Ark. Code Ann. § 16-89-107 (2020)

Research References

ALR.

What Constitutes Accused's Consent to Court's Discharge of Jury or to Grant of Motion for Mistrial Which Will Constitute Waiver of Former Jeopardy Plea — Silence or Failure to Object or Protest. 103 A.L.R.6th 137 (2015).

Ark. L. Rev.

Note, Arizona v. Fulminate: Should Arkansas Courts Apply Harmless Error Analysis to Coerced Confessions, 45 Ark. L. Rev. 1015.

Case Notes

Constitutionality.

This section is constitutional as to the degree of proof required for a finding that a confession was voluntarily made. Ballew v. Sarver, 320 F. Supp. 1233 (E.D. Ark. 1970).

Confessions.

Admission of confessions without determining voluntariness was reversible error. Chenowith v. State, 247 Ark. 472, 445 S.W.2d 889 (1969).

The procedure outlined in this section, which requires the trial court to determine the voluntariness of confessions by a preponderance of the evidence, and an independent review on appeal are sufficient to meet the test that voluntariness be “fairly determined.” Ballew v. State, 249 Ark. 480, 459 S.W.2d 577 (1970).

Although a hearing was conducted out of the presence of the jury, and the court determined the confession to be voluntary, under this section it was error for the court subsequently to limit cross-examination of the witness before the jury, excluding the circumstances bearing on the voluntariness of the confession. Kagebein v. State, 254 Ark. 904, 496 S.W.2d 435 (1973).

In ruling upon the suppression of a confession, each case must be determined by looking at the totality of the circumstances. This totality is subdivided into two main components; first, the statement of the officer, and second, the vulnerability of the defendant. Holmes v. State, 268 Ark. 601, 594 S.W.2d 267 (Ct. App. 1980); State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982).

Deficiency in a ruling as to the voluntariness of a statement does not in itself entitle the defendant to a new trial. The cause should be remanded to the trial court for an explicit determination of the issue of voluntariness, and a new trial should be ordered only if the trial judge finds the confession to have been involuntary. Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980); Moore v. State, 309 Ark. 166, 828 S.W.2d 599 (1992).

The general policy of a sheriff's office as to whether a statement by a defendant must be written or oral is irrelevant to the determination of whether the defendant's statements were freely and voluntarily made. Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981).

The defendant waived any objections to the use of the statement made by him at the police station by placing it in evidence. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

A confession induced by a misleading promise of reward or threat of harm is not a voluntary statement. Taylor v. State, 288 Ark. 456, 706 S.W.2d 384 (1986).

The purpose of a hearing under this section is to prevent a jury from hearing a confession before the court determines whether it has been voluntarily given and not to restrict evidence after the court has made the determination of voluntariness. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995).

—Appeal.

Where there is substantial evidence in the record to support the trial court's determination, that determination will not be disturbed on appeal. Mullins v. State, 240 Ark. 608, 401 S.W.2d 9 (1966).

Where the defendant at the hearing on voluntariness before the court made no objection, the court on appeal will not consider objections made thereafter. DuBois v. State, 258 Ark. 459, 527 S.W.2d 595 (1975).

The Supreme Court makes an independent determination of voluntariness, but does not reverse the trial court's findings unless they are clearly against the preponderance of the evidence. Titus v. State, 268 Ark. 9, 593 S.W.2d 164 (1980); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

The Supreme Court reviews the entire record on the question of the voluntariness of an incriminating statement, but the court considers testimony offered after a hearing only when the point has been properly raised in the trial court. Titus v. State, 268 Ark. 9, 593 S.W.2d 164 (1980).

While an appellate court does not reverse the trial court's finding on the voluntariness of an in-custodial confession unless it is clearly erroneous, it does make an independent determination based on the totality of circumstances, with all doubts resolved in favor of individual rights and safeguards, to determine whether the holding of the trial court was erroneous. State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982); Free v. State, 19 Ark. App. 84, 717 S.W.2d 215 (1986), rev'd, 293 Ark. 65, 732 S.W.2d 452 (Ark. 1987).

—Burden of Proof.

State has burden of proving the voluntariness of an in-custody confession by producing all the material witnesses or accounting for their absence. Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Williams v. State, 278 Ark. 9, 642 S.W.2d 887, 1982 Ark. LEXIS 1606 (1982).

State has burden of showing that the defendant's confession was made after a voluntary, knowing and intelligent waiver of the right to remain silent. Cagle v. State, 267 Ark. 1145, 594 S.W.2d 573 (Ct. App. 1980).

The burden to prove the confession's voluntariness in a hearing does not become the state's unless the defense challenges the voluntariness and moves to suppress. Benedetti v. State, 268 Ark. 571, 594 S.W.2d 61 (Ct. App. 1980).

The state bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession. Any conflict in the testimony of different witnesses is for the trial court to resolve. State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982).

There is a presumption that an in-custody confession is involuntary, and the burden is on the state to show the statement to have been voluntarily, freely, and understandably made, without fear or hope of reward. Free v. State, 19 Ark. App. 84, 717 S.W.2d 215 (1986), rev'd, 293 Ark. 65, 732 S.W.2d 452 (Ark. 1987).

Where defendant's suppression motion raised the issue of involuntariness of his statements to police and where detective was a material witness connected with those controverted statements, it became the state's burden to produce detective at a suppression hearing or to explain his absence. Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996).

—Factors Considered.

Factors to be considered in determining the voluntariness of the waiver of the right to remain silent include age, education, and intelligence of the accused, advice or lack of advice of constitutional rights, length of detention, repeated or prolonged questioning, and the use of mental or physical punishment. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

A low intelligence quotient will not in itself render a waiver of the right to remain silent involuntary where the evidence shows the waiver was knowing and voluntary. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986).

—Hearing.

It was permissible for prosecution to use a statement made by defendant while in custody to test the credibility of her testimony at the trial even though no hearing to determine the voluntariness of the prior statement was held. Rooks v. State, 250 Ark. 561, 466 S.W.2d 478 (1971)Questioned byHendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (Ark. 1986).

Defendant was not deprived of his rights by a hearing on the voluntariness of his confession conducted in the presence of the jury where he made no objection to the procedure at the time. Hill v. State, 250 Ark. 812, 467 S.W.2d 179 (1971).

It was not necessary to submit the issue of the voluntariness of a confession to the jury in the absence of a defense request. The holding of a hearing in the judge's chambers on the admissibility of the confession was all that was required. Furlow v. State, 251 Ark. 757, 475 S.W.2d 524 (1972).

Defendant's statements to sheriff during his incarceration could be used by the prosecution to impeach defendant's testimony without the requirement of a hearing held outside the presence of jury to determine its voluntariness. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975).

Evidence showed statements were not a confession within this section, so no in camera hearing was needed to test their voluntariness. Workman v. State, 267 Ark. 103, 589 S.W.2d 20 (1979).

Issue of voluntariness of defendant's statements was sufficiently raised at trial in a manner that required a hearing outside the presence of the jury on the voluntariness of the statements. Bucy v. State, 271 Ark. 768, 610 S.W.2d 576 (1981).

Trial court's failure to hold a hearing requested to determine the voluntariness of defendant's confession did not entitle defendant to a new trial; and case was remanded to trial court with instructions to conduct hearing and rule on the issue of voluntariness of defendant's confession. Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989).

The filing of a motion to strike the defendant's statement, with a certificate of service to the prosecuting attorney, sufficiently raised the issue of the voluntariness of the defendant's in-custody statement to require the court to hear the evidence concerning the admissibility and voluntariness of the statement out of the presence of the jury. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990).

—Issue Raised by Defendant.

The admissibility of defendant's custodial statements was clearly “raised by the defendant” by way of his pretrial motion to suppress; despite the State's contention that defendant abandoned his suppression effort by failing to object to the admissibility of the statements when they were introduced at trial, defendant's pretrial suppression motion was all that was required by this section to raise the issue to the trial court and trigger its obligation to hold a hearing. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

A defendant is not required to raise the question of the admissibility of his incriminating custodial statements more than once. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

—Submission to Jury.

Where trial judge and attorneys retired to judge's chambers and discussed question of whether confessions was voluntary and judge, after finding confession was voluntary, submitted question to jury, procedure followed did not amount to reversible error. Hall v. State, 242 Ark. 201, 412 S.W.2d 603 (1967).

It was reversible error for the court to submit the question of the voluntariness of defendant's question to the jury rather than to determine the matter outside the presence of the jury. Estep v. State, 244 Ark. 843, 427 S.W.2d 535 (1968).

It was proper for trial court, in prosecution for first-degree murder, to refuse to submit issue of the voluntariness of appellant's confession to the jury and, as provided for by this section, to make its own finding as to voluntariness of the confession. Walker v. State, 253 Ark. 676, 488 S.W.2d 40 (1972).

Judge's statement to jury as to voluntariness amounted to a comment on the weight of the evidence and it was error to refuse to declare a mistrial. Walker v. State, 253 Ark. 676, 488 S.W.2d 40 (1972).

—Sufficiency of Evidence.

Evidence sufficient to show confession was voluntary and properly admissible. Ballew v. Sarver, 320 F. Supp. 1233 (E.D. Ark. 1970); Gray v. State, 253 Ark. 261, 485 S.W.2d 537 (1972); Bell v. State, 258 Ark. 976, 530 S.W.2d 662 (1975); Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977), cert. denied, 439 U.S. 882, 58 L. Ed. 2d 194 (1978); Holmes v. State, 268 Ark. 601, 594 S.W.2d 267 (Ct. App. 1980); Cagle v. State, 267 Ark. 1145, 594 S.W.2d 573 (Ct. App. 1980); Anderson v. State, 267 Ark. 1169, 594 S.W.2d 54, 1980 Ark. App. LEXIS 1184 (Ct. App. 1980); Titus v. State, 268 Ark. 9, 593 S.W.2d 164 (1980); Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981); Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981); Jackson v. State, 273 Ark. 107, 617 S.W.2d 13 (1981); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), cert. denied, Hunes v. Arkansas, 513 U.S. 844, 115 S. Ct. 134 (1994); Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982); Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986); Taylor v. State, 288 Ark. 456, 706 S.W.2d 384 (1986); Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986); Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986); Free v. State, 19 Ark. App. 84, 717 S.W.2d 215 (1986), rev'd, 293 Ark. 65, 732 S.W.2d 452 (Ark. 1987); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986); Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996).

Evidence sufficient to show defendant's confession was not voluntarily made. Richardson v. State, 274 Ark. 473, 625 S.W.2d 504 (1981); State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982).

—Voluntariness.

There is a difference between the concept of an involuntary statement and a statement made without a knowing and intelligent waiver of one's constitutional rights; depending on the argument presented by the defendant in his suppression motion, a trial court should determine in the hearing whether the statement is inadmissible on account of its involuntariness or the lack of an effective waiver, or perhaps both of these grounds. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

The language of subdivision (b)(1) appears to require the trial court to consider only whether a statement was “voluntary” when the admissibility of the statement has been raised by the defendant; however, the Supreme Court has clearly required the trial court, if the defendant has alleged that his statement is inadmissible due to the lack of a waiver, to consider in a suppression hearing whether the statement was made after a knowing and intelligent waiver of his constitutional rights. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

Jury Questions.

When the issue involves a mixed question of law and fact, the jury may be judge of both law and facts themselves and are not bound by the law as declared by the court. Robinson v. State, 33 Ark. 180 (1878); Sweeney v. State, 35 Ark. 585 (1880).

It is within the exclusive province of the jury to determine, under proper instructions of the court, when the evidence is sufficient to convict; the court is without right to point out what inference may be drawn from particular facts in proof. Spivey v. State, 133 Ark. 314, 198 S.W. 101 (1917).

Circuit court erred in overruling appellant's motion for a jury trial on her fine for violating a municipal speeding ordinance. Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975).

Issues of fact must be tried by a jury; judges are prohibited from charging juries with regard to matters of fact (Ark. Const., Art. 7, § 23). Foster v. Lockhart, 811 F. Supp. 1363 (E.D. Ark. 1992), aff'd, 9 F.3d 722 (8th Cir. Ark. 1993).

Determining credibility of witnesses is within a jury's domain. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).

State inmate's federal habeas claim that the Supreme Court of Arkansas erred in rejecting his postconviction jury instruction argument because the Sixth Amendment right to present a complete defense included the right to have the credibility of a confession determined by the jury, and the jury had to be instructed on the issue was procedurally barred because it was not “fairly presented” to the appropriate state court, and further, the jury instruction claim lacked merit even if not procedurally barred because under subdivision (b)(1) of this section, voluntariness was decided by the court, not the jury. Rucker v. Norris, 563 F.3d 766 (8th Cir.), cert. denied, 558 U.S. 950, 130 S. Ct. 401, 175 L. Ed. 2d 275 (2009).

Questions of Law.

Pro se defendant's sufficiency of the evidence challenge was not preserved as he failed to make a motion for a directed verdict before a trial court. He did not request a jury nullification instruction, nor was he entitled to one as, under subdivision (a)(3) of this section, all questions of law were decided by the trial court. Bower v. State, 2010 Ark. 456 (2010).

Right to Jury Trial.

Defendant, who appealed his conviction for driving his car left of center to the circuit court, had no need to demand or move for a trial by jury, much less obtain a ruling on the issue and thus the trial court erred in not honoring his right to be tried by a jury. Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991), modified, 305 Ark. 426, 809 S.W.2d 370 (1991).

Cited: Murphy v. State, 248 Ark. 794, 454 S.W.2d 302 (1970); Murphy v. State, 255 Ark. 398, 500 S.W.2d 394 (1973); McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974); Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977); Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978); Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979); Spillers v. Housewright, 692 F.2d 524 (8th Cir. 1982); Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982); Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988); Stevenson v. State, 25 Ark. App. 318, 759 S.W.2d 220 (1988); Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992); Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993); Jones v. State, 314 Ark. 383, 862 S.W.2d 273 (1993); Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995); State v. Webb, 323 Ark. 80, 913 S.W.2d 259 (1996); Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997); Young v. State, 370 Ark. 147, 257 S.W.3d 870 (2007).