Proposed bill would provide overdue reform of the criminal legal process (Capitol Update)

House Bill 3777 by Rep. Collin Duel, R-Guthrie, is an important and long overdue reform in the criminal legal process. The bill, which deals with discovery in criminal trials, passed unanimously out of the House’s Judiciary-Civil Committee at the end of the first week of session.

Oklahoma has an expansive criminal discovery statute, 22 O.S. 2002, requiring the prosecution, upon request, to provide names and addresses of witnesses; law enforcement reports; written or recorded or oral statements by the accused or a co-defendant; reports or statements of experts; any books, papers, documents, photographs, tangible objects, buildings or places which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused; and any record of prior criminal convictions of the defendant, or of any codefendant and witnesses listed by the prosecution or defense.

However, a weakness in the Oklahoma criminal discovery process is the accused has no statutory ability prior to trial to subpoena a third-party witness to produce and permit inspection, copying, testing, or sampling of designated books, documents, electronically stored information or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a specified time and place. Discovery only requires the prosecutor to produce evidence within the prosecutor’s possession or knowledge.

An accused may believe that telephone records, medical reports, business records such as rental receipts for example or other documents in possession of a third party would help assist in his defense. But there is no way currently allowed by statute for the accused to subpoena that information in time to make effective use of it. 

HB 3777 allows the accused to issue subpoenas to third parties for the documents or tangible things they may have in their possession well in advance of the trial or hearing. This gives accused persons the ability to obtain evidence that would be important to their case. There are procedures in the bill to avoid abuse of the process. Rep. Duel’s bill is a big step toward fairness and efficiency.   

Another weakness in the criminal discovery statute is the discovery process is not required to be completed until 10 days before trial. Since most criminal cases are resolved by plea agreement, defendants are often required to agree to a plea deal before they have received all the discovery to which they are entitled.

Gov. Stitt’s recently released MODERN Justice Taskforce Report noted that in some counties the completion of discovery within the statutory 10-days prior to trial is inadequate, and the inability to meet this deadline results in frequent continuances keeping defendants in lengthier pretrial confinement in county jails.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.