Arrest warrant or summons; capias

(a) Issuance. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. A summons instead of a warrant may issue in the discretion of the Court. More than one warrant or summons may issue on the same complaint. If a defendant fails to appear in response to the summons, a warrant shall issue. In any case which it is lawful for an officer to arrest a person without a warrant, the officer may, without a complaint having been filed, issue a summons in the form prescribed by statute instead of arresting the person. (b) Probable cause. The finding of probable cause may be based upon hearsay evidence in whole or in part. (c) Form. (1) Warrant. The warrant shall be signed by a Judge or Commissioner and shall contain the name of the defendant or, if the defendant’s name is unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought 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 statute, court rule or administrative order. A copy of the complaint shall be attached to the warrant. (2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the Court at a stated time and place. When a complaint has been filed, a copy thereof shall be attached to the summons. (d) Execution or service; and return. (1) By whom. The warrant shall be executed by any officer authorized by law. The summons may be served by any person authorized to serve a summons in a civil action. (2) Territorial limits. The warrant may be executed or the summons may be served at any place within the jurisdiction of the State of Delaware. (3) Manner. The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant at the time of the arrest but upon request shall show the warrant to the defendant as soon as practicable. If the officer does not have the warrant at the time of the arrest, the officer shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The summons shall be served upon a defendant by delivering a copy to the defendant personally, by leaving it at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing a copy of the summons to the defendant’s last known address. (4) Return. The officer executing a warrant shall make return thereof to the Court pursuant to Rule 5. At the request of the Attorney General any unexecuted warrant shall be returned to and cancelled by the Court. On or before the return day the person to whom a summons was delivered for service shall make return thereof to the Court. At the request of the attorney general, made at any time while the complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved, a duplicate thereof may be delivered by the Court to the authorized person for execution or service. (e) Defective complaint, warrant or summons. (1) Amendment. No person arrested under a warrant or appearing in response to a summons shall be discharged from custody or dismissed because of any formal defect in the complaint, warrant or summons, but the complaint, warrant or summons may be amended so as to remedy any such formal defect. (2) Issuance of new warrant or summons. If prior to or during the preliminary examination it appears that the complaint, warrant or summons does not properly name or describe the defendant, or the offense with which the defendant is charged, or that although not guilty of the offense specified in such complaint, warrant or summons there is reasonable ground to believe that the defendant is guilty of some other offense, the committing magistrate shall not discharge or dismiss such defendant but shall forthwith cause a new complaint to be filed and shall thereupon issue a new warrant or summons. (f) Capias. A capias issued by the Court of Common Pleas shall be executed in the same manner as an arrest warrant. A person arrested on a capias shall be brought before the Court of Common Pleas when such court is in session, otherwise, such person shall be taken before the nearest available magistrate. The committing magistrate before whom the defendant is brought shall hold the defendant to answer in the Court of Common Pleas. Bail shall be fixed as endorsed on the capias or, in the absence thereof, as the committing magistrate deems appropriate in the circumstances. Rule 5. 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 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. 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. 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.