When Is the Prosecutor Allowed to Amend Criminal Charges in Oklahoma?

And I’ve got two things we want to talk about. First, we’ve got the statute, and then we have a relatively new case interpreting that statute. And that kind of gives us an idea of when they can and when they cannot amend. So first, Oklahoma statute, when can the prosecutor amend? That is Title 22, Section 304. And it says information may be amended in a matter of substance or form at any time before the defendant pleads without leave and may be amended after the plea on the order of the court where the same can be done without material prejudice to the right of the defendant. No amendment shall cause any delay of the trial unless good cause is shown by the affidavit.

All right. So what this says is that prior to the time that the defendant enters a plea, a plea of not guilty, generally speaking, the state can amend at any time on their own without leave of court. After the defendant has entered a plea, generally not guilty, and it goes forward from that point, the state cannot amend the charging document, the information, without the permission of the court, and the court should not give permission unless it can be done without material prejudice to the rights of the defendant. That’s what the law says.

Now, we’ve got a case from the Oklahoma Court of Criminal Appeals, and it was not published, but it was from December 20th, 2018. The case number is F 2017 946. It’s Christopher Lee Douglas versus the State of Oklahoma. And he was charged with a crime against a child. And the state amended the information with Lee from the judge on the second day of the trial. So they had already gone through the entire process of pretrial proceedings. They did a full-on preliminary hearing where the defendant was bound over on those original charges in the information. And then they went forward, and they had their perhaps motion to quash, perhaps other pretrial proceedings. And then they started the trial. They empaneled the jury. They started doing testimony. And then on the second day, the state wanted to amend the petition, I’m sorry, amend the information in order to allege that the victim was under the age of 12 because that could be a more serious offense, more serious punishment.

The defendant objected, and the judge allowed that amendment in the middle of the trial, and it was appealed to the Oklahoma Court of Criminal Appeals. So the Oklahoma Court of Criminal Appeals talked about the statute and that information can be amended even after the trial begins, is what they’re saying. The statute doesn’t specifically say that part, but it does say as long as it does not prejudice the defendant. So they’re saying, well, the statute says we can do it at any time as long as it doesn’t prejudice the defendant. So that means we can do it in the middle of the trial as long as it doesn’t prejudice the defendant.

So when does it prejudice the defendant? Well, there’s previous case law on that back in 1977. That’s Grizzle v. State, 1977 OK CR 22, which talks about amended information that does not require a new preliminary hearing if it does not substantially alter the charge or necessitate the introduction of contemporary issues. So as long as it doesn’t alter the charge. Well, I mean, if you’re amending the information, you’re literally altering the charging document. So I don’t know how that’s different precisely than altering the charge, but perhaps that means they charge a different crime entirely or necessitates the introduction of new issues. Here. Of course, we’re introducing the issue of the child’s age as being relevant there.

Regardless, they find that there’s no abuse in the discretion of the trial in court allowing the amendment of the information on the second day of trial. And they allowed that to happen. They found that it wasn’t prejudicial to the defendant to change the charges in the middle of the trial when they added the new issue alleging that the child was under the age of 12, which is something that the state or I’m sorry, that the defense may not have been prepared to argue as an issue.

So there you have it. The current state of the law in the state of Oklahoma. When can the state amend the charging document? Anytime prior to a plea of not guilty. Thereafter, with leave of court, as long as it’s without material prejudice to the rights of the defendant. However, note that the top criminal court in the state of Oklahoma, the Oklahoma Court of Criminal Appeals finds it very difficult to find material prejudice to a defendant under these circumstances. And it’s a little bit scary when they’re allowing the prosecutor to amend charges, but that’s the state of law currently.

If you are dealing with a criminal case in the state of Oklahoma, you’re going to want to talk to an attorney about that privately and confidentially. To set an appointment with a Tulsa criminal defense lawyer at my office, you can go online to makelaweasy.com.