Oklahoma Criminal Law
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Throughout the criminal appellate system there are various “standards of review”. These “standards of review” are actually nothing more than presumptions and burdens of proof. Just like at a trial a defendant has the presumption of innocence and to overcome that presumption of innocence the state has the burden of proving every element of every offense beyond a reasonable doubt, on appeal there are differing presumptions and burdens of proof. Sometimes the law will actually refer to the standards of review as presumptions and burdens of proof. For example in the Federal Habeas statute for state prisoners seeking relief in federal court the statute says:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Title 28 U.S.C. Section 2254 (e)(1).
Depending on the situation the presumption will be different and the burden of proof to overcome that presumption will be different. But once a defendant is convicted, the presumption of innocence is replaced with presumptions that the jury and the trial judge made the right decisions. After conviction the presumption of innocence gone, and a defendant bears the burden of proof, the burden of proving that the process by which the jury reached its decision was seriously flawed. If a defendant only establishes that the process was flawed, but fails to establish that the error was serious, that issue will not survive the harmless error analysis and the defendant will be denied relief.
Understanding the presumptions and burdens of proof is key to understanding the appellate process. These presumptions and burdens of proof are sometimes referred to in opinions as a “standard of review” and in some opinions the Courts will just say something like “we review”. The presumptions and burdens of proof change for different types of issues, when the issue was raised and are even different depending upon the Court the issue is being argued in. You must understand the standard of review that applies to the particular issue in order to understand what the Court will presume and the burden that must be overcome to get relief.
Standards of review are so important that sometimes you will see judges arguing about them in the majority opinion and the dissenting opinion. For an example of this see Seabolt v. State, 2006 OK CR 50, 152 P.3d 235 (Okla.Crim. 2006) see also Rea v State, 2001 OK CR 28, 34 P.3d 148 (Okla.Crim. 2001). The reasons that judges are arguing over the proper standard of review to apply to a particular case is because the judges know that often times it is the standard of review that ultimately determines whether or not the appeal will be granted or denied.
The standard of review is the presumption the appellate court will impose in determining whether to reverse a lower court’s decision combined with the burden of proof associated with that presumption. For example, if a trial judge made a ruling concerning the admission of evidence at the trial, the legal test for the admission of that evidence at trial would be whether or not the evidence was relevant or not or whether or not the probative value of the evidence was substantially outweighed by the prejudicial value of the evidence. However, on appeal the standard of review to determine error at the trial court level on this type of issue will typically be an abuse of discretion standard, which means the appellate court will not reverse the conviction unless the judge’s decision was an unreasonable or arbitrary action made without proper consideration of the relevant facts and law.
Although there are many different standards of review and each issue must be researched to determine the proper standard of review for that court and the procedural stage the appeal is at, listed below are some of the more common standards of review to help you understand this concept.
Under de novo review, the appellate court gives no deference to the trial court’s ruling and considers the issue without any regard for the trial court’s decision. With de novo review the appellate court’s consider below as if it were considering the issue for the first time. De novo review is the standard that is most favorable to a defendant because the appellate court is not deferring to the lower court’s decision because with this standard of review the appellate court simply applies the legal test used to determine the issue. With a de novo review there is no presumption the trial cour made the correct decision.
Questions of law are generally reviewed de novo, because the courts of appeals are concerned with defining the law, they generally do not give deference to the trial court’s assessment of purely legal questions. For example, questions interpreting constitutional law or the meaning of specific terms in a statute are questions of law.
It is important for trial lawyers to understand this and keep this in mind when arguing legal issues during trial. If a lawyer believes the judge is misinterpreting the law, that needs to be made clear on the record.
Where limitations on cross-examination directly implicate a defendant’s Sixth Amendment right of confrontation, the Oklahoma Court of Criminal Appeals will review the limitation using the de novo review standard. (See Scott v. State, 1995 OK CR 14, paragraphs 21-27, 891 P.2d at 1292-93).
On appeal a lawyer should try to characterize the lower court ruling as a mistake of law, if there is an opportunity to do so, because if the appellate court agrees that the issue involves a question of law, then there is no deference to the lower court’s rulings and they can then start with a clean slate.
With the abuse of discretion standard the appellate court decides if the lower opinion is “unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts.” (Neloms v. State, 2012 OK CR 7, paragraph 35, 274 P.3d 161, 170.)
At numerous times during a criminal case, the trial judge must make a number of decisions that require the exercise of discretion. In making these rulings, the judge must weigh many different factors, often it is not clear how heavily any of these factors should be weighed in the decision. In reviewing the trial court’s discretionary decisions, the courts of appeals will give great deference to the decisions reached by the trial judge, because the appellate judges were not present at trial and are not in as good a position as the trial judge to evaluate the relevant factors.Appellate courts generally uphold discretionary rulings by trial courts.
However, it is different if a defendant can argue on appeal that the trial judge committed legal error in exercising their discretion. If the trial judge fails to consider the various legal options or fails to consider the relevant legal factors or considers irrelevant factors, the appellate court is more likely to reverse the decision.
A trial court’s failure to apply the law correctly in making a ruling is always an abuse of discretion. (see Koon v. United States, 518 U.S. 81, 100 (1996); A district court by definition abuses its discretion when it makes an error of law.).
The extent of cross-examination rests in the discretion of the trial court and reversal is only warranted where there is an abuse of discretion resulting in prejudice to the defendant, this is true as long as the restrictions on cross examination do not implicate the defendants Sixth Amendment right to confront the witnesses against them. (See Parker v. State, 1996 OK CR 19, ¶ 13, 917 P.2d 980, 984, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997).
The decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion. (See Allen v. State, 862 P.2d 487, 491 (Okl.Cr.1993), cert. denied, 511 U.S. 1075, 114 S.Ct. 1657, 128 L.Ed.2d 375 (1994) and Black v. State, 2001 OK CR 5, ¶ 25, 21 P.3d 1047, 1060.) The manner and extent of a trial court’s voir dire is reviewed by the Oklahoma Court of Criminal Appeals under an abuse of discretion standard and the Court will not reverse unless an abuse of discretion is shown. (See Littlejohn v. State, 2004 OK CR 6, ¶ 49, 85 P.3d 287, 301.)
The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Cipriano v. State, 2001 OK CR 25, 714, 32 P.3d 869, 873.
A trial judge’s factual findings are given great deference because the trial judge has presided over the trial, heard the testimony, and has the best understanding of the evidence. This is also true when a trial judge considers evidence regarding pre-trial motions, such as a motion to suppress evidence. Under the clearly erroneous standard, it is not enough to show that the factual decision was questionable. It is very difficult to overturn a trial court’s factual determination, so if your appeal rests solely on a challenge to a finding of fact, your likelihood of success will be low, unless the determination was really a bad decision. “We defer to the trial court's findings of fact unless they are clearly erroneous...” Norman v. State 2023 OK CR 4, pargraph 7.
In criminal cases, the due process clauses of the Fifth and Fourteenth Amendments require that criminal convictions be based on sufficient evidence presented at trial. Therefore an appellate court must reverse a conviction if, after considering the evidence in the light most favorable to the state, it finds no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
In determining whether or not there was sufficient evidence to convict a defendant at trial, Oklahoma’s Court of Criminal Appeals applies the standard of review set forth in Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204, “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.” A reviewing court must accept all reasons, inferences, and credibility choices that tend to support the verdict. See Washington v. State, 1986 OK CR 176, ¶ 8, 729 P.2d 509, 510.
A sentence within the statutory range will not be modified on appeal by the Oklahoma Court of Criminal Appeals unless, considering all the facts and circumstances, it shocks the conscience. Maxwell v. State, 1989 OK CR 22, ¶ 12, 775 P.2d 818, 820. To “shock the conscience” has been defined to mean manifestly and grossly unjust.
Plain error is another very important concept to understand on appeal. In Warner v State, 2006 OK CR 40, 144 P.3d 838 (Okla.Crim. 2006), the Oklahoma Court of Criminal Appeals explained the plain error doctrine:
As a result of the recognition of our prior jurisprudence, we hold and restate the following: (1) Failure to object with specificity to errors alleged to have occurred at trial, thus giving the trial court an opportunity to cure the error during the course of trial, waives that error for appellate review unless the error constitutes fundamental error, i.e. plain error; (2) The concept of fundamental error is now codified in the Oklahoma Evidence Code 12 O.S. 1981 § 2104 [12-2104], and shall hereafter be referred to as plain error; (3) Plain error only allows review of an error on appeal which was not preserved through a timely objection at the trial court, but does not automatically constitute reversible error; (4) Plain error, which allows review on appeal in the first instance, will be reviewed by the appellate court in the same manner as error which was preserved by timely objection during the trial; (5) Error preserved by timely objection during the course of trial, together with plain error reviewed for the first time on appeal, will be analyzed to determine if the error requires reversal or whether the error was harmless.
It trying to understand the “plain error” standard may also be helpful to read the decisions of Simpson v State, 1994 OK CR 40, 876 P.2d 690 (Okla.Crim. 1994), Bland v. State, 2000 OK CR 11, ¶ 49, 4 P.3d 702, 718, cert. denied, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001), Romano v. State, 1995 OK CR 74, ¶ 18, 909 P.2d 92, 109, cert denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996) and to read Title 12 O.S. Section 2104, which is referred to in the Warner case cited above.
Claims of ineffective assistance of counsel are most frequently considered for the first time on appeal and have generally not been ruled upon by the trial court, so defendants do not have to overcome presumptions concerning the trial court’s factual rulings. The reason this is true is because it is typically raised against the trial attorney by the appellate attorney and not by the trial attorney against themselves. If the issue was raised at the trial level, for some reason, I would expect the trial court’s factual findings to be judged by the clearly erroneous standard and the legal conclusions based upon those findings to be judged by the de novo review standard.
However, ineffective assistance of counsel claims have their own test that has presumptions that weigh against a defendant already built into the standard. With the most common type of ineffective assistance of counsel claims, also referred to as “actual ineffectiveness”, with this test the courts do not defer the findings of a lower court, but to the decisions of the attorney. (Courts "indulge a strong presumption that counsel's conduct" was constitutionally adequate and that "judicial scrutiny of counsel's performance must be highly deferential.”)
The most often quoted case on ineffective assistance (actual ineffectiveness) of counsel is the United States Supreme Court case of Strickland v. Washington, 466 U.S. 668 (1984), if you believe that your case may involve ineffective assistance of counsel I would encourage you to read every United States Supreme Court case that cites Strickland v. Washington. In Jones v. State, 2009 OK CR 1, 201 P.3d 869 (Okla.Crim. 2009) the Oklahoma Court of Criminal Appeals has a good discussion of ineffective assistance of counsel claims:
As for counsel’s conduct, we review claims of ineffective assistance under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Warner v. State, 2006 OK CR 40, ¶¶ 198-199, 144 P.3d 838, 891-892. Strickland sets forth the two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. Id. First, the defendant must show that counsel’s performance was deficient, and second, he must show the deficient performance prejudiced the defense. Id. Unless the defendant makes both showings, "it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Id. quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.There are also two other types of ineffective assistance of counsel claims that are much less frequent, but you should be aware of them. These types of ineffective assistance of counsel claims are 1. Constructive Ineffectiveness and 2. Conflict of Interest.
Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., citing Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 700.