Standing Up For Your Rights

Photo of attorney Stephen Cale

Defense Process

The following is a summary of how a case filed in Oklahoma state court generally progresses.  Specific procedures may vary slightly by local judges.

Initial Arraignment

This is the first court appearance. The judge will tell the defendant what the charge is, the maximum penalty if convicted, and rights to a jury or bench trial, appointed attorney, presumption of innocence, etc. Further pre-trial procedures are determined by whether the defendant is charged with a felony or misdemeanor.


At a misdemeanor arraignment, the defendant will plead not guilty, no contest, or guilty. If the defendant pleads guilty or no contest, the judge may sentence the defendant on the spot or may reschedule the case for a sentencing date. If the defendant pleads not guilty, the case will be scheduled for a pretrial conference.

Pretrial Conference – At this stage the prosecutor often has a plea offer.  The prosecutor and defense attorney will meet to determine whether the case will go to trial or be resolved with a plea.

Pretrial Proceedings – Many other events can occur prior to trial. Depending on the nature of the case, there may be pre-trial hearings on Constitutional issues (confessions, searches, identification, defective charge). The issues are presented to the Court through written “motions” (For example, Motion to Suppress Evidence). The judge must determine whether evidence will be admitted or suppressed at the defendant’s trial, whether there is some legal reason why the defendant should not be tried and the case dismissed, or decide other ground rules for trial.


Preliminary Hearing – This is a contested hearing, sometimes called a “probable cause hearing.” The prosecutor presents witnesses to convince the judge that there is at least probable cause to believe that the charged crime was committed and that the defendant committed the crime. Because the burden of proof is much less than at a trial, the prosecutor generally does not call all potential witnesses to testify at this hearing. Generally, the victim and some eye witnesses plus some of the police witnesses testify. The defendant, through his attorney, can cross-examine the witnesses and present his own evidence (including witnesses). If probable cause is established, the defendant is “bound over” for trial. If the judge decides that there is not probable cause that the defendant committed the charged crime,, the judge can bind the case over on different charges, can reduce the charge to a misdemeanor, or can dismiss charges. A defendant can give up his right to a preliminary hearing.

Pretrial Proceedings – The Court Judge may be called upon to resolve various pre-trial issues, some of which determine whether the case will continue to a trial, be resolved with a plea, or be dismissed; whether evidence will be admissible at trial; etc.

Trial (Jury or Bench/Judge)

A trial is an adversary proceeding in which the prosecutor must present evidence to prove the defendant’s guilt beyond a reasonable doubt. The defendant is not required to prove his or her innocence or to present any evidence, but may challenge the accuracy of the prosecutor’s evidence.

Both the defendant and the prosecutor have the right to a trial by a jury. Sometimes, both sides agree to let a judge listen to the evidence and decide the case without a jury; this is called a “bench trial”. In a jury trial, the jury is the “trier of fact”; in a bench trial, the judge is. After the evidence is presented, the judge or a jury will determine whether the evidence proved that the defendant committed the crime.

Here is a general outline of the steps in a jury trial:

  1. Residents of the local county are randomly selected from a list of licensed drivers, and are summoned to the Court as potential jurors;
  2. A random draw selects people from that group as potential jurors
  3. Voir Dire: This is the jury selection process. The judge, prosecutor and defense attorney question potential  jurors about their backgrounds and beliefs;
  4. The attorneys are permitted a limited number of “peremptory” challenges to various jurors (or an unlimited number of challenges for good cause);
  5. After acceptable jurors remain, the Judge administers an oath to the jury and reads basic instructions about the trial process, etc.;
  6. The prosecutor gives an opening statement to outline the State’’s case and evidence to the jury;
  7. The defense may give a similar opening statement, or wait until later in the trial;
  8. The prosecutor calls witnesses, which the defense may cross examine;
  9. The prosecutor concludes its case;
  10. The defense may call witnesses, if it wants, and the prosecutor may cross-examine them;
  11. The defense rests (closes its case)
  12. The prosecutor may present “rebuttal” witnesses/evidence to challenge evidence presented by the defendant;
  13. The prosecutor rests;
  14. Occasionally, the trial judge will let the defense present “sur-rebuttal” witnesses to respond to the prosecutor’s rebuttal witnesses’ testimony;
  15. The prosecutor presents a closing summary to the jury;
  16. The defense attorney presents a closing summary to the jury;
  17. The Prosecutor may present a rebuttal argument to the jury to respond to the defendant’s attorney’s closing summary;
  18. The judge gives the jury detailed legal instructions about the charged crimes, the deliberation process, etc.;
  19. The jury deliberates and returns a verdict. The verdict must be unanimous
  20. If the jury returns a not guilty verdict, the defendant is free unless there are other warrants or “holds.” If the jury returns a guilty verdict, officers will take the defendant into custody. The court will set a formal sentencing date.

Pre-Sentence Investigation and Report

The court’s probation department prepares a report for the judge summarizing the crime, and the defendant’s personal and criminal backgrounds. Generally, the victim is contacted for a recommendation of sentence. The probation officer concludes the report with a recommended sentence.


Sentencing in Oklahoma varies with the crime and can be the most confusing part of the criminal process. Most often, sentences are at the judge’s discretion. The judge will consider the information in the pre-sentence report (subject to factual corrections by the parties), additional evidence offered by the parties, comments by the crime victim, and other information relevant to the judge’s sentencing decision. The judge may consider different alternatives, such as a fine, probation, community service, a sentence to jail or prison, or a combination. The judge must also order the defendant to make restitution to any victims who have suffered financial harm.