Below you will find answers to commonly asked questions about the criminal process.
Another very helpful resource is the non-profit group Flex Your Rights and their FAQ page. They also have a great series of You Tube videos.
This You Tube Video is precisely how to act to assert your constitutional rights during a traffic stop. CLICK HERE
Say NOTHING. Consent to nothing. Refuse to consent to searches, physical evidence like hair, DNA, handwriting, or anything else. If the police ask you questions invoke your right to remain silent and insist on a lawyer. Period. Normally, police will stop asking questions. Do not act disrespectfully towards the police or give them a hard time in any way. Always be respectful and polite, even when refusing to speak to the police or declining consent to a search. Whatever you do, never resist arrest, verbally berate an officer or try to run from the police, even if you believe that you did not do anything wrong.
The prosecutor is the attorney who represents the government against a criminal defendant. The prosecutor represents ONLY the State Of Oklahoma they do not represent the victim or complaining witness. In Oklahoma , each of the 77 counties has at least one and sometimes several district attorneys who serve as the chief law enforcement officer in the county. In many cases the police file charges only with the District Attorneys consent. Because over 90% of all criminal charges result in plea bargained sentences, the prosecutor is very instrumental in resolving most cases.
Because of the sentences attached to certain crimes the prosecutor has tremendous power in framing the sentence. For example, if the prosecutor charges trafficking the sentencing choice for first offense would be 4–life with no part of that time suspended. If instead the prosecutor charged Possession with Intent, the first time sentencing choices would be 2–life with any part of that sentence could be suspended. . For example, a felony drug offense which would result in probation in one country could result in a state prison sentence in another County. Additionally the prosecutor has the only say as to who will be allowed into certain programs like Drug Court. No judge can sentence a client to Drug Court without the prosecutors permission.
NEVER WITHOUT SPEAKING TO A LAWYER. NEVER. You have very little to gain and EVERYTHING to lose by saying anything to the police. It is not always in a defendant’s best interests to give a statement to the police. Your attorney can advise you whether it is in your best interests to speak to the police. If you are innocent, the matter might be dropped after you give your side of the story to the police.
Law enforcement officers are expertly trained in manipulation and deception that often trick clients into incriminating themselves. The Supreme Court has held that short of coercion deception is proper investigative technique. Detectives, for example, interview and interrogate for a living. They do it day in and day out. They are trained to manipulate you and the environment to achieve a result. They manipulate the environment so that you will feel uncomfortable and vulnerable. You are not among friends. They are not looking out for you. For example law enforcement will say if you confess it will go better for you, or the interviewer will “help”you. What does that mean? Clients interpret it to mean they will receive a lighter sentence or not be charged. But that’s not what the interviewer said and means little or nothing legally to the charging prosecutor or sentencing judge.
No. There is a commonly held misconception that police are required to read a suspect his Miranda rights and that if they fail to do so, that the arrest is so flawed that the charges will be dismissed. First, if you are not in “custody” a legal term) and the police don’t question you about the crime they need not read you your rights. Second, the remedy is not dismissal of the charges, but suppression of the confession. If the police fail to read a suspect his rights, then anything the suspect says cannot be used against him at trial. Likewise, if the police read the suspect his rights and he invokes his right to remain silent or to speak to a lawyer, and the police nevertheless continue to question him, then anything the suspect says as a result of this questioning cannot be used against him at trial.
In some cases, the police would not have a solid case without a suspect’s confession. In other cases, the evidence is so strong against the defendant that the case can be successfully prosecuted even if the confession is not admissible at trial as a result of a Miranda violation.
No offense is minor when you are the one charged! Even relatively minor offenses can have serious long-term consequences. For example, a conviction for drug possession will result in a loss of your driver’s license, even when the offense had absolutely nothing to do with driving a vehicle. A drug conviction will eliminate your eligibility to receive federally subsidized student loans. Any type of non-traffic offense conviction can seriously jeopardize your chances of being accepted into certain graduate school programs or being hired in certain professions, such as teaching. If you hire an attorney, you may be able to successfully fight the charges, or the attorney may find ways to lessen the consequences of the offense.
You should always have an attorney when charged with a misdemeanor or felony and even for some summary offenses. . If you cannot afford to hire an attorney, you should apply for representation by the public defender’s office.
Even if you are in fact guilty and have no defense, a skilled lawyer may be able to present mitigating factors which leads to a more favorable sentence or plea agreement. For example, your lawyer may convince the judge to give you probation or house arrest instead of jail time or he may convince the prosecutor to drop or reduce some of your charges. There are some cases where a defendant is factually guilty, but the police obtained evidence in a manner which violated the defendant’s constitutional rights. If this is the case, the defense attorney can file a motion to have this evidence “suppressed.” If a judge rules favorable the judge will “suppress” the evidence, meaning that the evidence cannot be used against the defendant at trial. In certain cases, such as drug cases, this is usually the end of the prosecution’s case and the charges will be withdrawn. Most people do not know whether they have a suppression issue until they talk to a criminal defense attorney.
Rarely. 97% of federal court convictions are plea bargained and as of 2006, the last year for which we have data, 94% of state court convictions are pled. Both sides have considerable interest in avoiding trial. Trial results are very, very difficult to predict so both sides seek to avoid them. For the accused trials are very expensive because of the amount of time needed to both prepare and conduct a criminal defense for trial. Motions, witnesses, jury instructions and then a full day or two or three completely committed to the client’s case. At our hourly billing rate it adds up very quickly. For the state the trial is also very costly.
No. Your girlfriend did not charge you and she cannot drop the charges. Only prosecutors and law enforcement bring charges in Oklahoma. If your girlfriend wants the charges dropped, chances are that the State will be willing to reduce the charges or offer you a favorable plea agreement. The State will not likely, however, simply drop the charges regardless of what your girlfriend wants. If you are unwilling to accept their offer, the State could very well pursue the charges and in extreme cases, put the uncooperative victim on the stand based on her prior police statement. In State v. Jones, a recent Pottawatomie County child abuse by injury jury trial, Jones was found guilty and sentenced to 10 years for abusing his stepchildren. His ex wife initially made the charges, and then subsequently said she lied. The State arrested her as a material witness (they could not have done that to her if she was the victim) brought her to his trial from jail, where she again insisted she was lying when she said he abused the children. The State used her police statements and medical evidence to convict him despite her insistent she had lied in accusing him.
Your prior record score is based upon all prior non-summary criminal convictions. It does not matter where these offenses occurred, as long as Oklahoma has a similar law to the one you violated somewhere else. For example if you had a DUI conviction in Texas over the past 10 years, your Oklahoma DUI would count as your second. Law enforcement has access to all of your prior convictions anywhere in the United States.
Most criminal attorneys charge a “flat fee,” as opposed to an hourly rate. The flat fee could be for the entire case from initial consultation until post-sentence motions, or it could just be for a “stage” of the criminal case, such as the preliminary hearing. A fee agreement for an appeal, if one is needed, will always be separate than the fee for all matters up to and including post-sentence motions. The fee depends upon the 1) seriousness of the offense, 2) the amount of work the lawyer will likely spend on the case, 3) how the case will be resolved (for example through trial or plea). For the client that means you know how much your case will cost and you can budget accordingly.
Attorneys are barred by ethical rules from accepting a criminal case on a contingency fee basis. In other words, a criminal defense lawyer cannot charge you only if you win at trial or receive a favorable plea agreement. This is in contrast to personal injury lawyers, who have to work almost exclusively on a contingency fee basis, given the nature of those types of cases.
The initial consultation is free. If you choose to hire HenryLaw you will then be asked to sign a fee agreement and make payment arrangements prior to the first court appearance.
Bond out if you can. In Oklahoma bondsman charge around 10% of the bond amount and you must sign or put up collateral to secure the entire amount of the bond. If you have property you can secure bond with your property. If you can make a bond (money to secure your release), then you will be released from jail, but only if you have no other holds. (A hold is a detainer placed on you by another governmental agency which requires you be held pending clearance of the hold. Example: If you had unpaid traffic tickets you could be held in jail until they were paid or you served them out with jail time.) If you cannot make a bond (or do not qualify for pretrial release), then you will remain in jail while your case is pending.
No, In many courts if you have been able to make a bond, then you will be expected to hire an attorney to represent you. However, in some courts if you can prove that you are an indigent (unable to afford to hire an attorney), then you may request that the court provide you with a court-appointed lawyer. The court itself must pay for the services of the court appointed lawyer. The cost of this representation may be passed on to you at a later time, in the form of court fees. A court appointed lawyer may be either a private lawyer who takes court appointments or may a public defender. In general if you remain in jail and fail to post bond you will be appointed a public defender for all felonies and special misdemeanors called “predicate.” These are misdemeanors that if guilty make the next same offense automatically a felony. In Oklahoma those would include DUI, Possession of Marijuana, and simple Domestic Assault and Battery.
If you are arrested and you are not a U.S. Citizen, in most cases the INS (Immigration and Naturalization Service) will place a hold on you. This hold will keep you in jail, whether or not you are able to make a bond. The way in which your criminal case is handled will directly affect your resident status. This should be one of the main issues you discuss with your attorney. If at all possible, you should seek the advice of an attorney who specializes in immigration issues.
Any time you are to appear in court you should dress as though you are going to a job interview. Men should wear pants and a shirt with a collar. A suit, jacket or tie is always appropriate. Women should wear a dress, skirt or pants that are not too tight, too short, or low cut. It is never proper to wear shorts, t-shirts or sandals. Excessive make-up or jewelry should not be worn. In the courtroom itself, it is never proper to wear a hat, read a newspaper, eat, or chew gum.
While it is important for a person charged with an offense to have family members and/or friends present for a trial or sentencing on a case, it is seldom, if ever, beneficial to have small children present. If there is a possibility that you may be arrested at the court or sentenced to jail time you should not bring children to the court unless you have someone to care for your child in the event you are placed in jail. The court may actually contact DHS to take the child into custody if a parent is going to jail.
Yes. Another version of this criminal fallacy is “they can’t prove I stole it because it’s my word against the store clerk.” Right it is just your word against the store clerk and in ninety nine times out of one hundred they will believe their word over yours. That’s especially true if you have had previous criminal convictions before. Understand most jurors have never been convicted of anything (felons are automatically excluded by law from jury service). In my last panel in Seminole Country of the 24 potential jurors 12 had never been drunk, never smoked, and never used an illegal drugs, and I believed each one of them. 20 of the 24 potential jurors had never spend a minute in any jail or prison. They will believe the store clerk over you every time. There are cases where both parties have problems in their past with criminal behaviors or truthfulness. These are the hardest for prosecutors to win both because the complaining witness does not show up or if they do their criminal past makes their credibility shaky at best. These cases very often settle.
Yes. Many cases involve only one person’s word against another.
Yes. There is a common misconception that a person can be charged with a crime only if there is hard, physical evidence, and not simply allegations by a complainant. However, if the police believe the complainant, they can charge a defendant, even in the absence of evidence. For some crimes, for example indecent exposure, there will rarely be any physical evidence. If the jury believes the testimony the jury could convict, despite the face there is no physical evidence.
That being said, it is much easier to defend a case where the only evidence is testimony .A skilled defense lawyer may be able to discredit the testimony or character of the witness. Without a good attorney, you could find yourself convicted based solely on the word of your accuser. Hire a lawyer.