The Law Is Clear Based on Anderson V State
Video Transcribed: Must a Jury be Told About 85% Rule in Oklahoma? I’m an attorney in Tulsa James Wirth and we’re talking about the 85% rule and jury instructions and what is required. So regarding the 85% rule, that is a statute that lists serious violent crimes, where somebody who’s been convicted of it must serve at least 85% of the time before they are eligible for parole. And the question becomes when a jury is deciding how much time should I sentence somebody to? Is it appropriate to let them know that the law mandates that they serve at least 85% of their time?
And historically the law in Oklahoma based on decisions from the Oklahoma Court of Criminal Appeals, which makes the jury instructions for the state of Oklahoma have stayed away from any kind of information given to a jury about how much time they would serve.
But that changed in 2006. And that changed based on the opinion in Anderson V State. Because around the year 2000, we had this 85% rule that went into effect and it was the first time we had a clear-cut definitive rule that the defendant must serve at least 85% for this serious crime.
So the court found that it is inappropriate not to give that information to a jury because juries may have a tendency to decide the length of a sentence based on their assumptions on how long somebody may serve or how quickly they may get parole. And this case set it up pretty perfectly because there were prior ones where they decided don’t have to advise of an 85% rule. We never advise juries on how long somebody is going to serve.
But in this case, the defendant specifically asked for a jury instruction, advising the jury he must serve at least 85% and the court denied that. And then it went to deliberations and the jury actually sent a note out from deliberations and the jury sent a note asking how many years had to be served before a person was eligible for parole.
And the judge in that case, as is typically the case, responded with you have all the law and evidence that you need to decide this case and didn’t provide additional information.
But the fact that it was requested and denied, and the jury asked that exact question and denied and that the defense attorney objected to not providing it that second time, set up the perfect record for this to be the appeal that decides substantive law and that’s what happened. It was appealed up, went to the Oklahoma Court of Criminal Appeals and they overruled their prior decisions and held that in the case of an 85% crime, the jury does need to be informed. They must serve at least 85%.
So it does apply only to the 85%. It does not apply to other types of charges that don’t have that requirement, maybe that are 25% crimes, now or any other types of circumstances where information may help the jury how much time to serve. It only applies to 85% of crimes, but the law is clear based on Anderson V State.
That’s a published opinion, 2006 OKCR6 and it must be provided in a jury instruction for juries in Oklahoma in criminal cases. If you’ve got questions about your criminal case or that of a friend or how the law may apply to your situation, you’re not going to want to take this general information from this video, you’re going to want to talk specifically and confidentially with an Oklahoma attorney to get that scheduled with somebody at my office, you can go online to makelaweasy.com.