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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
SENATE BILL 1677 By: Howard
AS INTRODUCED
An Act relating to criminal discovery; amending 22
O.S. 2021, Sections 258 and 2002, which relate to
preliminary examinations and disc losure of evidence;
modifying information required to be provided to
defendant prior to termination of preliminary
hearing; modifying time period for completion of
certain discovery requests; making languag e gender
neutral; updating statutory language; and providing
an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 22 O.S. 2021, Section 258, is
amended to read as follow s:
Section 258. First: The witnesses must be examined in the
presence of the defendant, and may be cross -examined by him the
defendant. On the request of the district attorney, or the
defendant, all the testimony must be reduced to writing in the form
of questions and answers and signed by the witnesses, or the same
may be taken in shorthand and transcribed without signing, and in
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both cases filed with the clerk of the district court, by the
examining magistrate, and may be used as provided in Section 333 of
this title. In no case shall the county be liable for the expense
in reducing such testimony to writing, unless ordered by the judge
of a court of record.
Second: The district attorney may, on approval of the county
judge or the district judge, issue subpoenas in felony cases and
call witnesses before him or her and have them sworn and their
testimony reduced to writing and signed by the witnesses at the cost
of the county. Such examination must be confined to some felony
committed against the statute s of the state and triable in that
county, and the evidence so taken shall not be receivable in any
civil proceeding. A refusal to obey such subpoena or to be sworn or
to testify may be punishe d as a contempt on co mplaint and showing to
the county court, or district court, or the judges the reof that
proper cause exists therefor.
Third: No preliminary information shall be filed without the
consent or endorsement of the district attorney, unless the
defendant be taken in the commission of a felony, or the o ffense be
of such character that the accused is liable to escape before the
district attorney can be consulted. If the defendant is discharged
and the information is filed without authority fro m or endorsement
of the district attorney, the costs must be t axed to the prosecuting
witness, and the county shall not be liable therefor.
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Fourth: The convening and session of a grand jury does not
dispense with the right of the district attorney to file complaints
and informations, conduct preliminary hearings and other routine
matters, unless other wise specifically ordered, by a written order
of the court convening the grand jury; made on the court ’s own
motion, or at the request of the grand jury.
Fifth: There shall be no preliminary examinations in
misdemeanor cases.
Sixth: A preliminary magistr ate shall have the authority to
limit the evidence presented at the preliminary hearing to that
which is relevant to the issues of: (1) whether the crime was
committed, and (2) w hether there is probable cause to believe the
defendant committed the crime. Once a showing of probable cause is
made the magistrate shall terminate the preliminary hearing and
enter a bindover order; provided, however, that the preli minary
hearing shall be terminated only if the state made avai lable for
inspection law enforcement reports all discovery requested by the
defendant within the prosecuting attorney ’s knowledge or possession
at the time to the defendant five (5) working days prior to the date
of the preliminary hea ring. The district attorney shall determine
whether or not to make law enforcement reports available prior to
the preliminary hearing unless otherwise ordered by the court for
good cause shown. If reports are made available, the district
attorney shall be required to provide those law enforcement reports
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that the district attorney knows to exist at the time of providing
the reports, but this does not include any physical evidence which
may exist in the case. This provision does not require the district
attorney to provide co pies for the defendant, but only to make them
available for inspection by defense counsel. In the alternative,
upon agreement of the state and the defendant, the court may
terminate the prelimi nary hearing once a showing of probable cause
is made.
Seventh: A preliminary magistrate shall ac cept into evidence as
proof of prior convictions a noncertified copy of a Judgment and
Sentence when the copy appears to the preliminary magistrate to be
patently accurate. The district attorney shall make a noncertifie d
copy of the Judgment and Sentence available to the defendant no
fewer than five (5) days prior to the hearing. If such copy is not
made available five (5) days prior to the hearing, the court shall
continue the portion of the hearing to which the copy i s relevant
for such time as the defe ndant requests, not to exceed five (5) days
subsequent to the receipt of the copy.
Eighth: The purpose of the preliminary hearing is to establish
probable cause that a crime was committed and probable cause that
the defendant committed the crime.
SECTION 2. AMENDATORY 22 O.S. 2021, Section 2002, is
amended to read as follows:
Section 2002. A. Disclosure of Evidence by the State.
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1. Upon request of the defense, the state s hall disclose the
following:
a. the names and addresses o f witnesses which the state
intends to call at trial, together with their
relevant, written or recorde d statement, if any, or if
none, significant summaries of any oral statement,
b. law enforcement reports made in conne ction with the
particular case,
c. any written or recorded statements and the substance
of any oral statements made by the accused or made by
a codefendant,
d. any reports or statements made by experts in
connection with the particular case, including results
of physical or mental examinatio ns and of scientific
tests, experiments, or comparisons,
e. any books, papers, documents, photographs, tangible
objects, buildings or places which the prosecuting
attorney intends to use in the heari ng or trial or
which were obtained from or belong to the accused,
f. any record of prior criminal convictions of the
defendant, or of any codefendant, and
g. Oklahoma State Bureau of Investigation (OSBI) rap
sheet/records check on any witness listed by the state
or the defense as a witness who will testify at tr ial,
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as well as any convictions of any witness revealed
through additional record check s if the defense has
furnished Social Security numbers or date dates of
birth for their witnesses, except OSBI rap
sheet/record checks shall not provide date of birth,
Social Security number, home phone number or address.
2. The state shall provide the defendant any evidence favorable
to the defendant if such evidence is material to either guilt or
punishment.
3. The prosecuting attorney’s obligations under this standard
extend to:
a. material and information in the possession or control
of members of the prosecutor ’s staff,
b. any information in the possession of law enforcement
agencies that regularly report to the pro secutor of
which the prosecutor should reasonably know, a nd
c. any information in the possession of law enforcement
agencies who have reported to the prosecuto r with
reference to the particular case of which the
prosecutor should reasonably know.
4. a. If the state intends to introduce testimony of a
jailhouse informant, the state shall disclose at least
ten (10) days prior to trial:
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(1) the complete criminal hi story of such informa nt,
including any dismissed charges,
(2) any deal, promise, inducement or be nefit that the
state or law enforcement agency has made o r may
make in the future to the jailhouse informant in
connection with the testimony of such informant ,
(3) the specific statements or recordings made by the
suspect or defendant and the time, place and
manner of the disclosure to the jailhouse
informant,
(4) all other filed cases in which the state intended
to introduce the testimony of the jailhouse
informant in connection w ith a deal, promise,
inducement or benefit, the nature of the deal,
promise, inducement or benefit, and whether the
testimony was admitted in the case,
(5) whether at any time the jailhouse informant
recanted the testimony or statement , and if so, a
transcript or copy of such recantation, if any,
and
(6) any other information rele vant to the credibility
of the informant.
b. Each district attorney’s office shall maintain a
central record that tracks each case in which the
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state intended to introduce the test imony of the
jailhouse informant against a suspect or defendant in
connection with a deal, promise, inducement or
benefit, the nature of the deal, promise, inducement
or benefit and whether such testimony or statements
were admitted in the case. Such reco rd shall be sent
to the District Attorneys Council which shall maintain
a statewide record of such information. Records
maintained pursuant to this paragraph shall only be
accessible to prosecutors and shall not be subject to
the Oklahoma Open Records Act . By September 15 of
each year, the District Attorneys Council shall
publish an annual report of aggregate, de-identified
data regarding the total number of cases tracked
pursuant to this section, and the number of cases
added during the previous fiscal y ear pursuant to this
section by each district attorney ’s office. A copy of
the report shall be distributed to the Governor, the
President Pro Tempore of the Senate, the Speaker of
the House of Representatives and the chairs of the
Senate and House Judicia ry Committees.
c. For purposes of this paragraph, “jailhouse informant”
means a person who provides, or who the prosecutor
intends to provide, testimony about admissions or
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other relevant information made to him or her by the
suspect or defendant while bot h persons were detained
or incarcerated in a penal institution the custody of
the Department of Corrections.
B. Disclosure of Evidence by the Defendant.
1. Upon request of the state, the defense shall be required to
disclose the following:
a. the names and addresses of witnesse s which the defense
intends to call at trial, together with their
relevant, written or recorded s tatement, if any, or i f
none, significant summaries of an y oral statement,
b. the name and address of any witness, other than the
defendant, who will be called to show that the
defendant was not present at the time and place
specified in the information or indictment, together
with the witness’ witness's statement to that fact,
and
c. the names and addresses of any witness the defendant
will call, other than himself the defendant, for
testimony relating to any mental disease, mental
defect, or other condition bearing upon his or her
mental state at the time the offense was all egedly
committed, together with the witness’ witness's
statement of that fact, if the statement is redacted
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by the court to preclude disclosure of privile ged
communication.
2. A statement filed under subpar agraph a, b or c of par agraph
1 of subsection A or B of thi s section is not admissible in evidence
at trial. Information obtained as a result of a statement filed
under subsection A or B of this section is not admissible in
evidence at trial except to ref ute the testimony of a witness whose
identity subsection A of this section requires to be disclosed.
3. Upon the prosecuting attorney ’s request after the time set
by the court, the defendant shall allow him or her access at any
reasonable times and in any reasonable manner to inspect,
photograph, copy, or have re asonable tests made upon any book,
paper, document, photograph, or tangible object which is within the
defendant’s possession or control and which:
a. the defendant intends to offer in evidence, ex cept to
the extent that it con tains any communication of th e
defendant, or
b. is a report or statement as to a physical or mental
examination or scientific test or experiment made in
connection with the particular case prepared by and
relating to the antic ipated testimony of a person w hom
the defendant intends to call as a witness, provided
the report or statement is redacted by the court to
preclude disclosure of privileged communication.
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C. Continuing Duty to Disclose.
If, prior to or during trial, a par ty discovers additional
evidence or material previously req uested or ordered, which is
subject to discovery or inspection under the Oklahoma Criminal
Discovery Code, such party shall prompt ly notify the other party,
the attorney of the other party, or the court of the existence of
the additional evidence or materi al.
D. Time of Discovery.
Motions for discovery may be made at the time of the district
court arraignment or thereafter ; provided that requests for police
reports may be made subject to the provis ions of Section 258 of this
title. However, a request purs uant to Section 258 of this title
shall be subject to the discretion of the district attorney . All
issues relating to discovery, except as otherwise provided, will be
completed at least ten (10) days prior to trial within thirty (30)
days of receiving a r equest from the defendant but no fewer than ten
(10) days prior to trial . The court may specify the time, place and
manner of making the discovery and may prescribe such terms and
conditions as are just.
E. Regulation of Discovery.
1. Protective and Modifying O rders. Upon motion of the state
or defendant, the court may at any time ord er that specified
disclosures be restricted, or make any other protective order. If
the court enters an ord er restricting specified disclosures, the
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entire text of the material re stricted shall be sealed and preserved
in the records of the court to be mad e available to the appellate
court in the event of an appeal.
2. Failure to Comply with a Request. If at a ny time during the
course of the proceedings it is brought to the attent ion of the
court that a party has faile d to comply with this rule, the court
may order such party to permit the discovery or inspection, gr ant
continuance, or prohibit the party from i ntroducing evidence not
disclosed, or it may enter such other order as i t deems just under
the circumstances.
3. The discovery order shall not incl ude discovery of legal
work product of either attorney which is deemed to include legal
research or those po rtions of records, correspondence, reports, or
memoranda which are only the opinions, theories, or conclusions of
the attorney or the attorney ’s legal staff.
F. Reasonable cost of copying, duplicating, videotap ing,
developing or any other cost associated with this Code for items
requested shall be paid by the party so request ing; however, any
item which was obtain ed from the defendant by the state of which
copies are requested by the defendant shall be paid by t he state.
Provided, if the court determines the defendant is indigent and
without funds to pay the cost of reproduct ion of the required items,
the cost shall be paid by the Indigent Defender S ystem, unless
otherwise provided by law.
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SECTION 3. This act shall become effective Novembe r 1, 2022.
58-2-3382 TEK 1/20/2022 5:11:33 PM