Do Not Talk To the Police; They Are Not Your Friends. You have a 5th Amendment right to Remain Silent. Please use it. Make your Case easier on yourself, and for me to fight for you.
The most important thing to remember is never make any statements. Do not admit nor deny anything. Many people do not recognize the law provides protection in the form of the 5th amendment which allows for everyone not to incriminate themselves. An admission will surely detrimentally affect your case. Likewise, people often do not realize a denial can also hurt your case. It is best to stay quiet and ask for your attorney.
You will not talk your way out of getting arrested or going to jail. Your statements will only feed law enforcements investigation of you and most likely will be used against you. As I tell my client’s once I am your attorney you are not to speak with anyone about your case. Just as the police are not allowed to continue questioning you once your request for a lawyer is made.
The Criminal Process
The criminal process takes place in stages. Each part is important to understand. There is a time and place for every part of the criminal process. Knowing each part is something everyone facing a criminal charge should understand.
A criminal charge is like being sued by the State for something they believe you’ve done wrong. However, instead of only asking for money in their suit they will be asking the Judge to take away your freedom as well. Fortunately, like any law suit the State must prove their allegations first.
Part 1 – The Arrest
There are three possible ways that can start the State’s suit. The First (1st) and most common situation involve an officer arresting an individual without a warrant. A police officer can make an arrest without a warrant if:
- the police observe the person attempting or committing a crime, or
- a reliable informant provides reasonably sound information to the police regarding a felony crime and the person who committed that crime, and if time permits, the police verify the information, or if time does not allow, the police should be reasonably certain that the information is valid, or
- the time lost in obtaining a warrant would permit the perpetrator to escape or evidence to be lost, and
- the officer has probable cause for an arrest.
The second (2) way is by charging Information that lays out the relevant factual situation and the offense for which the individual is charged, and lastly (3) a grand jury indictment in which evidence is present to a group who will decide if there is enough . In either situation, an arrest warrant will be issued, and an individual may be arrested pursuant to the warrant.
When an individual is arrested, they will be processed (booked in), usually at the local police station or county sheriff’s office, and depending on the criminal charges involved, can be held over for an initial appearance before a judge who has jurisdiction.
Part 2 – The Initial Court Appearance
After a person has been arrested and booked into jail a person is usually given a bond amount. This bond is often assigned via video arraignment (in Oklahoma County) according to the charges the person has pending. This will be followed (normally at a later time) a formal arraignment. A court proceeding where the Judge reads the charges filed on the defendant a plea of Not Guilty or Guilty is entered to follow by a later court date.
Bonds 2.1- Purpose/Lowering the Bond
Many counties use a Bond schedule to automatically assign a bond amount to according the charges that are pending against a person. A Defendant can request a hearing to lower bail at any time during the criminal process. Generally, a judge will consider the following in deciding whether to lower bail: T
- The offense the Defendant is charged with;
- The criminal history of the Defendant, if any;
- Whether the Defendant is a flight risk;
- Any potential danger to the public; and
- Other relevant factors the judge may deem applicable.
In Oklahoma this hearing is generally referred to as a Brill Hearing.
Keep in mind, the main purpose of setting bail is to insure that the Defendant will appear at all required court proceedings, while also protecting the public from any potential threat of harm. According to our constitution the Defendant is presumed innocent and should have the right to be free while their case is pending. There are other restrictions that can be put in place, such as GPS ankle-monitoring, or a conditional Bond (which will have certain requirements for the Defendant) which may sway a judge into lowering bail. One factor that a judge will not consider: the Defendant’s ability to pay the bail. Although, to the Oklahoma Constitution bail is a right, it may be denied for:
- capital offenses when the proof of guilt is evident, or the presumption thereof is great;
- violent offenses;
- offenses where the maximum sentence may be life imprisonment or life imprisonment without parole;
- felony offenses where the person charged with the offense has been convicted of two or more felony offenses arising out of different transactions; and
- controlled dangerous substances offenses where the maximum sentence may be at least ten (10) years imprisonment.
Yet, even if the Defendant is charged with one of the above offenses, the proof or presumption of guilt must be great. Furthermore, the judge must also find that there is no condition he or she can impose that will assure that there is no threat of danger to the public.
Bonds 2.2 – Posting the Bond
There are many ways to post his or her bail. If enough funds are readily available, a Defendant can simply post cash in the full amount. Another method is putting up collateral such as land or a house. The most common way is to use a bail bondsman services. An Oklahoma bail bondsman will usually require that the Defendant post 10% of the total bond with the bail bondsman acting as a surety for the remaining amount. Many bail bond providers will also require collateral if the Defendant is not a resident of Oklahoma along with a co-signor.
Part 3 – Preliminary Hearings
The Oklahoma Constitution provides all individuals charged with a felony the right to a Preliminary Hearing. A Preliminary Hearing is an evidentiary hearing at which the State of Oklahoma, must present enough evidence to give the judge probable cause the alleged crime was committed. This hearing will only determine questions of Law. There will not be a jury present. Specifically, the prosecutor must present enough evidence to show the court:
- probable cause that a crime was committed, and
- probable cause that the defendant committed the crime.
If the judge presiding over the preliminary hearing finds the prosecution has met its burden, then the judge will “bind over” the Defendant for trial. The Defendant will then have to appear for District Court Arraignment in front of the District Judge assigned to his or her case. However, many times a Defendant will waive his or her Preliminary Hearing in the interest of further negotiating a plea agreement if he or she is guilty of the offense.
Part 4 – Plea Negotiations
There is neither a Constitutional right nor a statutory right to a plea agreement. However, the reality of the Oklahoma criminal process is that the vast majority of criminal cases end in a plea bargain. Plea agreements should only be pursued when the Defendant is ready to admit responsibility to the court and plead guilty. Often Plea agreements allow the Defendant to not be convicted of the crime and face a probation period in lieu of jail time. Plea agreements can see the charges amended sometimes to a lesser charge (e.g. amending a felony drug charge to a misdemeanor charge.) A Judge does not have to accept a plea agreement and may deny the agreement.
Part 5 – Jury Trial
Every person charged with a criminal offense that can deprive the person of their freedom is entitled to a jury trial in Oklahoma. An Oklahoma misdemeanor jury will consist of six (6) people. An Oklahoma felony jury will consist of twelve (12) people. You have the right to be represented by an attorney of your choice at jury trial. There are numerous other jury trial rights including but not limited to:
- the right not to testify or to testify,
- the right to confront witnesses, and
- the right to use the court’s process to compel the production of favorable evidence.
Furthermore, guilt must be proven beyond a reasonable doubt, which is the highest burden in our legal system. The jury verdict must be unanimous as to either guilt or innocence. If the jury cannot come to a unanimous decision, the case will be declared a mistrial. If a mistrial is declared, the State of Oklahoma will have the option of retrying its case-in-chief against the Defendant.