Oklahoma Courts Step Into the 21st Century

Video Conferencing in the Courtroom

The Oklahoma Legislature has recently taken a big step, with a new statute that allows videoconferencing technology to be used in the Oklahoma District Courts for hearings up to, during, and after trial in both civil and criminal cases.  Prior to this, it was unlawful for videoconferencing to be used in the District Courts of Oklahoma.  There are several minimum requirements; here are a few:

• Everyone who is directly involved, i.e. the attorneys, witnesses, judge, defendant, court reporter, and interpreter, can see and be seen and hear and be heard.

•  Participants shall be able to see, hear, and communicate with each other simultaneously;

• Participants shall be able to see, hear, and otherwise observe any physical evidence or exhibit presented;

• Video and sound quality shall be adequate to allow participants to observe demeanor and nonverbal communications and to clearly hear what is taking place to the same extent as if they were present in the courtroom;

• The location from which the trial judge is presiding shall be accessible to the public to the same extent as the proceeding would be if not conducted by videoconference;

• When feasible, a party and the party's attorney should be allowed to communicate privately off the record by use of a private communication facility (cellphone, landline, facsimile, Skype, etc.) during the proceeding, or during a break. The court is not required to provide a private communication facility if none is available.

There are also some exceptions; here they are:

• Situations where its use might create undue prejudice;

• When a person is available, but simply does not wish to be in the courtroom;

• Convenience vs the Value of the Testimony;

• Whether its use would interfere with the full ability to cross-examine a witness;

• In a circumstance where the gravity of being in the actual courtroom will impress upon the witness the importance of telling the truth;

• Whether a physical liberty or other fundamental interest is at stake in the proceeding;

• Whether the judge is comfortable with his or her ability to effectively control what is happening at the remote location;

• Whether a distortion in the technology causes those present in the courtroom to reflect negatively upon the person at the remote location;

• Whether use of the videoconferencing technology will diminish the integrity and fairness of a proceeding in a particular instance;

• Whether the person proposed to appear by videoconferencing presents a significant security risk to transport and present personally in the courtroom;

• The necessity of waivers and stipulations between the parties regarding the use of videoconferencing during a proceeding;

• And anything else that the judge might think is relevant.    

The party that wishes to use videoconferencing technology for the purpose of witness testimony must submit a motion stating their intent at least thirty (30) days prior to the proceeding.  Any party that objects to this must submit their objection in writing within ten (10) days of the filing of the original notice.  

So, what are the advantages of using this new technology in the courtroom?  The cost benefit is particularly relevant to those needing an interpreter or court reporter where none is available to be physically present, and the time, effort, and finances that would be required to get someone to be physically present would be restrictive.  This is particularly true of poorly served and rural areas that lack the same resources as larger metropolitan areas.  

However, there is no rule stating that courts must employ this new technology, and since the initial cost to install the equipment and training would presumably be substantial, it is likely that the areas that are poorly served now, will not be able to afford the equipment that is necessary to meet the requirements set out in the statute.  Furthermore, the statute does not specify who is supposed to pay for the installation and maintenance of the equipment.  Is it the County Treasury?  Is it the State?  Is it the Court Fund?

So, when would the videoconferencing technology be most valuable? Obviously, when used for expert witness testimony.  The ability to bring in the testimony of a nationally, or even internationally, renowned expert without having to pay travel costs would be an enormous cost savings for either side of a litigation.  As mentioned above, the ability to bring in an interpreter for unique and specific languages and dialects, would also provide witnesses and defendants the ability to understand and be understood.  This is not just important, but a Constitutional right.

What about the risks?  Clearly, it is difficult to tell when someone is lying.  Most people find it difficult to tell when they are face to face with someone.  Seeing and hearing them over a video screen will only make that more difficult. Considering that a big part of a jury’s job is to determine the credibility and reliability of each witness, this knew technology leap could get in the way of justice.  The level of personal separation videoconferencing technology provides has the potential to reduce the impact and gravity of the proceedings, creating an insulation or barrier to the stress and impact of a tough and vigorous cross-examination, harming the truth-finding process of witness confrontation.  Furthermore, there are no security measures in place that would ensure that the remote location remains pristine and free from influence or bias that could taint witness testimony.  It is feasible that a person could stand out of view of the camera and coaches a witness without the court’s knowledge.

Technology has invaded every part of our lives.  It has increased the quantity of communication, but not necessarily the quality.  There are efficiencies that would be created for the court system, but for each benefit there comes a possible risk.  So, what stands in the way of this technology leap?  The greatest barrier to this technological leap may be the fact that it requires financial and procedural investment, and the legal world tends to resist investment and resists procedural change even more.

Author: Lauren N. Stanley

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The DA's office failed to prosecute the father, and laid all the blame on the mother. The lead investigator admitted that the investigation was influenced by the initial statements made by the parents, but the father then told the jury that he lied not once, not twice, but three times to police. Is this justice?

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Deferred Prosecution – It’s About Money

What is Deferred Prosecution?

Beginning in June of 2017, the Tulsa County DA began offering Deferred Prosecutions.  This is a contractual arrangement to not file charges on you even though you have been arrested. Simply put, if you will sign up for voluntary supervision, pay all of your fines and fees upfront, then they won’t even file charges against you.  Sounds like a dream come true, right?  Maybe not, keep reading.

Who is eligible?

This contractual arrangement is only available to people who have a clean record and no criminal history.  As you have read above, all the fines and fees must be paid in advance, so this will seriously limit the people that can take advantage of this program.

How much will it cost?

The supervision fee will be $240.  On top of that, you will have a fee of between $200 and $400 for each charge you were booked in on.  So, as an example, if you were arrested on Possession of Marijuana, No Driver’s License, and No Insurance; you would be looking at a total of  $1065.00 total up front before you can take advantage of this program.

What does the supervision look like?

Tulsa COURTS will supervise you, which is the same group that supervises people for Drug Court.  It will be for a minimum of 6 months, but could be 2 years.  You may have to do a Drug and Alcohol Assessment, Random Urinalysis Drug Testing, Restitution, Mental Health Evaluation, Community Service Hours, Stay Away Orders, GPS, or SCRAM Alcohol Monitoring.  Oh yeah, that is all at your cost.  Also, they can also come visit your home or place of employment.

What happens if I fail?

Even if you only have supervision for 6 months, if you run into trouble anytime within 2 years, you will not only have to deal with those charges, but the DA will file these old charges on you too.  They can also file the charges on you for any form of non-compliance.

Seems like a decent deal, what is the catch?

Your biggest concern is that you are waiving several of your Constitutional Rights!  First, you will have to sign an agreement that says that the State of Oklahoma has sufficient evidence to achieve a conviction.  Next you are waiving your rights to speedy prosecution and a speedy trial.  Also, you will be waiving the Statute of Limitations.  Finally, you will be waiving your rights to counsel.

Is there anything else I should know?

Yes.  You are also waiving your ability to challenge the lawfulness of your arrest.  You are also waiving your ability to challenge the search of your vehicle, home or person.

What should I do?

You have a right not to be singled out.  You have a right not to be harassed because of who you are or what neighborhood you come from.  You also have a right to your privacy.  Hire a qualified attorney that is not afraid to fight for your rights.  If the DA was going to give you the Deferred Prosecution then they most likely will still offer you Deferred Probation, which is practically the same thing without waiving all of your rights.

Why is the DA offering this?

It is about the money.  This method of handling cases will shift money from the Court Fund to the DA Fund.  This isn’t about helping you, but instead a way of funding the DA’s Office.

Robbery in Oklahoma

If you are accused of robbery, there could be very significant penalties at stake. While most theft crimes are considered property crimes, robbery is considered a violent crime against the person.  Depending on the type of robbery with which you are charged, you could be facing up to life in prison.

What is Robbery?

Someone who discovers their property missing may say they have been “robbed.”  This is actually larceny or burglary.  While larceny and burglary generally depend upon stealth, robbery is about the force or fear used to commit the crime.  Robbery is defined by Oklahoma law as “a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear” (21 O.S. § 791).  The state divides robbery into several classifications, including first degree, second degree, conjoint, and armed robbery.

First Degree Robbery

Defined in 21 O.S. § 797, first degree robbery occurs under one or more of four specific circumstances:

1.    inflicts serious bodily injury upon the person;

2.    threatens a person with immediate serious bodily injury;

3.    intentionally puts a person in fear of immediate serious bodily injury; or

4.    commits or threatens to commit a felony upon the person.

First degree robbery is a felony punishable by a minimum of 10 years in prison. It is also an “85 percent crime,” under O.S. 21 § 13.1, a person convicted of this crime must to serve a minimum of 85 percent of the sentence before the possibility of parole.  With that said, there is case law that brings the minimum down to 5 years, but judicial notice should be invoked.

Second Degree Robbery

Second degree robbery does not carry the same requirement that the force results in serious bodily injury or that the fear is the intentional threat of serious bodily injury.  Second degree robbery is a lesser offense than first degree robbery, and it is not an “85 percent crime”.  Robbery in the second degree brings a possible sentence of up to 10 years in prison.

Conjoint Robbery

Conjoint robbery, or robbery committed by two or more people conspiring or acting together to accomplish the robbery is a serious felony where each person involved faces 5 to 50 years in prison.  Like first degree robbery, conjoint robbery is an “85 percent crime”.

Armed Robbery

Robbery or attempted robbery with a dangerous weapon or imitation firearm (21 O.S. § 801) carries a minimum sentence of 5 years in prison.  It is important to note that this law also includes failed attempts.  It does not matter if the gun was not loaded, or even if the “firearm” used was a fake.  Because the motive behind the use of an unloaded or imitation gun is still “force or fear,” it is considered armed robbery even with a toy gun.  Robbery or attempted robbery with a dangerous weapon or imitation firearm is an “85 percent crime”.  

Robbery is a Serious Felony

Robbery charges are very serious and the DA’s office prosecutes these cases aggressively.  You or your loved one could be facing decades in prison, mandatory minimum sentencing, and even registration with law enforcement for placement on the Oklahoma Violent Offender Registry.  Call us today at 918-884-7791 to discuss how we can defend you or your loved one from a Robbery charge.

The 14th Amendment Protects Illegal Immigrants

With the Presidential primaries beginning, one of the hot topics is whether  “immigrants without papers” have the protection of the U.S. Constitution and the Bill of Rights.  The 14th Amendment and the U.S. Supreme Court say YES!:

The 14th Amendment, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The key word in this Amendment is the word “person”.  There it is as clear as day right after the term citizens.  This leaves little doubt that the Amendment was clearly meant to include every person living within the jurisdiction.  That means everyone, including those without papers, and the U.S. Supreme Court seems to agree.  In Zadvydas v. Davis (2001) the U.S. Supreme Court said that "due process" of the 14th Amendment applies to all aliens in the United States whose presence maybe or is "unlawful, involuntary or transitory."  Twenty years before Zadvydas, the Supreme Court ruled in Plyler v. Doe (1982) that Texas could not enforce a state law that prohibited children without papers from attending grade schools.  Specifically they said, “no state shall 'deny to any person within its jurisdiction the equal protection of the laws.' Whatever his status under immigration laws, an alien is a 'person' in any ordinary sense of the term ... the undocumented status of these children does not establish a sufficient rational basis for denying benefits that the state affords other residents.”  In Almeida-Sanchez v. United States (1973) they concluded that all criminal charge-related elements of the Constitution's amendments (the First, Fourth, Fifth, Sixth and the 14th) such as search and seizure, self-incrimination, trial by jury and due process, protect non-citizens, legally or illegally present.

Even as far back as the late 1800’s the U.S. Supreme Court was clear about the rights of immigrants without papers.  In Yick Wo v. Hopkins (1886), the court ruled that: States cannot deny equal justice is still under the Constitution.   And, in Wong Win v. United States (1896), the court ruled that all persons within the territory of the United States are entitled to the protection by the 5th and 6th Amendments, even aliens.

In summary, immigrants without papers have the full protection of due process under the U.S. Constitution by way of the word "persons" in the 14th Amendment.

The Police Can Lie to You

The law allows a police officer to use deception in an investigation.  This means that during an interview by police, they can make false claims about what witnesses have seen or evidence they have recovered.  They can say just about anything they want in order to get a confession as long as the deception does not result in what would be considered coercion sufficient to make someone confess to a crime they did not commit.  Let’s be clear, this means that they can get away with almost any lie just short of telling you a loved one has died.

For instance, a detective might tell a burglary suspect that they have a witness who saw them enter a house, or that they found the suspects fingerprints inside the house.  If the suspect knows he had never been in the house, then you might think there is little chance of getting a confession.  But, recent studies have shown that suspects often confess to crimes they did not commit under the false impression that cooperating, even by admitting to something they did not do, will benefit them in the long-term, only to realize that they have created far greater problems for themselves.

Here is another example of how this might play out: A detective might tell a woman that her children will be taken from her and placed into foster care if she does not confess to a crime.  The threat of losing her children is sufficient to make some people admit to doing something they didn't do.  This borders on coercion, but once you have confessed it is hard to put that genie back in the bottle, because the police will begin to look through your life with a fine tooth comb trying to find anything to corroborate the confession they believe they just got.  Also, the confession will be used against her in any hearings to take away her children.

Should police be allowed to blatantly lie to suspects?  On the one hand, it is a very persuasive and efficient method to motivate a guilty person into confessing.  It would also seem that an innocent person would see through these lies and quit talking to the police immediately.  On the other hand, people who have something to fear can be intimidated and potentially pressured into confessing to something they did not do.  This is especially true of non-residents without papers, people with difficulty speaking English, and those who have little or no education.

What should you do?  If the police are interviewing you, they probably are looking at you as a suspect.  Politely tell them you have nothing to say, and that you want an attorney.

Understanding Deferred Probation

If you are charged with a crime, there will be one of four results when you go to court.  Dismissal is the best of all results because your charges have been dropped and you are free.  Jail or Prison time is obviously the worst result because it means you will be incarcerated for some period of time.  In between these two extremes are two forms of probation: Suspended Sentence and Deferred Sentence.  Let’s focus today on these two forms of probation.

If it is your first offense, your attorney may be able to get you deferred sentencing and probation instead of jail time.  This alternative sentencing solution is the best possible outcome other than an outright dismissal.  A deferred sentence allows you to have your court record sealed after successfully completing all of the court-ordered probation.  This means having all of your fines and DA supervision paid, as well as, completing any special orders like Drug and Alcohol Assessment, DUI School, or Batters Intervention Program, and obviously, you must not break any federal, state, municipal, or tribal laws.

Having your record expunged is a tremendous advantage since a criminal record can limit your job and licensure opportunities.  So how does this work?  It starts with you pleading guilty to the criminal charge.  However, instead of accepting the plea and rendering judgment, the judge delays judgment and sentencing, giving the defendant an opportunity to complete probation instead.

For example, a first DUI offender may plead guilty to DUI, but instead of convicting the defendant and ordering him or her to jail, the judge would defer sentencing and order the defendant to drug and alcohol treatment, community service, participating in a victim’s impact panel, and similar terms of probation.

If you were to violate probation or commit other crimes, the prosecutor will likely file a Motion to Accelerate sentencing. The judge may then accept the guilty plea and order you to serve a jail or prison sentence.  If the you successfully completes your probation, the court records are updated. Your guilty plea is changed to reflect a plea of “not guilty,” and the case is dismissed. There is no criminal conviction, and through expungement, your name is stricken from court records.

A suspended sentence is different from a deferred sentence. While both types of sentencing allow you to serve probation in lieu of all or part of the jail or prison sentence, a suspended sentence results in criminal conviction, which will stay on your record.  It isn’t jail or prison, but a suspended sentence pales in comparison to the benefits of a deferred sentence.