If charged in any state or county court in Oklahoma, there are approximately ten steps from the arrest through the appeal (if convicted). The steps in federal court are different as outlined below. Of course the actions of your attorney, the rulings on motions, or an intervening “plea bargain” may eliminate some of the steps at anytime during the investigation.
1. Pre-charge Investigation. Typically, this step was completed before a defense lawyer’s involvement. Regardless of whether the State’s investigation is complete, our investigation may turn up additional information that may be helpful to your defense and avoid the a charge ever being filed or may result in a dismissal. Even if you tell me that you are “guilty,” we may conduct a “mitigation” investigation to provide the District Attorney (“D.A.”) or the Judge with information to show that you are a good a decent person deserving of a second chance. An accused (i.e., the defendant) likely is not entitled to an attorney at this stage – unless the accused is brought in for questioning. A suspect or target of an investigation may always hire his or her own attorney at any time – the sooner the better.
2. Arrest. Sometimes this is avoided if counsel is involved before the arrest. Most typically in state court actions, the arrest is made before the accused is aware he is a suspect or target of an investigation.
3. Initial appearance/bail. At the defendant’s first court appearance, he will simply appear to receive a copy of the charges and be given a new date to appear in court. If a bond has not been negotiated, the initial appearance is when bond or bail will be set. This is often incorrectly referred to as an “arraignment.” If the charge is a misdemeanor, the first appearance technically is an arraignment, but for felony charges, the first appearance is only an “initial appearance.”
4. PHC. The next step in the process is generally a preliminary hearing conference. While some counties do not have the PHC, most have some type of conference before the preliminary hearing. At this conference, the attorneys for the State and the defendant meet to determine whether a negotiated plea can be reached. If it cannot be reached, a preliminary hearing is scheduled (or perhaps the case is dismissed). Depending on the county, there may be two or three of these conferences. If a plea is negotiated, the client generally skips to step 8.
5. Preliminary hearing. At the primary hearing, the State has the burden of proof to establish that a crime was committed and that the defendant (the “accused” or “person charged”) committed the crime. At this stage, the evidence is reviewed in the light most favorable to the State. That means that any reasonable evidence which tends to establish that the defendant was responsible for the act(s) is sufficient to obtain a “bind over.” When bound over for trial, that simply means that the defendant will be held for trial or further negotiations. It does not mean that the defendant goes to jail at that time. At a preliminary hearing, there is always the possibility that the evidence presented may result in “different” crimes being charged or additional counts of the crimes being added. If that should happen, then the bail will likely be adjusted. It is also possible that the charges will be dismissed if the State fails to establish probable cause that the defendant committed the acts charged. In limited circumstances, the defendant may elect to waive (or abandon) the preliminary hearing, but this is generally not recommended. There is no preliminary hearing if the charge is a misdemeanor.
6. Arraignment. This is the first time the accused (the “defendant”) enters a plea of guilty or not guilty. In a felony case, the accused is not arraigned unless probable cause is found at a preliminary hearing or unless the preliminary hearing is waived by agreement.
7. Motions Hearing. If bound over for trial, both the prosecution and the defense may file any appropriate legal motions. For example, a client might have a motion to dismiss the case, a motion to suppress evidence, a motion for discovery (i.e., for production of the State’s evidence), and any other motions that a lawyer believes in good faith to be appropriate for the given case. At the motions hearing the judge will make a ruling on the motions. If the judge does not dismiss the charges, the next step is trial.
8. Trial. At trial, the defendant is entitled to a jury of twelve peers for a felony trial or a jury of six or eight members for a misdemeanor. The State presents its evidence first by calling witnesses and producing documents or other tangible items as evidence. At the conclusion of each witness’s testimony, the defense attorney is permitted to cross-examine each witness and to present any defense evidence through those witnesses. After the State has presented all of its witnesses and evidence, the State will rest. If the judge determines at that time that there is sufficient evidence that a jury might find the accused defendant guilty, then it is the defendant’s turn to present evidence. However, a defendant is never required to present any evidence. In many cases, there will be no evidence presented by the defense at this stage.
If there is evidence, the defense attorney calls any defense witnesses and presents additional defense exhibits (if any exist or are relevant). Likewise, the State is permitted to cross-examine any defense witnesses and to present additional evidence through any of the defense witnesses. After the defense has presented its case, the defense will rest and again ask the judge to dismiss the charges because there is insufficient evidence to allow the jury to consider the case or for other technical reasons that may or may not exist in any given case.
If the judge does not dismiss the charges, then the State may present any rebuttal evidence. Typically, if rebuttal evidence is presented, the defense is permitted to present a surrebuttal case. At that time, the case is over except for closing arguments.
The attorneys for the prosecution are permitted to present their oral “closing argument” to the jury first. At the conclusion, the defense presents its closing argument (summary of the case) to the jury as to why the jury should find the defendant not guilty. Because the State has the burden of proof, the State gets the last word in its final closing remarks. Then the jury is instructed on the law.
To convict, the jury is required to determine guilt beyond a reasonable doubt. In other words, if the jury or any one of 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 the unanimous jury (100% of its members) to find evidence of guilt beyond a reasonable doubt. That is not to say guilt beyond “any” doubt or beyond “a shadow of a” doubt. There is no magical numerical percentage, but it would be somewhere between 95% and 100% if we were to try to place a percentage into the definition of “beyond a reasonable doubt.”
If the jury returns a verdict of not guilty, the case is over. If this jury finds the defendant guilty, then the case proceeds to sentencing. If the accused has never been previously convicted of a crime, the jury determines both guilt and innocence and/or sentencing during the same deliberation. If the client has a prior felony conviction, then guilt and innocence is presented in one stage and sentencing is presented in a second stage – in other words, there is a second “mini-trial” for sentencing.
9. Sentencing. Even though jury recommends sentence, the final sentence is determined by the judge. The judge could not go beyond the jury recommendation. Technically, a judge must give the sentence returned by the jury, but the judge may be able to “suspend” part or all of the sentence. If there is more than one count charged, the judge may allow the defendant to serve any of the counts concurrently (i.e., at the same time), or the judge may require that the sentences be served consecutively (i.e., “stacked”).
For each of the steps in paragraphs 2 – 7, the defendant is absolutely entitled to an attorney. If the defendant cannot afford an attorney, one may be provided at State’s expense if the court determines that the defendant is unable to pay. Also, the accused defendant has the right to choose his own lawyer if he can afford to retain a lawyer. The accused is not entitled to choose which court-appointed lawyer is appointed to represent him if he is indigent and cannot afford counsel.
10. Appeal. If convicted, the defendant has an automatic right to appeal. On appeal, the standard is no longer beyond a reasonable doubt. Once a jury has determined the defendant to be guilty, the burden shifts to the defendant to show that he is not guilty. The burden of proof shifts to the defendant for the first time in this legal process. If you cannot afford an attorney at this stage, an attorney will be provided for the first level of appeals. If you wish to proceed beyond the direct appeal, you must hire your own lawyer.
The State does not generally have a right to appeal if you are found not guilty (i.e., acquitted). However, if the judge dismisses the case before it is submitted to the judge or jury on the merits, then the State has the legal right to appeal. For example, if a judge suppresses evidence which is necessary for conviction, the State may appeal the judge’s ruling suppressing the evidence. But once you’ve gone to trial, if the jury reaches a “not guilty” verdict, the case is over.
This is simply a quick summary of the various steps in the legal process. It is not intended to be an extensive treatise on the procedures or legal processes. Depending on the type of case, the jurisdiction (federal or state) or the county where the charge is filed, the number of charges, the number of defendants, and the complexity of the facts and law, these steps can take anywhere from three months to two years to complete – not including the appeal. An appeal generally takes anywhere from six to 18 months or more. Again, this is just to give you a rough time line.
Call the Wyatt Law Office at 405.234.5500 for your Top-Rated Oklahoma Criminal Defense Lawyers and Attorneys.