Oklahoma Criminal Process – Criminal Defense Attorney Frank Urbanic

Investigation

After a crime is allegedly committed, law enforcement will investigate the allegations. The investigation may include interviewing the victim, witnesses, & suspects; collecting physical evidence; visiting, photographing, & examining evidence at the crime scene; and identifying suspects.

Arrest

When a crime is committed in a law enforcement officer’s presence or the officer has probable cause to believe that certain misdemeanors or any felony was committed out of the officer’s presence, an officer may arrest a suspect on the spot without an arrest warrant. An arrest may not occur immediately after a crime is reported because the law enforcement officer may need to conduct further investigation. In either case, the officer will then submit a Probable Cause Affidavit to the District Attorney, suggesting potential charges to be authorized.

Next, the prosecutor determines whether a person should be charged with a crime and, if so, what the crime should be. The prosecutor must thoroughly review all reports and records concerning the case, including witness statements. The prosecutor also reviews the suspect’s criminal record. Occasionally, the reviewing prosecutor sends the case back to the police to conduct additional investigation.

The prosecutor can issue a charge if he or she reasonably believes that probable cause exists that the suspect committed the offense. However, prosecutors should apply a higher standard—whether the charge can be proved beyond a reasonable doubt at trial with the information known at that time. A warrant for arrest will be issued when the prosecutor issues the charges.

Arrest occurs when the police officer takes the suspect into jail. Booking is the process of actually putting the suspect in jail.

Initial Court Appearance – Arraignment

This is the first time a defendant will go before a judge. The defendant’s legal rights will be described, an initial plea of not guilty will be entered, and a bond will be set. In some cases, this bond may be an “Own Recognizance Bond” (OR bond), which requires no payment of money to a bondsman. The judge will tell the defendant when to appear in court next. The next court date will typically be about a month out. The defendant will receive a copy of the Information and Probable Cause Affidavit. The Information briefly describes what the defendant did to violate the law and cites the statute the defendant allegedly violated. The Probable Cause Affidavit is like a mini police report.

All further pre-trial procedures are determined by whether the defendant is charged with a felony or misdemeanor.

Misdemeanor

The defendant will typically be placed on a disposition docket. While on the disposition docket, the defendant must decide whether to plead guilty (or no contest) or go to trial. The defendant’s attorney will use the time the defendant is on the disposition docket to gather evidence, investigate, and negotiate with the prosecutor. The trial procedures listed below are mostly the same for felonies and misdemeanors. A major difference between the misdemeanor and felony procedures is that the defendant does not get the opportunity for a preliminary hearing in a misdemeanor case.

Felony

Preliminary Hearing Conference (PHC)

These appearances are a time for the attorney and the prosecutor to discuss the case. The prosecutor will make a plea bargain recommendation. The attorney will negotiate with the prosecutor to try and improve the negotiated plea. If the defendant accepts the offer, he or she would waive—or give up—their right to a trial and plead guilty. If the defendant does not accept the plea recommendation, the case will be set for a preliminary hearing.

Preliminary Hearing

A preliminary hearing is a court hearing where witnesses testify and a judge decides whether there is enough evidence against the defendant to order a trial. The State must present enough evidence to show the court probable cause that a crime was committed and probable cause that the defendant committed the crime. The defendant will be “bound over” for trial if the court believes the State presented enough evidence to show there is probable cause to believe the defendant committed the crime(s). Probable cause is a very low standard. The vast majority of defendants get bound over. The prosecutor is not required to present all of their witnesses or all of the evidence they have collected. They are only required to present enough evidence to meet the probable cause standard. The defendant, through his or her attorney, can cross-examine the witnesses and may have the opportunity to present evidence—including witnesses.

If the judge decides that there is not probable cause that the defendant committed the charged crime(s), the judge can bind the case over on different charges, reduce the charges to misdemeanors for trial in District Court, or dismiss charges. A defendant can give up his or her right to a preliminary hearing by waiving it. Many prosecutors will threaten to make the plea recommendation worse if a preliminary hearing occurs. A preliminary hearing should generally be conducted if there is a strong belief that the case will go to trial. The preliminary hearing gives the defense an opportunity to see some of the State’s evidence, gather information for further investigation, and get witness testimony on the record.

Pre-Trial Conference (PTC)

If a defendant loses the preliminary hearing, he or she will appear before a judge to get arraigned. The defendant will enter a plea of not guilty and receive the official charging documents. After the arraignment or waiver of preliminary hearing, the defendant will be on the PTC docket. This gives the attorney additional time to negotiate and investigate. A defendant may still plead during this phase; they are not required to go to trial.

The defense is not entitled to receive certain evidence until various points in time, so prosecutors often withhold evidence until they are required by law to turn it over. Generally, prosecutors will keep evidence such as video, audio, pictures, and medical reports away from the defense as long as possible. Prosecutors typically begin turning over more evidence once the case is set for trial.

Pre-Trial Hearing

The trial court judge may be called upon to resolve various pre-trial issues. Some will determine whether the case will continue to a trial, be resolved with a plea, or be dismissed. Various motions may be heard that can affect what evidence will be admissible at trial. These include a motion for discovery, motion in limine, motion to suppress, and motion to dismiss.

Jury Call Docket

This is a hearing where the defendant and his or her attorney meet with the judge and the prosecutor to announce whether the defendant wants to go to trial or plead guilty. If the defendant decides to proceed to trial, the judge will schedule the trial’s start date.

Possible Outcomes

Dismissal

My goal in every case is dismissal. However, that is not always possible. Dismissal typically requires a strong legal reason or very compelling mitigating circumstances. Prosecutors are very hesitant to dismiss a case. However, they are more likely to dismiss a case if they can be persuaded with some legal reason why they would not succeed if the case were to go to trial. Sometimes, a plea deal can be worked out where one or more counts are dismissed in exchange for a guilty plea on one or more other counts.

Trial

Either a judge or jury may determine guilt. A bench trial is where a jury is waived and the judge alone decides whether the defendant is guilty or not guilty. In most cases, both sides must agree to waive a jury and proceed to a bench trial. For the State to win a trial, the prosecutor must present enough evidence to prove beyond a reasonable doubt that the defendant committed the crime(s) he or she is accused of committing.

A jury trial starts by the random selection of local county residents from a list of licensed drivers. They are summoned to the court as potential jurors. The judge, prosecutor, and defense attorney question the jurors about their backgrounds and beliefs. This is called “voir dire.” The attorneys are permitted to kick off a limited number potential jurors.

After twelve (or six for misdemeanor trials) acceptable jurors remain, the judge administers an oath to the jury and reads basic instructions. The prosecutor gives an opening statement to outline the State’s case and evidence to the jury. The defense may give an opening statement or wait until later in the trial. The prosecutor calls witnesses, which the defense may cross examine. After presenting all the State’s evidence, the State will rest its case. If the judge determines at that time that there is not enough evidence that a jury would find the defendant guilty, then the judge will dismiss the case.

If there is enough evidence that a jury might find the defendant guilty, then the defendant will have an opportunity to present evidence. There is no requirement for the defendant to present evidence. The defense may call witnesses, and the prosecutor may cross-examine them. The defense rests after they have presented their case. The prosecutor may present rebuttal witnesses and evidence to challenge evidence presented by the defendant, and the State will rest upon conclusion of their rebuttal. Occasionally, the trial judge will let the defense present a surrebuttal case to respond to the State’s rebuttal witnesses’ testimony.

The prosecutor presents their closing argument to the jury first. Next, the defense presents its closing argument to the jury. Since the State has the burden of proof, the prosecutor may present the final closing argument to rebut the defendant. The judge gives the jury instructions about the charged crimes and the deliberation process. Finally, the jury retires to the jury room and deliberates.

To convict, the jury must determine guilt beyond a reasonable doubt. If the jurors have a reasonable doubt as to guilt, then the jury must find the defendant not guilty. The only way the jury may convict the accused is for all members to find evidence of guilt beyond a reasonable doubt.

If all members of the jury find the defendant not guilty, the case is over. If the jury finds the defendant guilty, then the case proceeds to sentencing. If the defendant has a prior felony conviction that will be used to enhance the current sentence, then guilt is decided in one stage and sentencing is decided in another stage. The second stage is a mini trial that is conducted just for purposes of sentencing. A defendant does not have the right to waive jury sentencing or demand sentencing by the judge.

A jury recommends a sentence, and a judge determines the final sentence. A judge must give the sentence returned by the jury, but the judge may be able to deviate from the sentence when allowed by statute or in the public interest. If the defendant is charged with more than one count, the judge may decide whether to run the counts concurrently or consecutively. In most cases, the judge sentences the defendant to what the jury decided.

If the jury does not come to a unanimous decision, the case will be declared a mistrial. If this happens, the State can choose to either retry the case, no longer pursue charges against the defendant, or offer a new plea deal.

Appeal

Every person convicted in Oklahoma is entitled to an appeal of their conviction to the Court of Criminal Appeals. Certain actions must be taken within statutorily prescribed time periods, so time is of the essence when considering an appeal.

Plea Options

Plea negotiations typically end up with the defendant pleading to either a deferred or suspended sentence. Both involve an amount of time on probation. The probation may be supervised or unsupervised. If it is supervised, a defendant must regularly report to a probation officer. If it is unsupervised, a defendant simply must obey the rules of probation and not break the law.

Deferred Sentence

With a deferred sentence, the defendant pleads guilty but does not receive an immediate conviction. The judge finds the defendant guilty of the crime but postpones (or “defers”) sentencing until a later date. If the defendant does everything the court orders them to do, the court will dismiss the case and the charge will not appear on the defendant’s record. A defendant may be ordered to, for example, pay all court costs and fees, see a probation officer, go to treatment, and not break the law again. If the defendant does not successfully complete the deferred sentence requirements or adhere to the terms of probation, the court may sentence him or her to jail or prison.

Suspended Sentence

With a suspended sentence, the defendant pleads guilty, receives an immediate conviction, and is sentenced to a term in jail or prison. But, all or part of the sentence is suspended and the defendant is put on probation for the period of time that the sentence is suspended. The defendant does not have to go to prison for that amount of time as long as he or she satisfies the conditions of probation. If the defendant violates the terms of probation, he or she may be sentenced to spend the entire sentence in jail or prison.

Reduce to Misdemeanor

It may be possible to have some cases that were originally filed as a felony reduced to a misdemeanor through plea negotiations. Prosecutors may reduce any non “85% crime” to a misdemeanor. An “85% crime” is one that is considered especially bad, such as murder and rape. They are listed in 21 OS § 13.1 Per 22 OS § 234, any felony not listed in 21 OS § 13.1 can be charged as a misdemeanor.

Blind Plea

A blind plea is essentially where the defendant throws themselves on the mercy of the court. Think of it like a mini trial. The defendant admits guilt and basically asks the judge for mercy. The prosecutor puts on their case as to why the defendant should receive the punishment the prosecutor thinks the defendant deserves. Then, the defense tells the court what they think the punishment should be. As a defense attorney, we hope that the judge sees our point of view better than the prosecutor’s.

This is a good time to present mitigating evidence that you may not have been able to bring up in trial, so it’s a good idea to know a lot about the client’s background and good things they’ve done. For instance, you can talk about the client’s military service and their upbringing. Maybe they lived in a foster home and had a lot of very negative influences, or maybe their parents were drug addicts. These are things that a defense attorney can use to humanize the client and hopefully get the judge to feel sympathy. A blind plea is a good thing to do when the offer from the prosecutor is bad, you don’t think that going to a jury trial would get you a much better outcome, and you think the judge would give you a better sentence than either of those two previous options.

Sources:

Title 22 of the Oklahoma Statutes – Criminal Procedure
21 OS §13.1
22 OS § 234