The statute was amended by the 137th General Assembly and Governor Thomas R. Carper signed and made law, new requirements to the Victims’ Bill of Rights on July 16, 1993.
The felony process is often complicated and confusing. As a victim, you may have many questions about what is required of you and what happens as the case moves through the system. You have the right to have your questions answered so that you understand the process and to be notified of Court dates and early release requests.
At the Delaware Department of Justice, we know that protecting and serving victims of crime is about more than investigation and prosecution – it is also about helping victims and their families along the road to recovery. The Victims’ Compensation Assistance Program (VCAP) can provide financial assistance to help cover the costs of a variety of services that help victims and their families begin to rebuild their lives, including lost wages, medical expenses, payment for mental health counseling, and funeral expenses.
Charging Methods, Steps in a Trial and Sentencing Information
Indictment is the finding of the Grand Jury that a crime probably occurred and charges may proceed against the defendant in Superior Court.
The Grand Jury is a randomly selected group of Delaware citizens who consider evidence to see if there should be an indictment. Usually only the police officer testifies. Neither the defendant nor the attorneys are present. If the Grand Jury fails to indict, it is likely the case will not proceed any further. If the defendant is indicted, you will be notified of future court proceedings. The Grand Jury hearing is closed to the public.
Information: If the defendant waives indictment, he/she can be charged by the prosecutor through the use of a document called an information. It is not uncommon for charges to be filed by information, especially in Kent and Sussex Counties
The purpose of this review is to determine if bail can be reduced so that the defendant can be released from pretrial detention. This hearing can be held anytime and is open to the public. Bail review may be held in Magistrate Court, Municipal Court or the Court of Common Pleas if the defendant has not been indicted or an information filed. If the defendant has been indicted or an information filed, it is held in Superior Court.
The arraignment is held in Superior Court. The purpose is to read the charges to the defendant. At this time, the defendant enters a plea of guilty or not guilty. This hearing can be waived by the defendant. This means that the defendant chooses not to have this hearing and will go to trial without it. This hearing is open to the public.
The case review is an informal meeting of the prosecutor and defense attorney to discuss plea agreement options and determine readiness for trial. If a plea agreement is signed, the defendant is brought into the courtroom for the official taking of the plea by the judge. The case review is not open to the public, however, since a plea may be entered in court by the defendant, you should talk to the prosecutor about whether to attend.
Felony trials are held in Superior Court. The purpose is to determine if the defendant is guilty or not guilty. The trial is usually scheduled 70 days after indictment or filing of an information, if no continuances are granted. However, due to current court backlogs, many cases take over a year to come to trial.
You must testify if called as a witness. Check with the prosecutor before the trial date. Most felony trials are before a jury. However, some are tried with only a judge presiding.
The jury in a criminal trial can: find the defendant guilty, guilty of a lesser charge, or not guilty. A mistrial may be declared if the jury fail to reach a unanimous decision.
During trial, the judge can dismiss the charges or declare a mistrial for various reasons. Usually this has to do with evidence problems or rules of court procedure. The prosecutor will explain to you what happened if a dismissal/mistrial occurred. Superior Court trials are open to the public.
After an incident is reported to the police, patrol officers or detectives from the police department will investigate whether a crime has been committed, then collect evidence and identify suspects.
As a victim you may be required to:
- Make a statement to the police
- Attend a physical line-up of suspects or look at photographs of suspects,
- Respond to other requests during the investigation which may include providing personal items as evidence.
It may be that the case is unfounded. This means that there is not enough evidence to prove in court that a crime has been committed, therefore, the case will not continue.
If the case is going to continue, you will want to ask the investigating police agency to keep you informed of all steps in the process. The criminal process starts when an arrest is made.
The Initial Appearance/Bail Hearing of the defendant is held in either Municipal Court or a Justice of the Peace Court. The purpose is to file charges and to set bail for the defendant.
This hearing will be held within 24 hours of arrest, if it is not a weekend. The defendant has a constitutional right to reasonable bail for most offenses. The defendant will be held in custody until bail is posted. As long as the defendant has the ability to make bail, s/he can be released. The purpose of bail is to insure that the defendant will appear for his/her scheduled court hearings. Note: This hearing is open to the public.
There may also be conditions of release imposed on the defendant at this hearing such as mandatory treatment, curfew or to have no contact with the victim. If the defendant violates the conditions of bail, s/he may be charged with a new crime such as breach of release/non compliance with bail conditions. Note: This hearing is open to the public.
The Attorney General’s Intake is a screening process to see if there is enough evidence to file charges in Superior Court. This meeting includes the police, prosecutor and/or a paralegal. (Case facts and evidence will be considered.) This meeting is not open to the public.
The result of the meeting could be:
- Further investigation is needed.
- Charges stay the same.
- Charges are added, reduced or dropped.
- Case is sent to a lower court.
The purpose of a preliminary hearing is to determine if there is sufficient evidence to continue prosecution. It is held either in Municipal Court or the Court of Common Pleas. If the defendant wishes to waive the hearing, (gives up the right to this hearing), it is not held and the charges go on to Superior Court. If the defendant wishes to have a hearing, usually the only witness who testifies is the investigating police officer. However, if you are subpoenaed to testify, you must appear and should immediately call the Attorney General’s Victim/Witness Program and the investigating officer. Note: This hearing is open to the public.
The Court can decide to:
- Send the charges to Superior Court
- Reduce or dismiss one or more charges.
Delaware’s sentencing structure is often confusing. If you have any questions about the sentencing order or the possibilities for early release, you should contact the prosecutor or the Victim/Witness program.
Remember you have the right to be in contact with the authorities concerning what happens to the offender after conviction.
After conviction through a plea agreement or trial, the Judge may order a Presentence Investigation Report. A full Presentence Investigation Report includes a summary of the offense, the offender’s background and victim loss and impact information. However, there are times when a partial report is ordered which only includes the offender’s criminal history.
If a full Presentence Report is ordered, you may receive a Victim Loss/Impact form from the Presentence Investigator. This is an opportunity for you to make people in the system aware of the impact a crime has had on your life. You may also call the Presentence Investigator to provide additional information.
Felony sentencings are held in Superior Court. A sentence may involve a period of time on probation, on home confinement, in a halfway house, in prison and any other special conditions. Many sentencing hearings are held approximately 60 days after a finding of guilt. Sometimes sentencings are held immediately, i.e., right after a plea is accepted or a conviction at trial. If this occurs, no Presentence Investigation is ordered and you will not be sent a Victim Loss/Impact form. Therefore, it is important to contact the prosecutor soon after indictment or filing of an information to give them your impact and restitution information. If an immediate sentencing is held, the prosecutor can speak on your behalf.
Victims of certain crimes may speak at the sentencing hearing. Ask the prosecutor if this is possible in your case. The sentencing hearing is open to the public.
Upon conviction at trial, the defendant has the right to appeal various aspects of the case. Appeals usually claim a violation of due process. This means that a mistake in the procedure was made during arrest, investigation or the trial. The court which decides the appeal can do several things:
1) overturn the conviction, 2) send the case back for a new trial, 3) send the case back for re-sentencing, or 4) affirm the conviction. Most appeal work is done through written legal briefs without hearings in court. If the defendant has accepted a plea agreement and did not go to trial, he/she has no right to an appeal.
The defendant may also file a motion for sentencing reduction which must be filed within 120 days. This is to request that the sentence be reduced. A hearing is not required. Judges sometimes grant a motion for sentence reduction after the 120 days has expired. You can request to be notified of any sentence modifications.
Also, under the Truth in Sentencing guideline for exceptional rehabilitation, the Department of Correction can petition the court to modify the sentence of an offender. More information about this procedure is available under the Truth In Sentencing section of the booklet.
Unfortunately, victims do not have the right of appeal through the court process if they are dissatisfied with the decision of the prosecutor, jury or judge.
Truth in Sentencing
Truth In Sentencing (TIS) is the sentencing structure that went into effect in 1990. It applies only to those offenders sentenced after 1990. Truth in Sentencing is designed so that more non-violent offenders are placed in alternatives to incarceration, while violent offenders spend a longer time in prison. All prison sentences of a year or more will be followed by at least six (6) months of structured community supervision. TIS changed the law in several ways.
- It abolished a “right” to parole.
- It limited the amounts of good/merit time that an incarcerated offender could earn in a year’s time.
- It reduced the maximum penalties that can be given for most crime categories and it created two new felony classifications.
TIS is structured so offenders will be incarcerated for the length of the sentence. Under Truth in Sentencing, the amount of good/merit time an offender can earn in a year is 90 days. Therefore, if a person receives a two year sentence, they could possibly be released in one year and nine months with earned good/merit time.
Under Truth in Sentencing, the Department of Correction is authorized to seek modification of an offender’s sentencing. Such a request must be based on “good cause,” which can include an offender’s exceptional rehabilitation while in prison, serious illness, prison overcrowding and other factors. The Department of Correction must certify eligibility through an internal process. The recommendation is then forwarded to the Parole Board who will do their own review. The recommendation of the Board is then sent back to the original sentencing judge who may decide to have a hearing or make a decision based on the information provided. The judge makes the final decision on the sentencing modification. This usually is done by documentation and/or reports and is not open to the public.
Sentac Sentencing Levels
In Delaware, the General Assembly created the Sentencing Accountability Commission (SENTAC) to study and recommend a practical solution to the problems of the prison system. SENTAC developed a new system of sentencing standards designed to incarcerate violent offenders while providing alternatives for non-violent offenders.