“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment to the Constitution of the United States and no less than four separate, but distinct sections of the Oklahoma Constitution, all found under Article Two in the Oklahoma Bill of Rights, guarantee an Oklahoma criminal defendant protection against double jeopardy, protect the right of the accused to remain silent, and provide due process of law. If you have questions about your federal or Oklahoma constitutional rights, contact one of our Tulsa criminal attorneys now.

Grand Jury: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury . . . .” The Office of the United States Attorney, also known as a federal prosecutor, submits virtually all federal criminal law charges to grand juries. Federal grand juries (almost always) return an indictment against the accused. Grand juries deliberate in secret and illegally sized evidence that would otherwise be suppressed from being admitted into evidence in a regular trial proceeding, is admissible to a grand jury. The grand jury clause of the Fifth Amendment applies to the federal government, but not to the individual states. Under the federal constitution, states are free to maintain or abolish the grand jury system. Some states regularly use grand juries for charging decisions; other states, like Oklahoma, do not frequently use the grand jury system for charging decisions. Instead, states have replaced indictment by grand jury with a preliminary hearing that is conducted after charges have been formally filed against a defendant.

Oklahoma Grand Jury: Article 2, Section 18 of the Oklahoma Constitution reads: “A grand jury shall be composed of twelve (12) persons, any nine (9) of whom concurring may find an indictment or true bill. A grand jury shall be convened upon the order of a district judge upon his own motion; or such grand jury shall be ordered by a district judge upon the filing of a petition therefor signed by qualified electors of the county equal to the number of signatures required to propose legislation by a county by initiative petition as provided in Section 5 of Article V of the Oklahoma Constitution, with the minimum number of required signatures being five hundred (500) and the maximum being five thousand (5000); and further providing that in any calendar year in which a grand jury has been convened pursuant to a petition therefor, then any subsequent petition filed during the same calendar year shall require double the minimum number of signatures as were required hereunder for the first petition; or such grand jury shall be ordered convened upon the filing of a verified application by the Attorney General of the State of Oklahoma who shall have authority to conduct the grand jury in investigating crimes which are alleged to have been committed in said county or involving multicounty criminal activities; when so assembled such grand jury shall have power to inquire into and return indictments for all character and grades of crime. All other provisions of the Constitution or the laws of this state in conflict with the provisions of this constitutional amendment are hereby expressly repealed.

The legislature shall enact laws to prevent corruption in making, filing, circulating, and submitting petitions calling for convening a grand jury.”

While grand juries can be convened under Oklahoma criminal law, they are rarely used. A grand jury consists of citizens selected from a county or district and the grand jury is not bound by rigid procedural rules. For example, the formal rules of evidence are relaxed for grand jury proceedings. The original purpose of a grand jury was to provide a fair and just method for instituting criminal charges against those individuals suspected of committing a crime. Most Oklahoma criminal charges, whether misdemeanor or felony, are brought against a defendant with the filing of a charging document called an Information. An Information is drafted and filed by the office of the district attorney. Under Oklahoma criminal law, Article 2, Section 17 of the Oklahoma Bill of Rights, anyone accused of a felony is entitled to a Preliminary Hearing before a magistrate, usually an associate district judge. The Oklahoma Preliminary Hearing is conducted after the Information has been filed and serves as a substitute for indictment by a grand jury.

Double Jeopardy: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

The double jeopardy clause of the Oklahoma Constitution is found in Article 2, Section 21: “[N]or shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” The text of the Oklahoma double jeopardy clause is different from the federal double jeopardy clause found in the Fifth Amendment.

Self Incrimination: “[N]or shall be compelled in any criminal case to be a witness against himself . . . .” The constitutional protection from self-incrimination is also known as the right to remain silent.

The protection against self-incrimination, like the Oklahoma prohibition against double jeopardy, is found in Article 2, Section 21 of the Oklahoma Constitution: “No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided . . . .” Similar to the double jeopardy clause, the text of the Oklahoma self-incrimination clause varies from the federal self-incrimination clause found in the Fifth Amendment, but the protections it provides are the same. Learn more about self-incrimination and the right to remain silent.

Due Process of Law: “[N]or deprived of life, liberty, or property, without due process of law . . . .”

The Oklahoma guarantee of Due Process of Law can be found in Article 2, Section 7 of the Oklahoma Constitution: “No person shall be deprived of life, liberty, or property, without due process of law.” A person cannot be deprived of their life, liberty, or property without due process of law. What this means under Oklahoma criminal law is that the government cannot simply impose criminal charges or penalties upon you without a hearing and providing you notice and an opportunity to respond. For anyone accused of a crime, the hearing is a jury trial or non-jury trial where the government must prove your guilt beyond a reasonable doubt, the highest burden in the law. A Tulsa criminal attorney can ensure that your constitutional rights are protected and be your advocate in a court of criminal law.

2009 Rob V. Henson Tulsa Criminal Attorney – All rights reserved.