Oklahoma Criminal Law
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The goal of every criminal appeal is the same, to persuade the Oklahoma Court of Criminal Appeals to find that there was “Reversible Error” in the trial court. To persuade the Court of Criminal Appeals that there was reversible error an appellate lawyer must convince the Court of three (3) things.
The same issue will have different presumptions and different burdens (read about Standards of Review) at various stages of the criminal justice system. When appealing a criminal conviction it is not enough to argue there was an error in the trial court. You must also persuade the appellate court that the legal requirements for the appropriate “standard of review” for that error has been satisfied. The final step in persuading the appellate court that reversible error exist in a particular case is overcoming the harmless error doctrine.
In our example we will say the defendant is on trial for a murder of his child under Oklahoma’s child abuse murder statute. (21 O.S. Section 701.7 (c)). Let’s say the state seeks to introduce evidence that the DHS worker concluded that abuse had occurred and the defendant’s attorney objects to the introduction of this evidence.
This evidence should not be admissible in a criminal trial, because it invades the province of the jury (meaning its up to the jury to decide whether abuse occurred) and it creates a substantial risk of unfair prejudice and confusion of the issues because the DHS workers uses a lower standard in reaching her conclusions than the jury does and we do not know whether or not she reached her conclusion based upon admissible or even reliable evidence.
Whether or not this evidence was admitted at the trial court level would be determined by Title 12 O.S. Section 2401, 2402 and 2403 of the Oklahoma evidence code, this would define the legal rules for the admissibility of this evidence at trial. In arguing the admissibility at trial a trail lawyer would address the following rules of evidence. Section 2401 defines what is relevant evidence and reads as follows:
“Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” And section 2402 says that “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Oklahoma, by statute or by this Code. Evidence which is not relevant is not admissible.”
So at trial most lawyers would start by arguing that the opinion of the DHS worker was not relevant because it does not “have a tendency to make the existence of” abuse more likely. The opinion of the DHS worker is simply the DHS worker’s opinion and should not be admitted. Then the lawyer would argue that under Title 12 O.S. Section 2402 that “evidence which is not relevant is not admissible.” And therefore the evidence should not be admitted because it is not relevant.
As a backup argument, or in the alternative, most lawyers would also argue the evidence should also be excluded under Title 12 O.S. Section 2403 because the “probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confession of the issues, misleading the jury”. Section 2403 reads “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise....” So most lawyers would argue as a backup that the “probative value” of the DHS workers conclusion is substantially outweighed by danger of unfair prejudice and confusion of the issues.”
At the trial court level, if the judge determines the evidence is relevant (meaning the evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” (Title 12 O.S. Section 2401)) than the legal presumption is the evidence should be admitted (Section 2402 says “All relevant evidence is admissible”) and the defense would have the burden of proving that the “probative value of the evidence is substantially outweighed “by danger of unfair prejudice and confusion of the issues.” (Section 2403) These are the presumptions and burdens of proof at trial, essential the presumptions and burdens associated with the legal rules surrounding the admissibility of this evidence at trial, however, the presumptions and burdens of proof for this issue are different on direct appeal because on appeal a defendant must contend with the “standards of review” that are used in evaluating the trial judge’s decisions.
So in our example, the judge allows the evidence to be introduced, the defendant is convicted and the defendant appeals. On direct appeal at the Oklahoma Court of Criminal Appeals this issue will be determined by an “abuse of discretion standard”. (An abuse of discretion is any 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, ¶ 35, 274 P.3d 161, 170.)
So on direct appeal the issue is no longer a question of whether or not the probative value of the admitted evidence is substantially outweighed by the “danger of unfair prejudice and confusion of the issues.” Because of the “standard of review” or as I refer to them the presumptions and burdens of proof on appeal, the issue on appeal is no longer about whether or not it was legal error to admit the evidence at trial. The issue on appeal is whether or not the trial court judge abused his or her discretion in admitting the evidence. Meaning the defendant would have to prove more than the probative value of the admitted evidence is substantially outweighed by the “danger of unfair prejudice and confusion of the issues”, but that the trial judge’s conclusion that the evidence was admissible was “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. (see Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170).
On appeal there is a presumption that the trial court made the right decision (relevance and materiality of evidence is left to the trial court's sound discretion, see Owens v. State, 1983 OK CR 85, 665 P.2d 832, 835) and to overcome that presumption there is a a higher burden on appeal than there at trial to exclude the evidence.The presumptions on appeal and the higher burden of proof (“standard of review”) makes it is entirely possible that the judges on the appellate court could believe that the evidence should not have been admitted at trial, but that the judge’s decision to admit the evidence was not “an abuse of discretion” and deny the claim because the defendant could not meet their burden on appeal. The court could find this even though they would have made different a decision at the trial court level.
Even if a defendant is able to meet the abuse of discretion standard regarding this issue on appeal, the issue must also survive the harmless error analysis. In other words even if they establish that the judge abused their discretion in admitting the evidence they still must prove that it made a difference in the outcome of the trial or would have likely made a difference in the trial.
So lets say the defendant loses this issue on direct appeal, than that issue is exhausted in state court8. A defendant can not come back on state post conviction relief (Title 22 OS Section 1080) and re-urge the argument. The defendant could raise this issue in Federal Habeas, but once again the presumption and the burden of proof becomes even tougher to overcome the further into the the appellate system the goes goes.
To overcome a ruling made by a state appellate court in federal court a defendant must establish that the ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or that the decision was based upon an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” This is a tougher standard, not only does the decision have to be wrong, it must be contrary to clearly established Federal law, as determined by the United States Supreme Court or it must involve an unreasonable determination of the facts.