TITLE 11

Crimes and Criminal Procedure

Criminal Procedure Generally

CHAPTER 35. WITNESSES AND EVIDENCE

Subchapter I. General Provisions


Every person who is accused of any crime whatsoever, punishable by the laws of this State, may upon trial before any tribunal established by the Constitution or laws of this State, testify in the person's own behalf, and may testify for or against any other person jointly tried with the person. A refusal or failure to testify shall not be construed or commented upon as an indication of guilt.

19 Del. Laws, c. 777; Code 1915, § 4215; Code 1935, § 4690; 11 Del. C. 1953, § 3501; 70 Del. Laws, c. 186, § 1.;

(a) A party to an offense under Chapter 15 of this title may be required to furnish evidence, or to testify concerning the offense.

(b) No evidence or testimony required to be furnished under this section, nor any information directly or indirectly derived from such evidence or testimony, may be used against the witness in any criminal case, except in a prosecution for perjury or contempt.

(c) If a witness or other person is or may be called to produce evidence at a hearing or trial under Chapter 15 of this title, or at an investigation brought by the Attorney General under § 1509 of this title, the Superior Court for the county in which the hearing, trial or investigation is or may be held shall, upon certification in writing of such request by the Attorney General, require such person to produce the evidence, notwithstanding the person's refusal to do so on the basis of the privilege against self-incrimination.

65 Del. Laws, c. 493, § 3; 70 Del. Laws, c. 186, § 1.;

In criminal proceedings it shall be prima facie evidence of the incorporation of a bank that it has been reputed to be an incorporated bank or has issued notes as a bank.

Code 1852, § 2350; Code 1915, § 4227; Code 1935, § 4702; 11 Del. C. 1953, § 3503.;

In the prosecution of any offense committed upon, in relation to or in any way affecting any real estate, or personal property, chose in action or thing, it is sufficient if it is proved in the trial that, at the time when the offense was committed, either the actual or constructive possession, or the general or special property, in the whole, or any part thereof, was in the person or community, alleged in the indictment or information to be the owner thereof.

Code 1852, § 2967; Code 1915, § 4834; Code 1935, § 5325; 11 Del. C. 1953, § 3505.;

Repealed by 69 Del. Laws, c. 325, § 1, effective July 8, 1994.;

(a) In any criminal action or in any investigation carried on by the grand jury, if a person refuses to answer any question or to produce evidence of any kind solely on the ground that the person may thereby be incriminated, the Superior Court, upon motion of the Attorney General, may order such person to answer the question or produce the evidence after notice to the witness and a hearing; provided, however, the Court shall not enter such order if the Court finds:

(1) That such person may be subjected to criminal prosecution relating to the same transaction or occurrence under the laws of the United States or any other state and that any such evidence so compelled could be used against the person in any such prosecution; or

(2) Such order would otherwise be clearly contrary to the public interest.

Such person, so ordered by the Court, shall comply with the Court order. After complying, such person shall not be prosecuted or subjected to penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order, the person gave answer or produced evidence; provided that, but for this section, such person would have been privileged to withhold the answer given or the evidence produced. In no event, however, shall such person, acting pursuant to such order, be exempt from prosecution or penalty or forfeiture for any perjury, false statement or contempt committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order, and any testimony or evidence so given or produced shall not by virtue of this section be rendered inadmissible in evidence upon any criminal action, investigation or proceeding concerning such perjury, false statement or contempt.

(b) No statement or other evidence obtained from any person who shall have been compelled to make such statement or produce such evidence by any court of competent jurisdiction of the United States or of any other state pursuant to a claim of privilege and court order under a statute substantially equivalent to subsection (a) of this section shall be admissible in evidence in any criminal prosecution in this State against such person arising out of the same transaction or occurrence.

11 Del. C. 1953, § 3508; 56 Del. Laws, c. 151; 70 Del. Laws, c. 186, § 1.;

(a) In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value.

(b) The rule in subsection (a) of this section shall apply regardless of whether the witness' in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party.

(c) This section shall not be construed to affect the rules concerning the admission of statements of defendants or of those who are codefendants in the same trial. This section shall also not apply to the statements of those whom to cross-examine would be to subject to possible self-incrimination.

11 Del. C. 1953, § 3509; 57 Del. Laws, c. 525.;

(a) In any prosecution for the crime of any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact; an attempt to commit any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, if such attempt conforms to § 531 of this title; solicitation for the crime of any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, if such offense conforms to § 502 of this title; or conspiracy to commit any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, if such offense conforms to § 512 of this title, if evidence of the sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness the following procedure shall be followed:

(1) The defendant shall make a written motion to the court and prosecutor stating that the defense has an offer of proof concerning the relevancy of evidence of the sexual conduct of the complaining witness which the defendant proposes to present, and the relevancy of such evidence in attacking the credibility of the complaining witness.

(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.

(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at such hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.

(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and is not inadmissible, the court may issue an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.

(b) As used in this section, "complaining witness'' shall mean the alleged victim of any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, any degree of attempted rape, attempted unlawful sexual intercourse, attempted unlawful sexual penetration or attempted unlawful sexual contact, conspiracy or assault.

60 Del. Laws, c. 257, § 1; 66 Del. Laws, c. 269, §§ 3-5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 285, § 2.;

(a) Notwithstanding any other provision of this Code to the contrary, and except as provided in this section, in any prosecution for any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, any opinion evidence, reputation evidence and evidence of specific instances of the complaining witness' sexual conduct, or any of such evidence, is not admissible by the defendant in order to prove consent by the complaining witness.

(b) This section, however, shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant.

(c) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and such evidence or testimony relates to the complaining witness' sexual conduct, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence introduced by the prosecutor or given by the complaining witness.

(d) Nothing in this section shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in § 3508 of this title.

(e) As used in this section, "complaining witness'' shall mean the alleged victim of the crime charged, the prosecution of which is subject to this section.

60 Del. Laws, c. 257, § 1; 66 Del. Laws, c. 269, § 6; 71 Del. Laws, c. 285, § 2.;

In any criminal proceeding in which ownership, possession or use of a motor vehicle is an issue, a certified copy of the certificate of title on file with the Division of Motor Vehicles shall be admissible as proof of ownership of the motor vehicle.

64 Del. Laws, c. 276, § 1.;

(a) In any criminal case or hearing on delinquency, upon motion of the Deputy Attorney General prior to trial and with notice to the defense, the court may order all questioning of any witnesses under the age of 12 years to be videotaped in a location designated by the court. Persons present during the videotaping shall include the witness, the Deputy Attorney General, the defendant's attorney and any person whose presence would contribute to the welfare and well-being of the witness, and if the court permits, the person necessary for operating the equipment. Only the attorneys or a defendant acting pro se may question the child. The court shall permit the defendant to observe and hear the videotaping of the witness in person or, upon motion by the State, the court may exclude the defendant providing the defendant is able to observe and hear the witness and communicate with the defense attorney. The court shall ensure that:

(1) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;

(2) The recording equipment was capable of making an accurate recording, the operator was competent to operate such equipment and the recording is accurate and is not altered;

(3) Each voice on the recording is identified;

(4) Each party is afforded an opportunity to view the recording before it is shown in the courtroom.

(b) If the court orders testimony of a witness taken under this section, the witness may not be compelled to testify in court at the trial or upon any hearing for which the testimony was taken. At the trial or upon any hearing, a part or all of the videotaped deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence. If only a part of a deposition is offered in evidence by a party, an adverse party may require the party to offer all of it which is relevant to the part offered and any party may offer other parts. Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition.

(c) The witness need not be physically present in the courtroom when the videotape is admitted into evidence.

(d) The cost of such videotaping shall be paid by the court.

(e) Videotapes which are part of the court record are subject to a protective order of the court for the purpose of protecting the privacy of the witness.

65 Del. Laws, c. 109, § 1; 70 Del. Laws, c. 186, § 1.;

Any victim or the victim's immediate family shall have the right to be present during all stages of a criminal proceeding even if called upon to testify therein, unless good cause can be shown by the defendant to exclude them.

67 Del. Laws, c. 232, § 1; 70 Del. Laws, c. 186, § 1.;

(a) An out-of-court statement made by a child victim or witness who is under 11 years of age at the time of the proceeding concerning an act that is a material element of the offense relating to sexual abuse, physical injury, serious physical injury, death, abuse or neglect as described in any felony delineated in subpart A, B or D of subchapter II of Chapter 5 of this title, or in any of the felonies delineated in § 782, § 783, § 783A, § 787, § 1100A, § 1102, § 1108, § 1109, § 1111, § 1112A, § 1112B, § 1335(a)(6), § 1335(a)(7), § 1353(2), or § 1361(b) of this title or in any attempt to commit any felony delineated in this paragraph that is not otherwise admissible in evidence is admissible in any judicial proceeding if the requirements of subsections (b) through (f) of this section are met.

(b) An out-of-court statement may be admitted as provided in subsection (a) of this section if:

(1) The child is present and the child's testimony touches upon the event and is subject to cross-examination rendering such prior statement admissible under § 3507 of this title; or

(2)a. The child is found by the court to be unavailable to testify on any of these grounds:

1. The child's death;

2. The child's absence from the jurisdiction;

3. The child's total failure of memory;

4. The child's persistent refusal to testify despite judicial requests to do so;

5. The child's physical or mental disability;

6. The existence of a privilege involving the child;

7. The child's incompetency, including the child's inability to communicate about the offense because of fear or a similar reason; or

8. Substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit television; and

b. The child's out-of-court statement is shown to possess particularized guarantees of trustworthiness.

(c) A finding of unavailability under paragraph (b)(2)a.8. of this section must be supported by expert testimony.

(d) The proponent of the statement must inform the adverse party of the proponent's intention to offer the statement and the content of the statement sufficiently in advance of the proceeding to provide the adverse party with a fair opportunity to prepare a response to the statement before the proceeding at which it is offered.

(e) In determining whether a statement possesses particularized guarantees of trustworthiness under paragraph (b)(2) of this section, the court may consider, but is not limited to, the following factors:

(1) The child's personal knowledge of the event;

(2) The age and maturity of the child;

(3) Certainty that the statement was made, including the credibility of the person testifying about the statement;

(4) Any apparent motive the child may have to falsify or distort the event, including bias, corruption or coercion;

(5) The timing of the child's statement;

(6) Whether more than 1 person heard the statement;

(7) Whether the child was suffering pain or distress when making the statement;

(8) The nature and duration of any alleged abuse;

(9) Whether the child's young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child's knowledge and experience;

(10) Whether the statement has a "ring of verity,'' has internal consistency or coherence and uses terminology appropriate to the child's age;

(11) Whether the statement is spontaneous or directly responsive to questions;

(12) Whether the statement is suggestive due to improperly leading questions;

(13) Whether extrinsic evidence exists to show the defendant's opportunity to commit the act complained of in the child's statement.

(f) The court shall support with findings on the record any rulings pertaining to the child's unavailability and the trustworthiness of the out-of-court statement.

68 Del. Laws, c. 362, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 467, § 9; 72 Del. Laws, c. 212, §§ 1-3; 80 Del. Laws, c. 175, § 8.;

(a)(1) In any prosecution involving any offense set forth in § 3513(a) of this title, domestic violence as defined in § 1041 of Title 10, and §§ 768 thru 778 and 1312 of this title a court may order that the testimony of a witness less than 11 years of age or any victim of the offenses described herein be taken outside the courtroom and shown in the courtroom by means of secured video connection if:

a. The testimony is taken during the proceeding; and

b. The judge determines that testimony by the witness less than 11 years of age or any victim of the offenses described herein in the courtroom will result in the witness less than 11 years of age or any victim of the offenses described herein suffering serious emotional distress such that the witness less than 11 years of age or any victim of the offenses described herein cannot reasonably communicate.

(2) Only the prosecuting attorney, the attorney for the defendant, and the judge may question the child victim or witness.

(3) The operators of the secured video connection shall make every effort to be unobtrusive.

(b)(1) Only the following persons may be in the room when the witness less than 11 years of age or any victim of the offenses described herein testifies by closed circuit television:

a. The prosecuting attorney;

b. The attorney for the defendant;

c. The operators of the closed circuit television equipment; and

d. Any person whose presence, in the opinion of the court, contributes to the well-being of the witness less than 11 years of age or any victim of the offenses described herein, including a person who has dealt with the witness less than 11 years of age or any victim of the offenses described herein in a therapeutic setting concerning the abuse.

(2) During the witness or victim's testimony by secured video connection, the judge and the defendant shall be in the courtroom.

(3) The judge and the defendant shall be allowed to communicate with the persons in the room where the witness less than 11 years of age or any victim of the offenses described herein is testifying by any appropriate electronic method.

(c) The provisions of this section do not apply if the defendant is an attorney pro se.

(d) This section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time.

(e) The proponent of the witness's or victim's testimony must inform the adverse party of the proponent's intention to offer the testimony and the content of the testimony sufficiently in advance of the proceeding to provide the adverse party with fair opportunity to prepare a response to the testimony before the proceeding at which it is offered.

68 Del. Laws, c. 407, § 1; 72 Del. Laws, c. 212, §§ 4, 5; 80 Del. Laws, c. 59, § 1.;

(a) Definitions — In this section the following words have the meanings indicated.

(1) "Deoxyribonucleic acid (DNA)'' means the molecules in all cellular forms that contain genetic information in a patterned chemical structure of each individual.

(2) "DNA profile'' means an analysis that utilizes the restriction fragment length polymorphism analysis of DNA resulting in the identification of an individual's patterned chemical structure of genetic information.

(b) Purposes — In any criminal proceeding, the evidence of a DNA profile is admissible to prove or disprove the identity of any person, if the party seeking to introduce the evidence of a DNA profile:

(1) Notifies in writing the other party or parties by mail at least 45 days before any criminal proceeding; and

(2) Provides, if requested in writing, the other party or parties at least 30 days before any criminal proceeding with:

a. Duplicates of the actual autoradiographs generated;

b. The laboratory protocols and procedures;

c. The identification of each probe utilized;

d. A statement describing the methodology of measuring fragment size and match criteria; and

e. A statement setting forth the allele frequency and genotype data for the appropriate database utilized.

(c) Prerequisites — If a party is unable to provide the information required under subsection (b) of this section at least 30 days prior to the criminal proceeding, the court may grant a continuance to permit such timely disclosures as justice may require.

69 Del. Laws, c. 249, § 2.;

(a) An out-of-court statement made by an adult who is impaired, as defined in § 3902 of Title 31, or by a patient or resident of a state facility, as defined in § 1131 of Title 16, at the time of the proceeding concerning an act that is a material element of any of the following offenses:

(1) Abuse, neglect, exploitation or mistreatment of an adult who is impaired or a patient/resident, as set forth in § 3913 of Title 31 and § 1136 of Title 16 respectively; or

(2) Any felony set forth in this title which is defined as a violent felony pursuant to § 4201 of this title; or

(3) Any felony set forth in subparts D, E, H or I of subchapter III of Chapter 5 of this title, that is not otherwise admissible in evidence, is admissible in any judicial proceeding if the requirements of subsections (b) through (f) of this section are met.

(b) An out-of-court statement may be admitted as provided in subsection (a) of this section if:

(1) The victim is present and the victim's testimony touches upon the event and is subject to cross-examination rendering such prior statement admissible under § 3507 of this title; or

(2)a. The victim is found by the court to be unavailable to testify on any of these grounds and there is corroborative evidence to support the out-of-court statement:

1. The victim's death;

2. The victim's absence from the jurisdiction;

3. The victim's total failure of memory due to age or other infirmity;

4. The victim's physical or mental disability including the inability to communicate about the offense because of fear or a similar reason; or

5. Substantial likelihood that the victim would suffer severe medical or emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit television; and

b. The victim's out-of-court statement is shown to possess particularized guarantees of trustworthiness.

(c) A finding of unavailability under paragraph (b)(2)a.5. of this section must be supported by expert testimony.

(d) The proponent of the statement must inform the adverse party of the proponent's intention to offer the statement and the content of the statement sufficiently in advance of the proceeding to provide the adverse party with a fair opportunity to prepare a response to the statement before the proceeding at which it is offered.

(e) In determining whether a statement possesses particularized guarantees of trustworthiness under paragraph (b)(2)b. of this section, the court may consider, but is not limited to, the following factors:

(1) The victim's personal knowledge of the event;

(2) The victim's communicative and cognitive abilities at the time the statement is made;

(3) Certainty that the statement was made, including the credibility of the person testifying about the statement;

(4) Any apparent motive the victim may have to falsify or distort the event, including bias, corruption, coercion or a history of false reporting;

(5) The timing of the victim's statement;

(6) Whether more than 1 person heard the statement;

(7) Whether the victim was suffering pain or distress when making the statement;

(8) The nature and duration of any alleged abuse, neglect, exploitation or mistreatment;

(9) Whether the statement has a "ring of verity,'' has internal consistency or coherence and uses terminology appropriate to the victim's mental abilities;

(10) Whether the statement is spontaneous or directly responsive to questions;

(11) Whether the statement is suggestive due to improperly leading questions; or

(12) Whether extrinsic evidence exists to show the defendant's opportunity to commit the act complained of in the victim's statement.

(f) The court shall support with findings on the record any rulings pertaining to the victim's unavailability and the trustworthiness of the out-of-court statement.

71 Del. Laws, c. 334, § 1; 78 Del. Laws, c. 179, § 371; 78 Del. Laws, c. 224, §§ 16, 17.;