Citizen’s Primer on Oklahoma Criminal Procedure

You’ve seen it on the news; a crime is reported, the police have made an arrest and the court system takes over. On your average police procedural that’s all she wrote - the criminal goes to jail and everyone else goes on with their lives. In the real world, however, it’s never that tidy. All too often, news reports - written by reporters who aren’t acquainted with the criminal justice system - do more to muddle the issues than to inform the public. This article will try to give a rundown of Oklahoma criminal procedure to help sort out these confusing issues. It should be noted that this is limited to Oklahoma, as there are significant variations from state to state, and from jurisdiction to jurisdiction. Thus, an explanation of Oklahoma procedure would be of limited application to Texas, or a federal court, or even a tribal court.

All criminal prosecutions start with some sort of report by law enforcement. A citizen calls in a complaint about a theft, neighbors report a domestic dispute, or police discover a crime during a routine traffic stop. What happens next often depends on whether the crime involved is a felony or a misdemeanor. Felonies are serious crimes, often involving violence, such as murder, rape, kidnapping, robbery or burglary. Misdemeanors are less serious crimes, such as traffic offenses, public intoxication and so forth. Some crimes can be misdemeanors or felonies, depending on the circumstances. For instance, domestic abuse and driving under the influence are misdemeanors for the first offense, while they are felonies on the second and all subsequent offenses; for most theft offenses, if the amount stolen is below a certain amount (fixed individually for that crime), then it is a misdemeanor, but theft of something above the designated value is a felony.

Determination of what the proper charge is, at least initially, helps a police officer determine what happens next. If a police officer has probable cause (a reasonable belief that a person has probably committed a crime) to believe a felony has been committed, then he can arrest the suspect if he finds him. On the other hand, even if he has probable cause to believe a misdemeanor has been committed, a police officer can generally only arrest a suspect for a misdemeanor committed in his presence.

Whether or not the suspect is immediately arrested, the police officer will submit a report to the local District Attorney’s Office, where a prosecutor will review it and decide what charges, if any, are to be filed. The prosecutor can return the report back to the police officer for further investigation, can decline to file charges, or can file charges, either the charges recommended by the officer or different charges. These charges are most commonly filed as a document called an Information, because the document is the means by which the prosecutor informs the court that he believes the suspect, now called the defendant, has committed a crime. If the defendant is not in jail, then the judge will usually issue a warrant for their arrest. In some misdemeanors, sometimes the defendant will be sent a notice by mail to turn himself in before a certain date, or else a warrant will be issued.

In other states or in the federal system, for serious charges, the charges will be referred to a grand jury, a group of people drawn from the community who must decide whether to file charges, and if so, what charges will be filed. Grand juries have broad powers to investigate crimes, including the power to bring their own witnesses in to testify. If the grand jury decides to file charges, they return a True Bill of Indictment, which is a document that specify the charges against the defendant. If they do not decide to do so, then that is referred to as a “Ano-bill” and the charges are dismissed. In Oklahoma, grand juries are an option for the prosecutors which are rarely used; most district attorneys prefer to simply file their charges as Informations and avoid dealing with the trouble and expense of impaneling a grand jury.

Once arrested, either initially during the investigation or on a warrant after charges are filed, the defendant is brought before a judge for what is called an initial appearance or arraignment. There, the defendant is advised of his rights in the case, advised of the charges filed against him, and set for his next court date. Since the right to be released on bail is guaranteed to all criminal defendants (except in certain very limited circumstances, for very serious crimes) the judge will also set an amount for bail. Some defendants will be released on their promise to reappear for their next court date, without any further cost; this is referred to as a personal recognizance (PR) or own recognizance (OR) bond, depending on which county it occurs in. Others will have a dollar amount set that they must post in order to be released; a defendant with sufficient cash or property can post that with the court clerk in order to be released, or more commonly, just hire a bail bondsman for a lesser amount to post the bond for him. In the event the defendant cannot post bond, he remains in jail while the charges are pending.

Next, in a felony case, the defendant has the right to a preliminary hearing. Prior to that hearing, in most counties, the judge will set the case for a preliminary hearing conference (PHC), which will allow the parties to decide whether that hearing will even be necessary. This also gives a defendant time to hire an attorney if he can afford one or apply for a courtappointed attorney if he cannot; all criminal defendants, except in very minor crimes, are guaranteed the right to a court-appointed attorney if he cannot afford one. Usually, the prosecutor and the defense attorney will meet and discuss the case at PHC and seek to find a resolution that both sides can agree on. Such an agreed resolution that involves probation or a jail sentence for less than the maximum allowed, or on a lesser charge, is referred to as a plea agreement or plea bargain. If the parties can reach an agreement, then generally the defendant will waive, or give up, his right to preliminary hearing, and proceed next to formal arraignment, the next step in the process. If they cannot, then the parties will generally advise the judge to set the case for the hearing and see what the witnesses say when they actually appear in court (as opposed to what the police report says). At the preliminary hearing, the State will call witnesses and present evidence in an effort to show that there is probable cause to believe the defendant committed the crime. The defense can question those witnesses, or on some occasions, call their own witnesses. If the judge decides there is enough evidence to meet the low probable cause standard, he will order the defendant bound over for trial, meaning he has found that there is sufficient evidence. If not, he will order the case dismissed; this result is most common when the State’s witnesses decide after the fact that they do not want to cooperate with the prosecution and do not appear for the hearing

Assuming the defendant is bound over, either by waiving preliminary hearing or by having lost at the preliminary hearing, the next step is formal arraignment. At formal arraignment, the defendant appears before another judge, and is once again advised of the charges, his rights, and generally enters a plea to the charge. In Oklahoma, a defendant can choose between Not Guilty, Guilty, or No Contest, or he can choose to remain silent, and the judge will enter a plea of Not Guilty for him. If the parties have a plea agreement, then the defendant will generally plead Guilty or No Contest at that hearing and receive the agreed-on sentence. If not, then the defendant will enter a plea of Not Guilty. If he pleads Not Guilty, then the judge will set the case for the next step, usually called disposition.

A disposition hearing is generally intended to be a last chance for the parties to tell the court whether they genuinely want a trial, and if so, what kind of trial. A trial can either be a bench trial, where the judge makes the decisions as to guilt and punishment, or a jury trial, where a jury is called in to hear the evidence and make those decisions. Disposition usually gives the attorneys one last chance to meet, discuss their case, and decide if they can reach an agreement. If not, then the parties tell the judge whether they want a bench trial or a jury trial. The judge will also often set deadlines for the parties to file any motions they have, for discovery and other necessary matters. The matter is then set for trial.

In cases that are being tried, the parties will be required to exchange a list of their witnesses and provide any evidence they have to the other side. This process is called discovery. Generally, if a party does not disclose his evidence before the discovery deadline, then that evidence cannot be used at trial. The purpose of this procedure is to prevent either of the parties from obtaining an unjust verdict by unfairly surprising the other party, rather than a just result based on a fair presentation of all the evidence. Additionally, the judge will hear motions challenging evidence at trial, as to whether it was legally obtained and thus can be used. Evidence obtained by police in violation of a defendant’s constitutional rights cannot generally be used against that person. Thus, if the police violate a defendant’s right to remain silent by torturing him to obtain a confession, then that confession cannot be used in evidence. Likewise, evidence obtained in violation of the law as to search and seizure cannot be used either. Whether evidence was lawfully obtained and can be used, or whether some exception to the rules applies, is often a hotly disputed issue in the proceedings leading up to trial.

Assuming that the parties comply with the court’s discovery orders, and the prosecution still has evidence it can use, then the parties proceed to a trial. If a jury trial is held, in a felony case, then twelve jurors will be selected to hear the evidence. Their decision as to whether or not the defendant is guilty must be unanimous. If the jurors cannot agree, that is called a hung jury and they are dismissed; the prosecutor will then decide whether he wants to proceed with another trial or just abandon the effort and dismiss the charges. If the jury agrees on a verdict of Not Guilty, then the judge will dismiss the charge; this is referred to as acquittal. If the jury agrees on a verdict of Guilty, they will then generally recommend a punishment. In that situation, the judge will set the case for one last hearing, called sentencing, and revoke the defendant’s bond, jailing him immediately. In a bench trial, the same thing happens, except that it is only the judge making those decisions, and not a jury.

At sentencing, the judge must generally follow the jury’s recommendation, and sentence the defendant accordingly. However, he has the option of converting some or all of that sentence to probation as a suspended or deferred sentence. The parties can produce evidence at sentencing as to whether or not this should be done, and then the judge issues his sentence. From the date the judge announces the sentence, the defendant has ten days to file an appeal with the Oklahoma Court of Criminal Appeals if he wishes to appeal. The appeals court will then review the record to see whether to uphold the verdict and sentence, reverse for a new trial, or modify the sentence. If the appeal is not filed, or when the appeal is concluded, then the case is over.

This description is a good general outline for your average felony case. In murder cases, if the State wishes to seek the death penalty, then the State must file an additional charging document, called a Bill of Particulars, before the formal arraignment hearing (noted above). That document will outline why the prosecution believes that this crime deserves a death sentence. If filed, then the trial becomes a two-stage proceeding. In the first stage, the jury simply determines guilt. If the jury finds the defendant guilty, then there will be a second stage (essentially another trial), where the jury hears evidence as to whether the death penalty ought to be imposed.

In a misdemeanor case, the procedures are somewhat simpler. The preliminary hearing stage is completely skipped, and the defendant (if he pleads Not Guilty at his arraignment, that first appearance before the judge) proceeds immediately to disposition. A jury in a misdemeanor case is composed of only six people, rather than twelve for a felony, and four of those six can render a verdict in a case where the crime charged is punishable by no more than six months in jail. Hopefully, this incredibly

Hopefully, this incredibly simplified explanation of the criminal justice system is helpful to understanding news reports about the status of criminal charges. It should go without saying that relying on this for more than general informational purposes is a poor idea. Even worse, this should not be used in an effort to navigate the criminal justice system in your own criminal case, without an attorney’s assistance. An old adage in the law is that “the man who is his own lawyer has a fool for his client.” If you have questions about criminal proceedings, you should definitely consult an attorney, as each case is very different, and the resolution of difference cases often turn on their particular facts. Hopefully, however, the next time you hear a news reporter telling you about a prominent case, this will give you an idea of what is going on in the process.

Michael Haggerty is a frequent contributor to The Madill Record. He has been an attorney in private practice in Durant for 25 years, whose practice encompasses Bryan, Marshall, Atoka and Johnston Counties. He is past president and officer of the Oklahoma Criminal Defense Lawyers Association and has served as a member of the OCDLA’s Board of Directors for over a decade. Haggerty is also a long-time municipal prosecutor and served the City of Madill for 18 years as municipal judge.