Ark. Code Ann. § 16-43-501 (2020)

Case Notes

Applicability.

This section does not apply to the admission of a voluntary statement made by accused at a coroner's inquest. Dunham v. State, 207 Ark. 472, 181 S.W.2d 242 (1944).

Comments on Failure to Testify.

Prosecutor's comments on defendant's failure to testify held improperly allowed. Curtis v. State, 89 Ark. 394, 117 S.W. 521 (1909); Porterfield v. State, 145 Ark. 472, 224 S.W. 957 (1920); Perry v. State, 188 Ark. 133, 64 S.W.2d 328 (1933); Freeman v. State, 214 Ark. 359, 216 S.W.2d 864 (1949); Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985).

This section does not authorize the defendant's counsel to offer explanation as to defendant's failure to testify, so that where counsel for defendant stated that he did not take the stand because it was not necessary, he cannot complain that the prosecuting attorney replied that he could have taken the stand and denied the charge. Collins v. State, 143 Ark. 604, 221 S.W. 455 (1920).

It is error, presumptively prejudicial, for the prosecuting attorney to call attention of the jury to the failure of the accused to testify. Bridgman v. State, 170 Ark. 709, 280 S.W. 982 (1926)Criticized byBradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995); Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

The prosecuting attorney's statement was not a comment on the defendant's failure to testify but merely an argument that the named witnesses' testimony should be believed because undisputed. Davis v. State, 174 Ark. 891, 298 S.W. 359 (1927).

Prosecutor's remark in his opening statement to the effect that the decedent could not tell his side of the story and that it would all have to come from the defendant resulted in pre-evidentiary coercion which may have forced the defendant to testify against her will. Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974).

A violation of this section, although presumptively prejudicial, can be harmless error if it is shown beyond a reasonable doubt that the error did not influence the verdict. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

Although the prosecutor made an impermissable comment regarding witness' failure to testify, the overwhelming evidence of defendant's guilt rendered the improper comment harmless. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998).

Cross-Examination.

When a defendant in a criminal case becomes a witness in his own behalf, he may be impeached on cross-examination and may be questioned as to whether he has formerly been convicted of an infamous crime. Turner v. State, 100 Ark. 199, 139 S.W. 1124, 1911 Ark. LEXIS 336 (1911).

Directed Verdict.

Court cannot direct verdict of guilty, although there is sufficient evidence to convict and such evidence is undenied, since defendant's failure to testify cannot create a presumption against him. Paxton v. State, 114 Ark. 393, 170 S.W. 80 (1914).

Immunity from Testifying.

Statements made by a witness in the presence of the accused before the examining court did not call for a denial from him as he was not required to testify in the case. Maloney v. State, 91 Ark. 485, 121 S.W. 728 (1909).

Even after an indictment is found, the person charged cannot be made a witness in the trial except at his own request. Claborn v. State, 115 Ark. 387, 171 S.W. 862 (1914).

The trial court erred in requiring defendant to take the witness stand when called as a witness by his codefendant when they were tried together. Brown v. State, 259 Ark. 449, 534 S.W.2d 213, 1976 Ark. LEXIS 2088 (1976).

Instructions.

Where the accused has taken the stand as a witness and his testimony has been impeached by evidence of contradictory statements, it is the duty of the trial court to admonish the jury that the alleged conflicting statements are not to be considered as substantive proof of the accused's guilt. Pinkerton v. State, 126 Ark. 201, 190 S.W. 110 (1916).

An instruction that the defendant had a right to testify and the fact that he did not avail himself of this right was not to be considered against him, was not prejudicial to the defendant. Scott v. State, 169 Ark. 326, 275 S.W. 667 (1925).

Refusal of an instruction that the defendant's failure to testify was neither evidence nor presumption of guilt and should not be considered in determining guilt, was reversible error under this section. Cox v. State, 173 Ark. 1115, 295 S.W. 29 (1927). See Martin v. State, 151 Ark. 365, 236 S.W. 274 (1922).

Instruction that accused's failure to testify was not to be considered in determining his guilt, given without a request therefor, was not error. Thompson v. State, 205 Ark. 1040, 172 S.W.2d 234 (1943)Questioned byRussell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966).