What are my rights if I am stopped by a law enforcement officer?
When you are stopped:
- You have the right to remain silent. Anything you say can and will be used against you in court. In order to invoke this right, you must tell the officer that you do not want to speak to him or her.
- You have the right to an attorney before and during any questioning. If you cannot afford an attorney, one will be appointed to assist you. In order to invoke this right, you must tell the officer that you want an attorney.
- You have the right to refuse to be searched or have your property searched. There are, however, situations where law enforcement can search you or your property without consent. Thus, while you should make clear that you do not consent to the search, you must not resist the search.
- You do NOT have the right to resist arrest even if you believe the arrest is “illegal.” You must obey the officer’s commands. If you fail to follow the officer’s commands, you may be arrested on additional charges.
Who are the Assistant Public Defenders and Conflict Counsel?
They are experienced trial lawyers and members of the Delaware Bar sworn to protect the rights of the clients that they represent. We have lawyers who have been recognized in Delaware as being at the top in the field of criminal law. Several of our attorneys have been recipients of the Killen Award that is presented by the Delaware Association of Criminal Defense Lawyers to individuals seeking fairness and justice for persons accused of crime. Additionally, our attorneys complete and/or present ongoing legal education programs in the state each year.
Our office has been recognized nationally as a top Public Defender agency and was awarded both the 2006 Dorsey Award from the American Bar Association's Government and Public Sector Lawyers' Division and the 2006 Reginald Heber Smith Award from the National Legal Aid & Defender Association.
How to Apply for Representation by the Office of Defense Services?Please click here for information on How to Apply for an attorney
What is a conflict of interest?
A “conflict of interest” occurs when an attorney (or group of attorneys) cannot represent a client due to their duty of loyalty to another client. For example, two defendants are charged with a crime. Defendant 1 is already represented by the Public Defender’s Office when Defendant 2 requests representation. The Public Defender’s Office cannot represent both Defendant 1 and Defendant 2 as their defenses may be adverse to one another.
If you are eligible for Office of Defense Services representation but a conflict of interest is found, you will be appointed an attorney from the Office of Conflicts Counsel to represent you. This attorney is commonly referred to as “Conflict Counsel.”
What type of cases does the Office of Defense Services handle?
By statute, the Office of Defense Services is only appointed in criminal matters. Our office only represents clients (both adults and juveniles) in criminal cases in which you can be sent to prison. Our office does not represent individuals on minor traffic offenses. We represent clients statewide in the Supreme Court, Superior Court, Family Court and the Court of Common Pleas. We also represent clients at Alderman’s Court 40 in Newark. We do not represent clients in the Justice of the Peace Court system except for juveniles charged with criminal contempt of a truancy court order (which are handled by the Family Court Unit in the county in which the offense occurred) or adults charged with a DUI offense out of Justice of the Peace Court 11 (which are handled by the New Castle County Court of Common Pleas Unit). In order to request Public Defender representation on all other eligible Justice of the Peace Court offenses, you must transfer your Justice of the Peace Court case to one of the courts in which we provide representation such as the Court of Common Pleas or Family Court. Office of Defense Services attorneys are not appointed for any civil cases such as divorce, child support or child custody. Please click here for links to other agencies which may be able to handle these civil matters.
At what stages in the criminal case process does the Office of Defense Services represent me?
Once you are found eligible, the Office of Defense Services will represent you as soon as you are charged with a crime for which you could be sent to prison and stay with your case from arraignment through every stage of the process, including the direct appeal. You should interview with our office for representation as soon as you are charged.
Who will I talk to at the Office of Defense Services?
The first person you are likely to see is an investigator who will determine your eligibility and then listen to your side of the story. The investigator will interview you to gather facts about your case to give to your attorney. It is important that you be honest and up front with the investigator and provide names and addresses of any witnesses who would be willing to testify for you at trial.
You will also talk to the attorney who is assigned to your case as well as other attorneys who are stationed at the various courts each day. Your attorney may decide to have you meet with a psycho-forensic evaluator, a trained professional who will determine the need for any additional information about your past history such as family life, education, skills, or drug or alcohol abuse.
Anything you say to an employee of the Office of Defense Services must and will be kept confidential. Your conversations with the attorneys and staff of the Office of Defense Services are protected by the attorney-client privilege. The Office of Defense Services cannot disclose your confidential communications unless you agree to allow the disclosure.
In addition to attorneys, psycho-forensic evaluators, and investigators, the Office of Defense Services employs paralegals, secretaries, and technical staff who may be involved in your defense as appropriate.
How can I help my attorney?
- You should never discuss your case with anyone other than your lawyer or a representative of the Office of Defense Services. Most importantly, keep in mind that: ALL CALLS AT THE PRISON ARE RECORDED AND MAY BE USED AGAINST YOU AT TRIAL.
- Provide the court and your attorney with an accurate address and phone number. Immediately notify the court and your attorney if this information changes.
- Contact your attorney as soon as you receive a letter from the Office of Defense Services advising you to do so.
- Do not file motions with the court on your own behalf or send letters to anyone about your case as they may be used against you at trial.
- Provide your attorney with a list of potential witnesses as soon as possible.
- Be on time for court.
- Dress appropriately for court.
What if I do not speak English, need an interpreter, or I am hearing impaired?
The Office of Defense Services will arrange for necessary interpretive services to help you communicate with your attorney and to understand your court proceedings. Please click here for information on our Spanish services.
What is a preliminary hearing?
A preliminary hearing is permitted in cases where an individual is charged with a felony. It is simply an opportunity for the court to review whether there is probable cause to establish that a crime was committed and that the individual charged committed the crime. The court also has an opportunity to review bail to determine whether it should be increased or decreased. Charges are rarely dismissed as the result of a preliminary hearing. Even if they are dismissed, the State may then bring back the charges through an indictment. In some cases, the State may offer a plea bargain at the preliminary hearing stage. Our attorneys will discuss the plea offer with you and advise you as to whether or not the early resolution of your case is a good deal.
What is an arraignment?
An arraignment is a court procedure where you will be informed of the charges against you and you will be asked to enter a plea of guilty or not guilty to the charges. An attorney will represent you at arraignment and will explain your constitutional rights and the process to you. If you plead not guilty, a case review date or trial date will be set depending on the type of case. In general, you should plead not guilty at the arraignment and interview with the Public Defender’s Office, if you have not already done so, to allow our office time to investigate your case.
What is a case review?
A case review is a court proceeding where the prosecutor and your attorney meet to discuss the evidence, the witnesses, and the legal issues regarding the case. This proceeding may be an opportunity to enter a plea. Our attorneys will review the evidence and the plea offer, discuss your options and advise you as regarding the pros and cons of accepting the offer. If you do not enter a plea at that time, the case will be set for another case review or for trial. Not all cases proceed to case review. Generally, felony charges and DUI charges are scheduled for case review first while misdemeanor charges are scheduled directly for trial. In addition, specialty courts such as Drug Court and Mental Health Court schedule cases for case review.
I missed my court hearing, what do I do?
Contact your attorney immediately and follow his/her instructions. Typically, you will be advised to turn yourself into the Sheriff’s Office in the county wherein you were scheduled for court.
What do I do if there is a warrant for my arrest?
You should immediately turn yourself in to the Sheriff’s Office in the county from where the warrant was issued. The court can then return the warrant, set future dates and release you on “unsecured bail” or set either secured or cash bail. If secured or cash bail is set, you will remain in custody until a bond is posted. If released, you should contact our office to schedule an interview for representation. If incarcerated, an investigator will interview you at the prison.
Do I have a right to an appeal?
Individuals who have been sentenced to at least 30 days in prison or ordered to pay at least $100 as the result of a criminal conviction have the right to an appeal.
How much time do I have to file a notice of appeal?
The time to file a notice of appeal varies by court. In general, you have 30 days from the day of sentence to file an appeal on a criminal matter that was heard in the Superior Court or the Family Court and 15 days from the day of sentence to file an appeal on a criminal matter that was heard in the Court of Common Pleas. For specific information on your appeal rights and the timing of the notice of appeal, you should contact your trial attorney or review the courts’ Criminal Rules.
Who files the notice of appeal?
The attorney who represented you at trial is obligated to file a notice of appeal, on your behalf, if you request it, to preserve your appeal rights. This right of appeal applies to direct appeals filed after conviction. It does not apply to appeals filed after all direct appeals have been exhausted or habeas corpus (“Rule 61”) matters.