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law Tag

20 December
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Taking the Fifth

Posted by Clint
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Taking the Fifth

The Fifth Amendment to the Constitution states plainly that no one “shall be compelled in any criminal case to be a witness against himself”. Many people call this refusal to testify “taking the Fifth” or “pleading the Fifth”. It is also referred to as the right against self-incrimination. Criminal defendants may take the Fifth in a criminal trial. Rather than testifying, the defendant must indicate his intention not to testify to avoid incriminating himself. His attorney, the prosecutor, and the judge cannot force him to testify. However, if the defendant takes the stand and answers a few questions, then tries to...

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18 December
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Can I Withdraw My Guilty Plea in My DUI Case?

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Can I Withdraw My Guilty Plea in My DUI Case

You pled guilty to a DUI charge, but now you regret the plea and want to keep fighting. Is it too late to withdraw your plea? If the judge has not accepted your plea or you have not been sentenced, most likely you can still withdraw it easily. If you have been sentenced, you will have a difficult time withdrawing it. Judge has not accepted the plea, or you have not been sentenced If the judge has not accepted your guilty plea, you may withdraw your plea for any reason or no reason. If you have not been sentenced, you may withdraw...

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15 December
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Your Right to Confront Witnesses in Court

Posted by Clint
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Your Right to Confront Witnesses in Court

When facing criminal charges, you have the right to confront the witnesses testifying against you. The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him”. In practice, this means that tape recordings and written statements are no substitute for questioning witnesses in court. The pivotal case of Crawford v. Washington, 541 U.S. 36 (2004), illustrates why the Confrontation Clause in the Sixth Amendment is so important for criminal defendants. In the case, a criminal defendant’s wife gave a statement to the police that was tape-recorded. The wife refused...

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13 December
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The Duty of Prosecutors to Disclose Exculpatory Evidence

Posted by Clint
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The Duty of Prosecutors to Disclose Exculpatory Evidence

Prosecutors must disclose all exculpatory evidence to defense attorneys in Oklahoma. “Exculpatory” evidence tends to show that the defendant is not guilty or shows that the crime committed is a lesser offense (e.g. manslaughter instead of murder). Both state rules of professional responsibility and a number of Supreme Court cases explain this mandate. Oklahoma Code of Professional Responsibility, Rule 3.8(d) states: “A prosecutor shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense”. The Code of Professional Responsibility must be followed by...

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11 December
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Use of Police Dogs at Traffic Stops

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Use of Police Dogs at Traffic Stops

During traffic stops, police sometimes use K-9 dogs to sniff for drugs or other illegal substances. Two key Supreme Court cases have evaluated how far police may go in their use of dogs at roadside stops. In the first case, Illinois v. Caballes, 543 U.S. 405 (2005), the court considered whether using a drug dog at the scene of a roadside stop was an unreasonable search. The drug dog alerted at the scene, leading to the defendant’s arrest for marijuana trafficking. While the Illinois Supreme Court said that the search was unreasonable, the Supreme Court disagreed, determining that police did not...

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08 December
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Excluding Illegally Seized Evidence in Court

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Excluding Illegally Seized Evidence in Court

Having illegally seized evidence excluded from consideration in court is the most important part of some criminal cases. Exclusion of this evidence goes to the heart of your Fourth Amendment right protecting you against unlawful search and seizure. The exclusionary rule prevents the prosecutors from using illegally obtained evidence against you in court, even if that evidence is incriminating. All evidence used must be relevant, or directly related to the charges against you, and competent, or collected and handled legally. When evidence is not either relevant, competent, or both, it may be excluded. There must be a valid search warrant or...

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06 December
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I Lied to My Lawyer – Now What?

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I Lied to My Lawyer – Now What?

So you lied to your lawyer. You told your lawyer that you did not stop at a bar on your way home from work, or you forgot to mention that you finished a bottle of whiskey before leaving the house. What should you do? Lawyers wish that clients would own up to their lies immediately – or at least before they step into a courtroom. The problem with lies is that they lead to more lies. Lies to your lawyer do not allow the lawyer to prepare adequately for defending you and limit your chances of success. Imagine a DUI client who...

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04 December
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Lying Under Oath and DUI Defendants

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Lying Under Oath and DUI Defendants

Perjury, or lying under oath, is a crime in Oklahoma and the rest of the United States. The strongest defense to perjury is that the statement made was actually the truth. Oklahoma defines perjury as follows: “Whoever, in a trial, hearing, investigation, deposition, certification or declaration, in which the making or subscribing of a statement is required or authorized by law, makes or subscribes a statement under oath, affirmation or other legally binding assertion that the statement is true, when in fact the witness or declarant does not believe that the statement is true or knows that it is not true...

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01 December
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Diversion Programs – Do They Work?

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Diversion Programs – Do They Work?

A shocking recent article questions whether the diversionary rehab programs judges use for defendants in Oklahoma really work. The article, titled “They thought they were going to rehab. They ended up in chicken plants”, describes courts’ routine practice of sending defendants convicted of minor crimes or serving suspended sentences to Christian Alcoholics & Addicts in Recovery (CAAIR) and other rehabilitation programs. Rather than focusing on addiction treatment, it says that CAAIR sends defendants to work for free doing hard labor at a poultry plant. When they get sick or slow down, they are sent to prison. People convicted of crimes may...

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29 November
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Should I Resist an Illegal Traffic Stop?

Posted by Clint
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Should I Resist an Illegal Traffic Stop?

If you have ever been pulled over by a police officer, you may have wondered whether you should resist a truly illegal traffic stop. An Oklahoma appeals court found that drivers must submit to even obviously bogus stops by the police. In State v. Nelson, 2015 OK CR 10 (2015), the driver made a left-hand turn into a parking lot. The road was deserted and there were no cars in sight, except the police officer’s hidden patrol car. The officer pulled over the driver for failure to signal. He tried to write the driver a ticket, and the driver started walking...

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