Oklahoma Bar Journal icon

Bar Journal 2013

Complete Bar Journal 


Features

An Overview of Recent Changes in the Miranda Doctrine and the Rights to Counsel and Silence

The Fifth Amendment’s protections against compelled self-incrimination are nearly as old as the United States Constitution itself, but it was arguably the United States Supreme Court’s decision in Miranda v. Arizona which gave full force to those protections. Now, almost 50 years after that landmark ruling, a new decision by the court, Texas v. Salinas, allows prosecutors in some instances to comment to the jury on the defendant’s refusal to answer questions from investigators when that person was neither in custody nor given the Miranda warnings. This article will examine Salinas and several other right to counsel or right to silence decisions handed down by the Supreme Court in the past few years. Collectively, these cases have quietly brought about significant changes in a criminal suspect’s rights to counsel and silence in a very short period of time.

The Violence Against Women Reauthorization Act of 2013 and Tribal Criminal Jurisdiction Over Non-Indians

On March 7, 2013, President Barack Obama signed into law the reauthorization of the Violence Against Women Act1  (VAWA) which is a federal law enacted to work toward ending violence against women and to address certain systematic failures in the law and in practice that perpetuate the cycle of violence. There are many tools contained within VAWA to carry out this important objective to address domestic violence throughout the land.

Expanded Opportunities for Expungement of Criminal Records

In his article regarding Oklahoma’s expungement law, criminal law practitioner Allen Smallwood remarked, “[t]hough imperfect, Oklahoma’s expungement statutes offer at least a chance for an individual to clear his or her record. While far from being flawless, the Nov. 1, 2012, amendments to Okla. Stat. tit. 22 §18,2 have certainly brought the expungement law closer to “perfection.”

Document Discovery in a State Criminal Case

Procedures for criminal discovery in Oklahoma courts have undergone radical changes since 1990, but the basic tool for collecting documentary evidence, a subpoena duces tecum, has remained unchanged since statehood. This article examines the boundaries of document discovery in criminal prosecutions under the Oklahoma Criminal Discovery Code, with particular emphasis on the differences between procedures in civil and criminal cases.

Baxter a ‘Warranted’ New Frontier

The Fourth Amendment to the United States Constitution is a cornerstone of liberty and jurisprudence in America; however this famous phrase fell on deaf ears of the United States Supreme Court for 100 years. Until 1914, American courts followed the precepts of English common law that the process of obtaining evidence had nothing to do with its admissibility. The United States Supreme Court held evidence obtained illegally was admissible in several cases prior to 1914. Nonetheless, in a remarkable deviation from precedent the court held in Weeks v. United States, 232 U.S. 383 (1914) that the Fourth Amendment provides protection against unreasonable searches and seizures in federal court and that evidence seized without a valid warrant is inadmissible.

Juvenile Justice: Life and Death

n less than a decade the United States Supreme Court has decided three significant cases which have radically altered punishment and sentencing for juveniles. These cases address 1) the death penalty for juvenile homicide offenders, 2) life without parole for juvenile non-homicide offenders and 3) mandatory life without parole for juvenile homicide offenders.

DUI Law: A Trial of Tests

There was a time when a DUI case was simply described with words like “odor,” “slurred speech,” “red, watery eyes” and “unsteady on his feet.” Walk into a contested DUI case today and you are likely to hear words like “assays,” “clues,” “metabolites,” “GERD,” “partition ratio,” “gas chromatograph mass spectrometer,” “head space,” “anticoagulants,” “ASCLAD” and “ILMO.” Thanks to modern technology and the desire for stronger evidence, the “simple DUI case” has become quite complex. No longer is the opinion of the officer enough as jurors expect to see more conclusive evidence. The purpose of this article is to highlight the main “tests” now used in DUI cases and some of the current issues involved.

Human Trafficking: Beyond Pretty Woman and Huggy Bear

The Runaway - She was nine years old when she ran away for good. Just like other young girls who are “recruited” at malls, nightclubs, schools, group homes, homeless shelters, foster homes, bus stops, parks and even hallways of court buildings, she was 11 when she was first “turned out” to her first “John” by a boyfriend and pimp. She learned to respect the “bottom bitch,” there cannot be any “shame in your game,” and that the “game” is “sold and not told.” She went to parties. She went on the road.

Thoughts on the Plea Bargain Process in Oklahoma: Ethics, Philosophy and Strategic Approaches

The Oklahoma Court of Criminal Appeals decision in Malone v. State hugely impacts criminal justice in Oklahoma. In this 3-2 decision, the court withdrew an earlier opinion to the contrary in the same case and held that there is no right for a defendant to present mitigating evidence in a jury trial unless it is a capital trial, though the non-capital defendant may do so in a bench trial. However, the prosecution may of course present evidence of prior convictions to the jury, as well as prior uncharged acts necessary to maintain its burden of proof.

Plus

Oklahoma Attorneys Answer the Call of Storm Victims

Legal issues resulting from the May storms kept the Oklahoma Bar Association’s free legal advice hotline ringing, and OBA volunteer attorneys answered the call. Over the course of June and July, demand for the hotline and service has tapered off, leading to the service being concluded on Aug. 1, 2013.

Argus Hamilton to Perform at LHL Cornerstone Banquet II

Once again, the OBA Lawyers Helping Lawyers (LHL) Assistance Program and the OBA Work/Life Balance Committee will join forces, presenting the Second Annual Cornerstone Banquet and Auction on Tuesday, Sept. 10. Oklahoma’s own Argus Hamilton will perform at the event for an evening of “all laughs and no liquor.”

Oklahoma Attorneys Selected for Leadership Academy

The Oklahoma Bar Association announces the 25 participants of its fourth annual OBA Leadership Academy class selected from applicants throughout the state.

Webcast encores are available for OBA/CLE seminars. View the catalog and sign up today.